Select Page

Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

Administrative Law


Spring 2014

I. Introduction

A. What is administrative law?

1. Meaning – is the law concerning the powers and procedures of administrative agnecies, including especially law governing judical review of administrative action.

a) includes the entire range of action by government with respect to the citizens or by t he citizens with respect to the government except for matters dealt with by the criminal law and those left to private civil litigation where the government’s particlpation is in furnishming an impartial tribunal with the power of enforcement.

B. What is an agency?

1. Kenneth Culp Davis – Meaning – a government authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.

2. APA – Statutory Definition – 5 USC §551 –

(1) ”agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include

(2) Entirely exempt form APA governance:

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia;or except as to the requirements of section 552 of this title –

(3) not exempted form APA §552

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix.

3. Common Law – Agency definitions

a) President – Supreme court declared that the president is not an agency for purposes of the APA under Franklin v. Massachusetts.

b) Other legislative and judicial government offices – the court has defined agency broadly to encompass other government office in the legislative and judicial branch.

II. Congress and Agencies

A. Delegating law-making power: the non-delegation doctrine

1. Constitutionality of Delegating Policymaking Authority

a) Non-Delegation Doctrine – Art. I, §1 vests “all legislative powers” in Congress. The Supreme court has held that Congress could not delegate the legislative power. Agencies – they exercise quasi-legislative powers. They exercise broad power to regulate

a) What are the limits for the broad delegation of powers?

(1) Panama Refining Co v. Ryan – the court held that the delegation of power from Congress too broad.

(2) Schechter Poultry Corp. V. US – Limits the broad delegation of power from Congress.

2. Limiting principle – Agencies are subjected matter limited. There are some limits. It can regulate in the interest of the public.

a) Congress is required to regulate and Agencies are allowed to regulate and have delegated powers in the interest of the public only. Agencies have to resolve the ambiguities that come from congress.

b) Congress would have to step back into clear the ambiguity created.

3. The Brig Aurora – the early cases give the President the right to determine if something has happened – as the fact finder. The court allowed this right to be delegated by congress on to the President.

4. Legislative standards test – Congress could delegate legislative power if it set standards sufficient to limit the scope of the agency’s discretion. Buttfield v. Stranahan.

a) Congress must create the standards of legal obligation (Schechter v. U.S)

5. Intelligible principle – New standard – a statute delegating power to an agency could be upheld if it establishes an intelligible principle to guide the exercise of that power. J.W. Hampton v. US.

a) Panama Refining Co. v. Ryan –

(1) Facts – The statute, NIRA, authorized the president to prohibit the transportation of interstate and foreign commerce of hot oil such as pertorlem. The statute stated what the president was authorized to do but no guidance was given in limiting the president whether to not to take such as action.

(2) Court – The statute violated the nondelegation principle because the court stated that the statute gave the president an unlimited authority to determine the policy and to lay down the prohibitions, or not to lay it down, as he may see fit.

(3) Dissent – J. Cardozo – disagrees in the application and not the principle – he states that the president has limits within the statute. The means have been prescribed by Congress. The operation of the standard is to prohibit trade that would be ecnomically undesireable. The dissent find it more consistence with the finanacial legislation used previously. P. 30. à“terms of the act of a standard reasonably clear whereby discretion must be governed”

b) Schechter Poultry Corp. v. U.S.

(1) Facts – the statue limited the trade practes within NY live poultry industry by fixing prices and prohibiting unfiar methods of compentition.

(2) Court – unfair competition violates the non-delegation principle because Congress has not enacted standards of legal obligati

ssion creates the guidelines which is the duty of congress to do. The sentencing commission is created to make the guidelines and only the guidelines. That is the only purpose for the commission.

(a) Ambiguities are for Congress to make the decision and make the corrections to specify what the law is. The commission is not helping with the ambiguity or executing the statute. They are creating the guidelines and thus, acting like legislatures.

(b) P. 51 – The degree of discretion inheres in most executive or judicial actions.

4. New non-delegation doctrine?

a) Whitman v. ATA – J. Souter & Stevens – if congress creates statutes to delegate legislative powers to the agency, then the statute would pass Schechter and Panama. This solution ignores the constitutional issues.

(1) Court – J. Scalia – The court is not going to second guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.

(a) Rule – An agency cannot cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute.

(2) Concurring – J. Thomas – He differs from the court by stating that the constitution limits the legislative branch from delegating it. He accuses the court of pretending that there is a legislative power. A quasi-legislative power is not really existing.

(3) Concurring – J. Stevens – if congress has given the agency authority to legislate then that is sufficient intelligible principle.

5. The Future of the non-delegation doctrine

a) The courts have clearly rejected the non-delegation doctrine as a canon of statutory construction requiring agencies to adopt narrow interpretations of the statues that they administer in order to avoid the doctrine’s implication as in Benzene.

6. If broad delegations are problem, are detailed instructions the answer?

a) Overview – The court has indicated that broad delegation of vast power to agencies are undesirable. Congress often creates serious problems when it addresses policy issues with clarity and particularity and gives agencies detailed instructions.