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Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

Admin Outline
Law governing Administration
1.        Constitution
2.        Administrative Procedure Act of 1946 (APA)
3.        Agencies Organic Statute
4.        Generally applicable statutes- ex. Natural Environment statute
5.        Common Law expectations
o   Courts reviewing agency actions and referring to common law to use as legal norms          
§ Clarity
§ Consistency
§ Fairness
6.        Executive Orders
o   More common among modern Presidents
o   A lot of debate as to extent of power
o   They do not create a right for citizens of enforcement in court
§ But agencies comply to keep budget
1.        1777-1887
2.        1887-1933
o   Agencies were a minimum
3.        1933-1952
o   Start of Modern Gigantic Administrative state
o   A lot of enthusiasm for agencies
4.        1952-1960
o   Same thing
5.        1960-1980
o   People beginning to think less of agencies, thinking they need more watching and policing
6.        1980-Present
o   Reagan, and Bush I, reduced agencies
o   Clinton saw a revival
o   Scalia and Breyer have strong opposing views about role of Administrative agencies
What statutes and interpretations are agencies using.
1.      Plain Meaning
2.      Structuralism-words given meaning from their context
3.      Legislative history
4.      Cannons or principles of interpretation
Londoner and Bi-Metallic are still important in the sense that they laid the groundwork for modern administrative law, and were the groundwork for the APA, but the APA is somewhat different
·          Londoner v. Denver
·          Supreme Court held that Due Process rights under the U.S. Constitution attach to administrative agency hearings which involved adjudication, but not those which involve rulemaking.
o    Due Process rights attach to governmental activities that are adjudicative in nature, but not to activities which are legislative in nature
·          In the context of taxation, a legislative body has the power to tax without affording citizens due process protections.
o    However, when the decision to tax particular individuals is made by a non-legislative body based on the individual facts and circumstances of a particular case, the decision becomes adjudicative in nature, and due process protections attach.
o    These due process protections do not require a full trial, but the mere opportunity to file a written statement is insufficient.
·          Bi-Metallic
·          Due process protections only attach to administrative activities in which a small number of people are concerned, who are exceptionally affected by the act, in each case upon individual grounds.
·          It would be impractical to allow all individuals affected to offer a direct voice in support of or in opposition to an order.
·          Thus, the Constitution is satisfied by the fact that, as voters, the taxpayers involved exercise power, remote or direct, over those responsible for the order.
·          Yesler Terrace v. Cisneros
·          A rule is “the whole or part of an agency statement of general or particular ability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.”–APA
·          Adjudications resolve disputes among specific individuals in specific situations, whereas rulemaking affects the rights a broad range of unspecified people.
·          This case deals with the adequacy of due process awarded to someone.
o   It states that the “form of the proceeding is not dispositive, what counts is its effect.”
4 modes of rulemaking and adjudication
1.      Sec. 553 deals with informal rulemaking
a.       Sometimes referred to as notice and comment rulemaking
b.      Agencies have the power to do this, giving them a lot of power
2.      Sec 553c said that 556 and 557 deal with formal rulemaking, or “on the record” rulemaking
3.      Formal or “on the record” adjudications are governed by 554 and 556 and 557
4.      Informal adjudication is not governed by any rules
o   When an agencies steps in the shoes of congress (rulemaking), agencies are like congress in that people do not have a constitutional right to gripe to the agency, no due process
o   When an agency steps in the shoes of the court, there is a different level of authority the agency has in adjudication, the due process can therefore be served through direct due process(appearance in court), or indirect (voting)
o   Agencies can use adjudication to change the law all the time
The New Deal
·          Panama Refining Co v Ryan – held that an executive order issued under §9(c) of the NIRA gave the president too much discretion to exercise authorized power (i.e. no controls on when he should do so, too many conflicting standards and no guidance on how to choose among them)
·          A.L.A. Schechter Poultry Corp v US – held that this was an impermissible delegation of legislative authority (to make the code governing competition in poultry industry) to a private group
§   The court in Panama and Schechter did not want to give congress a test, because they hoped to avoid congress, who had given away a ton of power during the new deal, beginning to introduce legislation that would test the limits of a so called test
·          Benzene Case-Before Mistretta, but good to understand in terms of non-delegation
o    —Section 6(b)(5) of the OSHA statute sets the principle for creating the safety regulations, directing the Secretary to “set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity…”
o    Stevens found that 3(8), not

ate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”
·          A spark of life in the nondelegation doctrine after Mistretta?
·          NO, but these cases do limit it somewhat
·          American Trucking
§ They state that it is contradictory to ask an agency to cure the problem of an unconstitutional principle by simply restraining themselves-this is not a solution to the non-delegation problem
§ Only way is to find if the statute itself contains an intelligible principle
§ However, Scalia doesn’t rule that this was a violation because it is not appropriate for judges to interpret whether a statute is an appropriate intelligible principle
·         Should be job of congress
·          It is worth noting that the case of South Dakota v. Dep’ of Interior found that an agency act violated the nondelegation doctrine, but remanded the case to allow the agency to reconsider its doctrine.
§ How can an agency be allowed to reconsider its doctrine when the whole delegation was unconstitutional???
Legislative overrides
·          Statutory overrides
o    Congress does always have the power to amend the organic statute or even eliminate the agency
o    More often though, congress can leave in place the agency’s basic authority but overrule, on a case-by-case basis, specific exercises of their authority
·          Legislative vetoes
o    Gives agency discretion that is conditional on subsequent approval by congress, or even legislative committees
§ Gives power to congress to override agency decisions without going through the full article 1 process
o    This action is more likely and attractive device than statutory overrides
·          INS v. Chadha
o    The Immigration and Natural Act authorized one House of Congress to invalidate the decision of the Executive, pursuant to authority delegated by Congress to the Atty General, to allow deportable aliens to remain.
o    Ultimately, Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.