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Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

Administrative Law
Professor Brennan – Villanova Law School
Spring 2013
INTRODUCTORY NOTES
·         WHAT IS ADMINISTRATIVE LAW? WHAT IS AN AGENCY?
o   What is an agency? See page 8
§  They are all created by statute (organic statute)
·         Doesn’t include all rules/policies, but does assign content specific duties
·         Procedures/rules are contained in the APA (second level constitution)
o   Must conform unless exempted by organic statute
§  No APA positive definition (only a list of things that are not agencies)
·         Each authority of government, not including:
·         Congress, courts, local governments, etc
·         Some are “specifically excepted” from APA requirements.
o   A-D governed entirely by the APA (not including FOIA)
o   E-H governed by FOIA (Taj Mahal of unintended consequences)
§  Lots of abuse – sharply raises transaction costs.
§  Rule: unstated, but FOIA (§552) does NOT extend to the President’s office.
·         “Textual silence isn’t enough to subject President to APA requirements.”
o   see Citizens for Responsibility and Ethics in Washington
·         Also includes those who assist the President.
§  Substantial Independent Authority Test:
·         Whether the entity wields substantial independent authority of the P?
·         Example (Citizens for Responsibility and Ethics in Washington)
o   Examine the relationship between the (OA) and President.
o   Look for “ministerial service”
§  The OA helps the president, but does not do so in such a way that it is protected from FOIA claims.
§  Limited to data processing types of tasks
·         Court easily held no substantial independent authority.
o   Distinction between alphabet agencies and independent commissions.
§  Standard agency (under thumb of P –appoints/removes)
·         Headed by single individual
·         Appointed by P with advice and consent of Senate
·         Can be dismissed at will (removal power)
§  Independent commission (independent of P)
·         Run by group (usually 5)
·         Appointed by President
·         For terms of years (staggered terms)
o   Must reflect party diversity.
·         Example – interstate commerce commission
o   Summary of current state of affairs:
§  Acknowledges problem of capture, denies courts ability to enact procedures, but establishes hard look review:
·         Hard look review is a response to the capture theory.
·         Gives courts a far more aggressive role in judicial review.
§  706.2A – agency actions set aside unless arbitrary and capricious
·         Lunacy test – agency assumed to be experts
§  HUGE inconsistency with the current state of the law and the APA text.
·         This is the point of conflict between Breyer and Scalia
o   Admin law evolved to govern the agencies created to solve various problems.
§  Vinning:
·         Review:
o   Agencies created because of institutional deficiencies (felt need)
o   But courts have ended up being the guardians of agencies.
·         Agencies come into being out of “felt need”
o   Deals with the subject matter Congress cannot regulate with the necessary specificity.
o   Agencies – defined subject matter, limited by APA procedures.
·         It’s not about whether the agency reached the right result, but whether the agency has considered the problem in a defensible way.
o   “Legality isn’t about the correctness of an outcome but rather the proper taking of factors or values into account in the making of a decision.”
§  Not about the right outcome, about good process (look at the right factors then make a decision)
o   Courts must be able to review agency actions without simple rubberstamping but also allowing them enough discretion.
·          Tension between total lawlessness (Romania) and unwritten ad hoc policies (airport)
o   Agencies exercise creativity but are not totally lawless.
§  Holmes:
·         Administrative bodies based on “intuition of experience that outruns analysis”
·         Agent’s power to define the scope of my liberty (potential for abuse)
o   You want the TSA agents to be free to act on their experience and be responsive to the situation (within limits of course)
o   But where is the limit?
§  More than my shoes, do I really want this type of intuition to have authority?
§  Landis note (page 38)
·         Men that are bred to the facts
o   Trustworthy –understand the system and are close to the facts.
·         Separation of powers was a new concept at the America’s founding.
o   Solving the problem of the overreaching King (Divide powers to limit it)
·         “That fineness of logic-chopping that characterizes our courts permits us as will to discern a legislative or judicial power when we are eager for a determination; at the same time it permits us to avoid decision by the establishment of new categories of quasi-legislative and quasi-judicial powers.”
o   Agencies have much of the power traditionally held by ot

al public meaning
·         What ordinary hearers at the time of the C’s ratification would understand the Constitution to be.
·         Reading it as a recipe -> meanings do not change over time.
o   But the C Preamble is very different from a recipe.
§  It has aspirational elements.
§  But then goes on to give a formula.
·         Formula – separate power into three groups.
§  At variance with the current interpretation of SCOTUS
o   Constitutionality of the modern administrative state:
§  Whatever you think about the C, it clearly sets out a limited government.
§  Methods for resolution:
·         Argue flexible Constitution (accommodate modern administrative state)
o   Talks about heads of admin depts (Anticipates agencies)
·         Reject original public meaning as interpretation of the Constitution
o   Our world is different today, Constitution not a specific recipe.
§  Constitution is silent on the matter of interpretation.
§  It doesn’t say “Interpret me by my original meaning.”
·         Ackerman theory (informal amendment)
o   Constitution provides for amendment, and has been amended through means other than the formal process.
o   Original term “constitution” = what constitutes “the people.”
§  Does not necessarily have to be a written document.
§  Written constitution is a subset of this older view.
·         Precedent is part of our understanding of what the law is.
o   Const has been construed as consistent w/ modern administrative state.
§  If this precedent is NOT LAW, then what is it?
§  Can’t pretend that these cases don’t exist.
·         Constitution Damage Control
o   Accept some of it as necessary and try to limit it where possible.
o   Toothpaste analogy:
§  Can’t really get rid of the administrative state now
·         Landis View:
o   Acknowledge openly and honestly that you cannot have allegiance to both the administrative state and the Constitution.
§  Sep.  of powers is nothing more than “logic chopping”