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Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

Administrative Law Outline

I. The Administrative State – derives power from:
a. Constitution
b. Administrative Procedure Act
i. enacted in 1946 as response to increase in administrative agencies formed by New Deal legislation- created specialized agencies to promote competition and benefit public welfare
ii. created notice-and-comment rulemaking procedure (§ 553); adjudication mechanism (§§ 556 &557) ; “arbitrary and capricious” standard of judicial review (§ 706(2)(A))
1. conservatives favored agencies have adjudicatory authority (process to protect individual rights)
2. liberals favored agencies having ability to make rules (focus on rights of society)
3. both sides happy
iii. organic statutes, not APA, dictation whether agency action will be formal or informal
iv. organic statute may dictation procedures of agency
1. absent statutory mandate, agencies can decide whether to implemental policy through adjudication or RM (SEC v. Chenery (U.S. 1943, 1947))
v. § 553- Rulemaking- informal, notice-and-comment proceeding (p. 20 in notes)
1. (a)- certain exceptions
2. (b)- notice requirements
3. (c)- opportunity for comment by interested parties required
a. civil republic ideal- allow individuals to submit opinions to be considered in policymaking (not done in legislating)
b. agencies develop expertise to use in RM

Rule Making



All: publication- §552(a)(1); petitions to alter rules- §553(e)

Substantive only: notice, participation, statement of “basis and purpose,” 30-day delay between publication and taking effect- §553.


Notice- §553(b); hearing- §556; intermediate and final decision- §557; 30-day delay between publication and taking effect- §552(a)(1); petitions to alter rules- §553(e).

Notice, informal settlement; separation of functions- §554; hearing- §556; intermediate and final decision- §557; declaratory orders- §554(e).

c. Applicability of APA
i. Wong Yang Sung v. McGrath (U.S. 1950)- INS deportation hearing is subject to APA requirements
1. first judicial review of APA
2. J. Jackson found that although APA only covered “hearing required by statute,” that included hearing required by Constitution (this case- writ of habeas corpus)
a. looked to APA to see what kind of process was due
b. Jackson had a fluid, adaptive approach to APA- follow the text of APA
c. APA drafters wanted to instill global organization and structure to administrative activity
ii. Dickinson v. Zurko (U.S. 1999)- Court held that APA standard of review (substantial evidence) applies when Federal Circuit reviews findings of fact made by PTO
1. Fed. Cir.

tical- APA should have same meaning across the statute
2. horizontal- APA should have same meaning through time- use constant 1946 meanings of words
e. Authority of administrative agencies
i. agencies authority to regulate activity comes from legislation- Congress grants power to agencies to come up with rules to govern behavior
1. non-delegation issue- Congress cannot delegate its power to legislate
2. but Congress cannot be expert on all areas of life/society/business
3. administrative function is to resolve polycentric controversies- more than judicial resolution of bi-polar disputes (Strauss p. 245)
4. therefore court has role to prevent Congress from giving away too much power but giving enough away to not have Congress grind to a halt legislating technical and detailed issues
ii. prior to creation of agencies, tort law regulated conduct
iii. there is a tension between courts, APA, organic statutes
iv. struggle of legitimacy of administrative agencies
1. their adjudication and lawmaking functions are legitimized by being subjected to judicial controls
2. their procedures make them legitimate
II. Procedural Framework for Administrative Action
a. Constitutional due process
three step due process inquiry: