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Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

I. Agency Origins Forms and Functions:
What is an agency?
1) APA- (1946) Administrative Procedure Act statute which regulates federal administrative agencies, defines Agency: each authority of the government of U.S. whether or not it is within or subject to review by another agency does not include 1) Congress 2) Courts 3) territories of US 4) agency composed of rep. of parties 5) military comm../martial courts
2) Whether a govt. unit constitutes an authority (agency) depends on: its power, responsibilities, its formal structure, even a single person can be an agency (Attorney General)
3) Congress can define agency for its own purpose, APA, but can’t decide what is an agency under the Constitution
4) Bottom Line: For purposes of the APA, a unit is an agency if it is sufficiently important in terms of decision making power and responsibility to warrant being called agency.

Where do agencies come from?
1) Constitution doesn’t create them rather, congress is given power “to make all laws which shall be necessary and proper for carrying into execution” all units of the government except the Pres, vice pres, congress, supreme court are created by congressional statute
2) Behind every agency lies a legislative act or ORGANIC STATUTE- creates, empowers, defines, limits agency
3) Constitution can limit the way in which Congress creates/structures agencies (ch. 2)

Structure of Federal Agency:
General Classification
1) single headed or multi-headed- the ppl at top with ultimate decision making authority
2) (a) Executive agency: some simply serve at pleasure of Pres. –can fire anytime or any reason, subject unlimited Pres. Removal power (b) independent agencies: give tenure in statute, can be removed earlier but only for good cause/misconduct by Pres.
– most single head are executive- political accountability
-most multi are independent – scientific govt. management, disinterested professionalism

A. Agency Functions Rulemaking v. Adjudication:

1) formal legal effects 2) non-binding action: Agency spends most the time in the second category: researching, planning, deliberating
2) Rulemaking: looks like legislative action, passing a law, results in statute like function
3) Adjudication: looks like court deciding case, result in an order/judgment

4 theories distinction between Rulemaking and Adjudication:
1)General v. Specific: general= rule specific=order
2) Prospectively v. Retroactive
3) Degree: general/specific and retro/prospect generally a matter of degree
4) perspective: all the categories simply depend on who’s prospective you adopt; agency mae rule on shipping produce on a particular RR ( general to shipping industry v. particular to RR )

John Dickinson (1) (2): nothing agency does is entirely judicial or legislative, it seems that judicial would look backward more and operate upon individuals in their individual capacities. Whereas, legislative is more general affects an entire industry and looks forward.
Ralph Fuchs (1)(2): rulemaking operates to the future, almost all govt. orders prescribe or forbid a future act. Applies more generally, class of ppl; Adjudication is based upon past facts and existing laws, applies to individual ppl

B. Cases: Londoner / Bi-Metallic

Londoner: Adjud. Con Imposes Some Procedure
1) city wants to makes improve/ pave certain road, when the city makes such local improvements properties who benefit are reassessed for taxes.
2) In order to go forward need notice and comment rulemaking, instead the homeowners at issue received notice and were told to file written complaints which would be addressed, counsel procedured w/o hearing to address complaints as if none were filed
3) never afforded the opportunity to be heard because the board met in a special session.
4) court held some sort of hearing required beyond written submission, don’t need court hearing but need more then what was afforded here

Bi-Metallic: Rulemaking Con Imposes No Procedure
1) 1915 Justice Holmes- increased taxable property in Denver by 40%.
2) Issue is whether all individual taxpayers have a constitutional right to be heard before matter decided?
3) Holding- when rule applies to more than a few ppl impractical for everyone to be heard. Here proper state function, vote for your officials indirect power over what rules are made. There must be a limit in order for govt. to survive. Londoner- however was a small amount of ppl exceptionally affected on individual grounds.

C. APA §551(4) – (9) – definitions of RM and adjudication

i. Rulemaking = Agency process for formulating, amending, or repealing a rule
ii. Adjudication = Agency process for formulating an order
iii. Order = Whole or part of a final disposition of an agency in a matter other than rulemaking, INCLUDING LICENSING
1. License = agency permit, charter, membership, statutory certificate, or other permission. So essentially any approval/disapproval of something by an agency.
iv. Rule = whole or part of an agency statement of general or particular applicability and future effect designed to implement a policy…or procedure…including RATE (and wage) SETTING and CORPORATE STRUCTURES.
v. What about the fact that the APA seems to get rid of our generality/specificity proposition (by including both general and particular applicability in definition of a rule)? Courts seem to ignore this.

