Select Page

Administrative Law
University of Wyoming School of Law
Duff, Michael C.

Administrative Law Outline
 
I. Introduction
 
A. Chief Executive’s Appointment Power
 
1. Appointment of Officers and Inferior Officers (see handout)
 
“Appointments Clause” – Article 2, Section 2
The President shall nominate and appoint all officers of the United States whose appointments are not otherwise provided for in the Constitution of by law, but Congress may enact laws allowing the President, Heads of Departments, or Courts of Law to appoint inferior officers
 
Buckley v. Valeo (1976)
Principle officers
Must be appointed by the President with the advice and consent of the Senate
Congress cannot appoint executive officers
Cannot take power away from the executive by appointing officers with executive duties
Inferior officers
Congress may allow inferior officers to be appointed by the President, Heads of Departments, or Courts of Law
Edmond
Generally speaking, “inferior officer” connotes a relationship with some higher ranking officer or officers below the President
Employees
People who do not exercise “significant authority pursuant to the laws of the United States” do not need to be hired pursuant to the Appointments Clause
 
Morrison v. Olsen (1988)
Special court appoints an independent counsel to investigate executive officials
SC holds that the independent counsel was an inferior officer and, therefore, a Court of Law could appoint her
Her appointment was temporary, she was limited in jurisdiction, and was removable by the Attorney General for cause
Removal
President could not remove her without good cause
Must look to whether a restriction on the President’s removal impede the President’s ability to faithfully execute the law
“For good cause” restriction does not
 
2. Removal Power (see handout)
 
Constitution is silent as to the removal of officers, but there is significant case law
Presidential Removal Power
Myers (1926)
Purely executive officials may be removed at will by the President
Humphrey’s Executor (1935) – old standard
Congress can condition the President’s removal power…
President could not remove an FTC commissioner without good cause
This was not a purely executive role but included quasi-legislative and quasi-judicial powers
Morrison (1988) – modern standard
See above
Legislative Removal Power
All executive powers must rest with executive officials
Congress may not remove executive officials
Bowsher v. Synar
Congress assigned the Comptroller General authority to execute an Act so he clearly had executive duties and is, therefore, not subject to legislative removal
 
II. Delegation of Power to Administrative Agencies
 
A. Delegation of Legislative (Rulemaking) Power to Agencies
 
Executive Agencies
Agencies created by Congress, but are within the Executive Branch
The President has Appointment (and Removal) Powers and the “take care” power (to ensure the laws are faithfully executed)
Typically Cabinet departments headed by a Secretary
 
Independent Agencies and Commissions
Created to give these agencies some independence from the Executive
Officers may be removed only for cause
Political party balance – multi-member boards
Only a bare partisan majority can be appointed by the President and confirmed by the Senate
Officers have staggered terms
Most statutes allow them to represent themselves
Most have independence from OMB in the budget process
Examples        
NRC, SEC, FCC
Article I, Section 8
Congress shall enact all laws that are necessary and proper to implement its other functions
To what extent can Con

regulatory purposes, and
The essential judicial power remains ultimately in the courts through review of agency determination
 
Reviewing Article III courts shall set aside agency action, findings, and conclusions in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
 
III. Substantive Statutory Checks on Agencies
 
A. Statutory Interpretation and Judicial Deference
 
Weak Deference
In reviewing the legal meaning of a statute, a court gives the agency’s interpretation weak deference but may override it if they are so persuaded
 
Strong deference
Chevron
Two step process:
1)
The court decides whether the statute being interpreted has a clear meaning
Courts should use traditional rules of construction
If agency’s interpretation conflicts with clear meaning, it is invalid, BUT if the statute is ambiguous in relevant aspects, the court proceeds to step 2
2)
The court asks whether the agency’s interpretation is reasonable
 
Chevron deference does not apply to non-legislative rules or informal adjudication
 
IV. The General Law of Agency Procedures
 
A. The Adjudication – Rulemaking Distinction
 
Adjudication
Government action that affects identifiable persons on the basis of facts peculiar to each of them (adjudicative facts)
Ex. Tax increase for a few individual storeowners based on different individual factors
Procedural due process applies