Select Page

Administrative Law
University of Toledo School of Law
Kennedy, Robin M.

Professor Kennedy
          Administrative Agencies and Administrative Law
I.             What is Administrative Law
a.     Gilmore v. Lujan
i. Agencies have broad power
ii.People dealing with agencies are bound by rules and regulations enacted by the agency
iii.Power of the court is limited
1.      Particularly to questions of fact and
2.     Application of law to those facts
3.     Court only has power to force agency to act within its power
b.     Purpose of administrative law
i. Powers vested in administrative agencies
ii.Requirements imposed by law upon the exercise of those powers
iii.Remedies against unlawful administrative action
II.           Administrative Agencies
a.     Introduction
i. Independent Agency
1.      Agency created by congress that consists of a collegial board and not subject to removal by the president EXCEPT for good cause.
a.     Their independency comes from their “fixed” term of appointment.
b.     In essence, the agency can defy the executive and legislative bodies
2.     Advantages
a.     No political pressure
b.     Objective and neutral in adjudication
3.     Disadvantages
a.     No political accountability
b.     Members of agency cannot be removed
ii.Executive Agency
1.      Agency created by the President and subject to instant removal by the president by virtue of the power of appointment and termination.
b.     Appointments Clause Test
i. The power to appoint is the power to control
1.      Officers of the US are appointed by the President with the advice and consent of the senate
2.     Inferior officer: While courts continue to struggle with this topic, inferior officers are generally Subject to a superior officer, have limited tenure, duties, and jurisdiction, and are subject to removal by higher executive branch official.
a.     Congress must grant power to appoint in the
i. President
ii.Heads of Departments OR
iii.Courts of Law
ii.Interbranch appointments are permissible if
1.      Appointment is not incongruous with functions of the appointing branch AND
2.     Interbranch appointment established by statute.
c.     Application of Appointments Clause Test
i. Freytag v. Commissioner of Internal Revenue—Appointment Power granted to Federal Tax Judge: Distinction between court and agency—Is the federal tax court an agency or court of law?
1.      APPOINTMENTS CLAUSE: The president has power to appoint officers of the United States under the Constitution, subject to the advice and consent of the senate. However, congress may grant the power to appoint inferior officers by statute to the President, heads of departments, or courts of law.
a.     Congress can create Article I courts. If unclear whether it is an Article I court:
i. Compare the Article I court to the duties of Article III courts.
1.      Decide federal law?
2.     Conduct trials, hear evidence, typical courtroom matters?
ii.If yes, it is a court of law, and the appointment does not need to conform to the presidential appointment subject to advice and consent of the senate
III.        Agencies and Independence
a.     Separation of Powers Test
i. Is the agency committing an act outside its powers
ii.What is the harm to the coordinate branch that is complaining
1.      Is the act incidental to the operation of assigned agency power
2.     Is the act by the offending branch necessary
3.     Are there any limitations on power
a.     Shared power OR
b.     Power Grab

s clause:
ii.Appointment was authorized by statute AND
iii.Appointment was not incongruous with the functions of appointing branch because
1.      Courts (judicial branch) and prosecutors (executive branch) work together
c.     Separation of powers
i. Specific—Executive branch claimed that the provision limiting removal power over the special prosecutor violated separation of powers. HOWEVER,
1.      All three branches of gov’t were involved in the removal of the Special prosecutor.
2.     Congress has power to create INDEPENDENT agencies
3.     President cannot have sole power of removal
4.     Humphrey’s Executor: SP here is not exercising purely executive power, but quasi-judicial and legislative power. Executive power is only incidental to those functions.
ii.General—The act as a whole violated separation of powers because it interfered with the role of the executive branch. HOWEVER,
1.      No power grab by congress
2.     No power grab by the courts
3.     Only slight infringement with the executive
iii.Compare Bowsher and Morrison
1.      Bowsher is a formalist approach to the separation of powers issue
a.     Relies primarily on textual reasoning.
2.     Morrison is a functionalist approach to the separation of powers issue
a.     Recognizes that power overlaps among the three branches
b.     Cooperation among the three branches is required so government can work