Vigil: determining what is a rule can be a difficult exercise

Yester Terrace: (RULEMAKING)
1) public tenants can ordinary only be evicted after grievance hearing before PHA, by state law the PHA wanted to evict tenants for drug/criminal offenses without hearing needed to be ok-ed by HUD first that the state law satisfies due process
2) HUD said policy was ok, PHA took advantage started evicting ppl asap.
3)HUD said policy determination not a rule but informal adjudication, this fails
4) Holding: rulemaking- effects rights of board class of ppl. Not yet identified, Future effects
– could be seen as an error because this is licensing under APA
5) Adjudication- resolve disputes for specific individuals, immediate effects
HUB determination no immediate effect allowed tenant’s to be evicted in the future, effect board group of ppl. No longer right to pre-eviction hearing
-doesn’t matter that it share characteristics with adjudication
Depends on whether nature of decision had –yet-to-be realized legal consequences

D. Theories of Agency Behavior:

1) James Madison (1787-late 1800) AGENCY BAD : govt. admin by men over men not angels, enable govt. to control ppl. and obligate it to control itself
2) Eastman (late 1800-1930’s) PROGRESSIVE Vision: agency should be nonpartisan in makeup, party policy shouldn’t ever enter strategy, agencies resolve problems put the experts in charge, court/lawyer are bad, these are professionals unconcerned with politics, they will remain objective and do their job, court shouldn’t tell these professionals how to do their jobs, little to no restraint needed,
Political progress job to set the goals, the agencies figure out how to accomplish them, legal intervention only to make sure these experts are considering the right questions
3) Landis (1932-1950) AGENCY GOOD : here agencies don’t just resolve problems but define those problems as well, these are not c

action contrary to Pres. Policy can exercise instructional voice
-second might be better: courts don’t focus on this however focus on instead removal power, this is of little constitutional significance because doesn’t satisfy art II

Art III calls for an independent judicial branch, admin agency often adjudicate disputes but lack authority under Art III, not every adjudication is judicially, clearly criminal is, denying a privilege for example doesn’t need to be judicial,

Separation of Powers: crowning jewel modern admin state combines all three powers, 1) produces rules of conduct 2) decides whether to authorize investigation 3) performs the investigation 4) prosecutes and adjudicates the violation of rule 5) appeal back to itself

(3) What can we Do? 1) agree the Constitution is flexible enough to accommodate modern admin state 2 )insist the two can be reconciled if reject original meaning of public. 3) agree constitution has been validly amended through other means than formal amendment (Big Bang theory) 4) constitutionals damage control, admin state here to stay try to even things out 5) acknowledge openly and honestly that have conflict can’t have both pick between Con and Admin state.


James Madison 1788: powers belonging to one department ought not to be completely/directly exercised by another, each department should have as little agency as possible in appointment of members of others, this separation of powers is to resist encroachments, abuse of discretion, obligation govt. to control itself, check each other DIVIDE AND CONQUER STRTEGY

a. Selection and removal clauses: The Constitution is extremely explicit about selection/removal of some (President, VP, Congress), but extremely vague about the millions of others that are a part of the federal government.
i. Article II, section II, clauses 2 and 3: Provisions dealing with other federal workers (including those in admin agencies). The President shall nominate and appoint, with advice of senate, a variety of other governmental officers. Nothing said about removal.
ii. Terms = automatic removal provisions
iii. Impeachment provisions are very detailed, clearly a means of removal. Power DIVIDED between 2 bodies.
1. House votes to impeach.
2. Senate votes to remove.
3. Need supermajority to impeach.
4. President’s pardons don’t extend to impeachment.
5. Any civil officer of U.S. can be impeached.
6. SC CJ presides over presidential impeachment trial.

b. SUMMARY 1788 CONSITTUTION: Strategy of divide and conquer – power is granted but dispersed among individual actors. The branches are empowered to act as checks on each other. Some provisions are very narrowly targeted at abuses of powers, almost in ludicrous detail (letting house and senate choose officers, etc.). On other major questions, the constitution is silent (selection/removal of most governmental officers; vesting clause debate, etc.).