Professor Brennan – Villanova Law School
· 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.
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.
· 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”