Select Page

Administrative Law
Villanova University School of Law
Brennan, Patrick McKinley

Fall 2010
I.     Introduction
A.    General
1.     “The rule of law, not of men”
2.     Most law is made by agencies
i.      Make rules and adjudicate cases
a.     But cannot make statutes and are not courts
ii.     \ are quasi-legislative and quasi-adjudication
3.     Examples:
i.      Romania à stopped and police asking for bribes to be allowed to continue travels
a.     Arbitrary
ii.     TSA à must take off shoes; it’s the rule, but it’s not written anywhere
a.     Adhoc assertions by government agents to be able to exercise personal liberty
4.     The role of courts in agencies à legitimatizing
i.      One-third of SCOTUS formerly practiced in administrative law à Scalia, Breyer, Kagan
B.    What is administrative law?
1.     “an intuition of experience that outruns analysis” – Holmes
i.      TSA example
2.     Landis à “one of the ablest administrators . . .  never read the statutes he translated into reality”
i.      Conflict that modern administrative state can solve problems without getting hamstrung with clunky statutes
ii.     Expertise of agencies is the solution
iii.    But … counterargument is that “legality” in agency administration is not correctness of outcome, but the proper taking of factors or values into account in decision making
a.     Result vs. procedure
3.     Origin of agencies
i.      “felt need” – Vining
a.     Congress lacks the expertise to get into particulars
b.     Perceives the problem and its own shortcomings
c.     \ created statutes creating agencies à organic statutes
(1)   Organic structure à powers of the agency
(2)   Case law à interprets the organic statute
(3)   Analogized to an onion à agencies themselves interpret the statute
(i)    Extent of court’s deference to agencies
(a)   Why is court or agency better equipped to have the last word
d.     Agencies can become overzealous à overly invested in its own mission to the exclusion of incidental damage
(1)   \ falls to courts to act of referees
ii.     Formation of agencies began in 19th century and has been growing ever since
a.     Not until Reagan was there scaling back
b.     Solved social problems
(1)   Before agencies, solved by:
(i)    Congress
(ii)   Torts
(a)   Left it up to the individual to solve
(b)   Agencies shifted resolution to the government, who has responsibility to harmonize
c.     Interstate Commerce Commission (1887)
(1)   Regulated railroads
(i)    Used to be dealt with through torts
(ii)   Railroads and other modes of transportation basically revolutionized tort law
(2)   Repealed in 1985 but gist is the same
(3)   Reflects government taking responsibility rather than the individual
(i)    Solutions should be systematic and expert
(a)   Not arbitrary
(4)   Eastman à clearly nonpartisan and politics should not enter
(i)    Independent and without political motivations
(a)   But appointed and removed by POTUS
(b)   Do they regulate differently if appointed by different POTUS?
(5)   Landis à reflects what people were thinking in that period
(i)    Prevailing understanding about administrative law was in that period
(ii)   Question whether it should be normative
(iii)  Usually will work itself out in respective periods
(6)   Alternatives to agencies
(i)    Ex.: bathrooms in X Hall
(ii)   Contracts, torts, direct statutes
C.    Structure
1.     U.S. Constitution
2.     Statutes, cases, CL norms
i.      Administrative Procedural Act (APA) à second-level Constitution
a.     APA to agencies is like Constitution to government
b.     Attempts to bring order and structure to what random assemblage of agencies à systematic reform
(1)   Provides detailed procedures for agencies
c.     No longer read alone à APA must be read with interpretative case law
d.     Neither side was happy
(1)   Conservatives à took too much power away from Congress
(i)    Their victory à quasi-judicial behavior must go through a lot more procedures
(a)   Requires more than  what liberals wanted
(b)   Can go to courts but the standards of review are subtle
1)    Balance struck
2)    Limited judicial review à not plenary review
3)    Otherwise would defeat agencies by requiring

2.     “independent” agency
i.      Really independent?
ii.     Executive power in one POTUS, so this is like the fourth branch
a.     Pursuant to what authority
iii.    Typically headed by 5-7 people, appointed by POTUS
a.     Staggered terms
b.     Usually requires representation of both political parties
c.     POTUS statutorily prohibited from dismissing from term of service
(1)   But not absolute
(2)   Point is to insulate against presidential control \ independent
(i)    Humphrey’s Executor
3.     Hybrid models
4.     Agent and principal
F.     Agencies and the Three Branches
1.     Uncertainty about where agencies fit
2.     Delegation
i.      Congress shifts its power to POTUS and courts
ii.     Larger role in superintending what agencies do
iii.    Division of modern administrative law
a.     Major shifts in understanding legitimacy and aims
3.      Agencies collapse the tripartite and engage in quasi-legislative and quasi-judicial behavior
i.      \ constantly in crisis
ii.     Period is very relevant à look to history
a.     ICC (1787-1887)
(1)   There were agencies because POTUS cannot do everything
(i)    Agent-principal à agents of Congress working with POTUS to carry into effect what principal wants
(ii)   \ surely anticipated by Constitution
(2)   ICC is the first independent agency
G.    History
1.     Madison
i.      The early republic
ii.     Trespass or conversion
iii.    Ex.: postal roads
iv.    Viewed SOP was way to prevent tyranny
a.     Government differs from ordinary life
b.     But … government should follow private business
2.     Progressive Era (1887-1933)
i.      Eastman