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Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

 
ADMIN LAW BRENNAN FALL 2015
 
·         Agencies: can set prices, hold hearings, outright ban products, promulgate rules
·         Agency: any significant authority of the US that is not congress, the courts, or military power in times of war
o   comes from the statute of the APA “the constitution for admin agencies”
§  authority = high level positions, any exercise of significant gov. power
§  ex: the Sec. of agriculture
·         RULE: a final agency action that sets or interprets gov. policy without applying it to a particular factual situation (APA 551)
·         ADJUDICATION: any final agency action (other than rulemaking) as in the resolution of a dispute between specific parties
o   usually includes application of a rule to a particular set of facts
 
·         (1) Agency Structure
o   Cabinet Level vs. Independent Agencies:
§  (a) cabinet level ones are executive agencies ie they are answerable to the president (agriculture, commerce, defense, etc.)
·         usually headed by secretaries: sec of defense, etc.
·         president can fire the head of the agency with or without cause
§  (b) independent agencies: they are independent in some ways of the executive power
·         usually headed by a commission a small body of people
o   Class 1 Slide w/ chart of organization of agencies
·         (2) Creation of Agencies
o   Cong creates them via statute
o   One person heads an admin agencies because of: political endorsement of the president’s ideas, efficiency, accountability (if the secretary screw up the president is held accountable bc the pres is the secretary’s boss)
·         (3) Agency Functions
o   Two main agency functions
o   (A) rule making = like legislation and statutes
§  551: rule = an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or describing the organization, procedure or practice requirements of an agency …
o   (B) adjudication = like court opinions
§  means agency process for the formulation of an order  (adj applies rule to particular set of facts)
·         and “order” = the whole or a part of a final disposition whether affirmative, negative, injunctive or declaratory in form of an agency in a matter other than rule making but including licensing
o   i.e. anything not a rule
o   adjudication is any final agency action that produces something that is not a rule
o   The difference is important bc there are procedural safeguards that attach depending on what the agency is trying to do
o   Yesler Terrace Comm. Council vs Cisneros
§  HUD has a policy: tells WA that if you convict someone for a drug offense you can evict them from public housing, you don’t have to go through a complicated eviction process
§  I? looking at whether HUD was doing a rule or an adjudication
·         Why does that matter?
·          if its rule making à HUD had to go through procedure of notice and comment
§  Held: its rule making
§  Rationale: it has effect on a future group of people not yet identified
·         you cant just call it an adjudication to go around the necessary procedures
§  Rule: “future” is a big requirement of rule making
·         APA says it can be general OR particular
o   This case makes a distinction between agency action of particular effect or general effect
o   AIR v. EPA
§  A rule said: if the animal feeding agencies had statutory low thresholds, thay had no obligation under the act to get permits and report its emissions
·         EPA had these agreements w/ these feeding agencies but the EPA had no way of knowing their emission levels
§  Ct: we look at the effect of the thing
·         this is NOT a rulemaking, its just EPA exercising their enforcement authority
o   (EPA is enforcing a statute already in place)
§  Rule: what characterizes a rule is whether the agency is issuing substantive standards
·         This is just an enforcement decision
o   Case Sum:
§  if an agency policy is general in nature à more likely a rule
§  if its particular in nature à more likely an adjudication
 
THE CONSTITUTION AND THE ADMINISTRATIVE STATE
 
·         (A) Agencies and Congress: Concepts of Separated Powers
o   SOP = there are powers give to the US in the constitution and those powers are allocated to different branches, and one branch should not get too involved with the others
o   Agencies engage in rulemaking (like legislative branch) and enforcement (like exec. branch)
o   James Madison – The Federalist:
§  different branches must be independent of each other
§  make sure each branch can defend itself against encroachments
§  no branch should have complete control over others
§  SOP is assisted by check/balances
o   The Constitution:
§  Indicia of SOP:
·         simple fact that 3 separate clauses vest separate powers
·         congress can create inferior courts but not Supreme court
·         Bill of attainder: when Congress passes a law when someone commits a crime w/out giving them jury trial
o   cong is not allowed to do this, that’s for the courts
·         congress can declare war – President is Commander in Chief but cong declares war
·         no senate or rep shall hold any civil office during their term 
·         judges are insolated from the political process
§  Not Indicia of SOP
·         congress can create federal courts
·         legis: both the pres and legis have to pass law, but pres gets to veto
·         all of the advice and consent clauses
·         house draws up articles of impeachment(which Is like an indictment, exec function), senate tries the impeachment, chief justice resides over it
o   house is like a prosecutor, senate is like the cou

e I of the Constitution of the United States.
o   Instead of prescribing rules of conduct, it authorized the President to make the codes to prescribe them. Congress made an unconstitutional delegation because it vested in the President a clearly legislative function without imposing necessary standards and restrictions.  The act expected the Pres to implement fair competition but doesn’t define it.  Cong did not define the policy it asked Pres to implement
·         ** In this case, Pres had a vague policy he had to interpret and try to effectuate
o   (3) Post New Deal
§  “intelligible principle” à congress may delegate authority as long as congress clearly delineates the general policy, the agency which is to apply the policy, and the boundaries of the delegated authority
§  FCC case: pres. may act if public convenience, interest, or necessity will be served thereby
·         this is unlike the (i) intelligible standards and (ii) essential legislative functions bc this is a different standard
§  SEC case: “does not unduly or unnecessarily complicate the structure, or unfairly or inequitably distribute voting power among security holders”
·         there was a policy, but no standards — Ct. upheld it
§  Mistretta v US
·         Sentencing Reform Act – established a Sentencing Commish that gave judge guidelines
·         I? Can cong assign special committee the power of deciding federal sentencing guidelines?
·         Ct: YES, the Committee is ok
·         Rule: When delegating its authority, Congress need only articulate an “intelligible principle” for doing so.  In this case, the “intelligible principle” was to provide a more equal and fair sentencing guideline. 
o   an IP is when congress tells us what the goal or purpose is, standards, factors, and methods
o   Intelligible principle test: As long as the act by Congress includes an intelligible principle to which the delegee is directed to conform, the legislative action is not a forbidden delegation of legislative power.
·         **This case just comes up with a way to say what previous eras have said: vesting of authority by Cong to the Pres will be constitutional as longa s Cong has provided an intelligible principle for the Pres to implement
o   This case shifts some power to the exec
·         Scalia: JV lawmaker