Administrative Law Knudsen Winter 2017
Introduction
What are Agencies
The law governing the forms, functions, and activities of government agencies
Always thing: WHO did WHAT under what AUTHORITY
What do they do?
Investigation, study/analysis, planning, enforcement (i.e. prosecution), rulemaking (looks like legislation), adjudication (looks like what courts do)
Under what authority?
Not constitutionally established like the President/Congress/Courts
Agencies are created by congressional statutes generally called “organic acts”
Agencies are creatures of statutes
Ex.
Eras of Administrative Law
1789-1887: Madisonion skepticism of consolidation of 3 branches of power
First Congress created Depts of War, (???), and Foreign Affairs
Early agencies were thought of as “transmission belts” (implementing congressional desires)
Single-headed, executive agencies
1887-1933: Progressive Era
First scholarly accounts of federal administrative law
Creation of ICC (Interstate Commerce Commission) – first time Congress enacts a broader legislative scheme to regulate a single industry
Broad legislative mandate, important to national economy
Eastman (ICC Commissioner) believed in an activist government by impartial experts to carry out mission scientifically and apolitically
Characterized by independent, multi-headed agencies (e.g. FTC, Sherman Act, Federal Power Commission, SEC, SSA, Nat. Labor Relations Board, FDIC, FCC, Federal Reserve Board)
First big rise of administrative state
APA enacted in 1946 – Federal Administrative Procedure Act
Between Landis’s “New Messianic” View (1933-1950s) and Bernstein’s “Life Cycle” View (1950s-1960s)
Landis: Dean of Harvard Law School. Believed agencies were good – answer to the nation’s problems – and agencies should set policy, not courts
1960s-1980s: Industry Capture View
Bernstein: “Industry capture stage” – agencies and industries have a longer-term relationship, and agency will slowly gravitate toward serving industry stakeholders, regardless of mission, due to consistently hearing that voice
Agencies subject to industry pressures over time
Agencies have a life cycle (at the end of which they are no longer useful)
EPA, Endangered Species Act, OSHA, etc.
Creation of many executive agencies, due to concerns of political accountability
Broad, sweeping legislation: lots of policy-making power in hands of agencies
Agencies v. Courts as policy-making bodies
Types of Agencies
Departments, agencies, commissions, boards, administrations
APA Basics
Why was the APA enacted in 1946?
Enacted after surge of administrative governance during the New Deal
Response to a retreat from constitutional doctrines of separation of powers and federalism
Covers Four Main Topics
Agency disclosure of information (FOIA) (§552)
The availability, timing, and form of judicial review (§701-05)
The scope of judicial review of agency decisions (§ 706)
The procedures agencies must employ when making decisions (§ it depends)
Constitutional Issues
Nondelegation Doctrine (Art. I)
What is the doctrine?
The principle in administrative law that congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an “intelligible principle” on which to base their regulations.
Constitutional principle that congress cannot delegate its legislative power to anyone else, if attempting to do so, it would be shut down. Not been used since 1935.
Why is agency allowed?
Congress lacks time, resources, and expertise
Within law execution, there must be at least some sort of law making.
Every member of congress’s sole purpose is to claim credit and deflect blame.
Schechter Poultry (1936)
Who: The president
Did what: Approved the Live Poultry Code
Under what authority: 3 of NIRA authorized private bodies (essentially trade associations) to develop standards or codes of fair competition for their industry. The president then had the authority to approve the codes of “fair competition”
Result: Section 3 of NIRA is u
al problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.-Mistretta
Pros and Cons of Delegations
Pro-delegation:
Need for flexibility
Expertise
Complexity of modern government/impracticability of legislating with specificity on everything
More public deliberation (e.g. input)
Anti-delegation:
Delegations undermine accountability
Delegations pass the buck
Delegations undermine triadic system and constitutional checks, such as bicameralism and presentment requirements
Other Methods of Congressional Control (Art. I)
Statutory overrides
Legislative Veto (no longer a thing)
INS v. Chadha
Legislation providing Congress with a one-house veto over an action of the executive branch does not meet the constitutional requirements of presentment and bicameralism.
General legislation providing regulatory oversight
Congressional Review Act
Streamlines internal congressional rules for overriding regulations (bypasses the filibuster)
Dictates that an agency may not issue a new rule that is “substantially the same” as the one rejected
Applies to any recently issued regulation
REINS Act (proposed)
Appropriations
Legislative history
Informal controls (like committee oversight)
Appointments (Art. II)
Appointments Clause:
