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Administrative Law
Wayne State University Law School
Weinberg, Jonathan T.

Administrative Law
Professor Weinberg
Winter, 2013
 
 
 
 
 
Chapter 1: Introduction to Administrative Law
  Section C: The Architecture of an Administrative Agency
APA definition of “agency”: each authority of the Government of the US, whether or not it is within or subject to review by another agency, but does NOT include: Congress, federal courts, gov’t’s of US territories/possessions, courts martial or military commissions, military authority exercised in time of war or in occupied territory. 
    Legal Origin of Administrative Agencies
Bodies that are granted authority by some appropriate constitutional principal to exercise governmental functions in the name of the US.  Their origin can be traced to some legal document (statute, EO, constitution, charter, compact, rule or order), which calls them to legal life.
Congress as the principal, and the administrative body as the agent whose existence, powers, purposes, and structure are within the control of the legislative branch. 
Agencies exist to carry out will of legislature (and that is how they are legitimated as well – by having their actions dictated by an elected body) – BUT
Agencies comprised of 1000s of people who often cannot act in unified way
Congress and its balance of power changes w/each election (its “will” changes)
Objectives change, information changes, etc.
Congress’s instructions are often vague so it’s hard to tell if agency is actually achieving what Congress created it to do.
    The Forms of Agency-Creating Statutes
Purposes (organic statute will set out purposes that agency is meant to further & limits on its jx)
Developmental: gather info and assist others in pursuit of productive activities – OR:
Provision of social welfare; regulate private economic activities; protect health & safety
Powers (the legal tools w/which the agency is empowered to meet its goals)
Grant and contract; info reporting; prosecutorial; standard-setting; licensing
Procedures (principle legal restraint on agency action are claims of procedural irregularities)
APA: 2 ways of decision-making: Rulemaking & adjudication (includes licensing)
Informal processes (not APA regulated): investigations; advice-giving; negotiation; reporting; elections, etc.
Internal Organization (product of judgments shaped by functional requirements of agency’s statutory mission, powers, procedures)
Overall Structure and Location w/in Government (affects way agency operates; difference in thinking/objectives)
Location of agency w/in larger govt scheme often reflects Congress’s desire to limit the President’s influence over the development and implementation of administrative policy
Idea of “independent” agencies (insulated from Presidential influence)
  Section D: Critique and Reform of Administrative Government
Agency creation a reflection of 2 legislative judgments: (1) a problem requires gov’t response AND (2) the court system is inadequate to handle that problem
Agencies better than courts: agencies can be proactive, they are experts, they can employ a variety of tools and decision-making processes unavailable to the courts
 
Chapter 2: The Legislative Connection
The agent (admin agency) has only those powers provided by its principle (legislature).  Legislative specification of agency jx, purposes, powers, provides democratic legitimation for exercise of administrative authority and an instrumental conception of administration as essentially the task of implementing policy choices made in the political process.
  Section A: Statutory Vagueness and its Antidotes
    The “Non-delegation” Doctrine
Congress not allowed to delegate its constitutional grant of power to the Executive Branch (agencies), yet it routinely does (President is supposed to be law enforcer, not law-maker). 
Often organic statutes are so broad/vague, that agency has no choice but to make policy decisions. 
Some discretion MUST be okay but instructions too broad will be unconstitutional
On the other hand, some statutes are very specific and detailed
In practice: If Congress shall lay down by legislative act an intelligible principle (guidelines; guideposts; framework) to which the person or body authorized to act is directed to conform, then such legislative action is not a forbidden delegation of legislative power. 
Since 1935, SC has not invalidated any statute on basis of excessive delegation
Yakus v. US: Only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose.
Bottom line: as long as contours of policy are given, agency can fill in the details
Phrases upheld: “just and reasonable”; “meaningful standards”; “prevent inflation”; “necessary to avoid imminent hazard”
We need these guideposts for purposes of democratic accountability
Why does Congress delegate at all?: wants to be able to take credit for solving the problem but doesn’t want to take heat for making tough policy choices
Amalgamated Meat Cutters v. Connally: Economic Stabilization Act (ESA) gives Pres. power to “issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages, and salaries at levels not less than those prevailing on May 25, 1970.  Such orders and regulations may provide for the making of adjustments as may be necessary to prevent gross inequities.”  Pres. establishes a 90 day wage freeze pursuant to ESA, which interferes w/the wage increase P- union had earlier negotiated with meat packing companies.
P’s CLAIM: ESA grant to Pres. is too broad and does not give him any instructions: no statement of purpose, no requirement that his actions be equitable, no guidelines as to when he is to use his authority or if he even must, etc.
HELD: Delegation is constitutional.  Following rule established in Yakus, there ARE standards/limitations on the Pres’s power: time limit in which he can act; cannot lower wages beyond a certain level; cannot single out a particular industry; power to “stabilize” and actions one can take in order to achieve stabilization are explicit in legislative history (and a “freeze” like Pres ordered here is common tool used before); Pres must avoid “gross inequities” – thus, this is not a blank check; once Pres sets his own standards, his subsequent action is limited by them; judicial review of Pres’s conduct.
There is historical experience w/anti-inflation legislation guiding Pres choices; it’s not as though this is delegation to devise novel rules of law in a new field w/no settled custom. 
Although there may not be explicit limitations in the statute, there are implicit limits
Q: Are there sufficient limitations to prevent agency arbitrariness?
Sun Ray Drive-In Dairy v. OR Liquor Control Commission: D is empowered to refuse license if it has reasonable ground to believe that there are “sufficient licensed premises in the locality” or that the license is “not demanded by the public interest.” D denies P’s license and different employees give different reasons for doing so.
Issue: Did D act arbitrarily in denying P’s application? WE DON’T KNOW
W/o written standards, D cannot be subject to public scrutiny or judicial review (we have no idea if P was discriminated against or if there were other, legit reasons, for denying the application b/c we have nothing to measure it against.)
The public cannot meaningfully apply for a license if it has no idea what D is looking for when issuing one.  Furthermore, w/o written standards, the legislature cannot know if D is performing consistently w/the power delegated to it.
Dichotomy btw rules & standards (55 mph v. you must travel at a reasonable rate of speed).
Advantage of rules: predictable, easy application
Advantage of standards: don’t create absurd result by literal interpretation
Whitman v. American Trucking: The term “requisite” is an adequate limit to the EPA’s discretionary authority when establishing NAAQs under CAA.  “Requisite” (to protect the public health w/an adequate margin of safety) means “sufficient, but not more than necessary,” AND EPA only has this power over a discrete set of pollutants (criteria – there are only 6)
Bottom line: Statutes can grant agencies a lot of discretionary authority w/o imposing many effective limitations on that authority
    The Legislative Veto
INS v. Chadha: Is sec. 244 of INA constitutional when it allows only one house of Congress (HOR) to veto the AG’s decision that an alien will face extreme hardship if removed? NO
RULE: Presentment (to President for approval or veto) and bicameralism (passage through both houses needed) will apply when action taken is legislative in purpose and effect.  An action is “legislative” when it changes someone’s legal rights.
It is okay to delegate authority to administrators b/c they are agents who are bound to do whatever Congress tells them.  Congress, on the other hand, is not constrained it could overturn the AG decision if it felt like it – if a congressional intern reviewing the application said so.  That decision would be constrained by no one and nothing.  Agencies are constrained by their statutes; Congress is not.
Legislative veto encroaches on power of judiciary by giving Congress the final word
Weinberg: after elimination of legislative veto, Congress has LESS control over agency decisions.
Other mechanisms of legislative control:
Sunset provisions
More specific statutes
Appropriations riders: no part of an agency’s funds may be expended to carry out a specific program
Congressional Review Act: (CRA, 1996): all agencies must submit rules for analysis by GAO and review by Congress before it is scheduled to take effect.  Submission must include CBA, rules can’t take effect for 60 days, etc.
Only been used to revoke a rule once.  Although both houses might pass a CRA resolution, President will usually veto it b/c agencies mirror presidential policy objectives
  Section B: Statutory Precision & Its Consequences
    Irrebuttable Presumptions
USDA v. Murry: D disqualified for food stamps per 5(b) of FSA which makes conclusive presumption that an entire household where 1 person is another’s (who is not a member of the household) “tax dependent” is not needy and has access to nutritional adequacy.  D lives w/2 sons and ten grandchildren on an income of $57/month.
Issue: Does FSA’s presumption that the tax dependent’s household is not needy deprive that household of DP? YES – This is an impermissible irrebuttable presumption. 
Under this scheme, the agency has zero discretion.  D does not get food stamps even if the agency thinks its needed
HELD: efficient procedure is a legit state objective, however, there are higher values at stake here than speed/efficiency.  Where private interests affected are very important and the gov’t interest can be promoted w/o much difficulty, the DP clause requires the gov’t to act on an individualized basis w/general propositions serving only as rebuttable presumptions.  (Anti-Sun Ray)
Weinberg: This is not the law today.  The gov’t can apply blanket rules (or individualized rules if they wish), even if it results in individual injustices.  Courts have upheld rules as long as they are remotely rational (survive rational basis/means test). 
Mashaw: if validity of a legal rule is to be tested by asking whether the principle that underlies the rule is furthered in every instance of its application, then rules are no longer possible.
Statutory precision has two consequences:
Absurd results (USDA v. Murry)
Inability for agency to respond to new knowledge or changed political circumstances
On the other hand, too much discretion = potential for arbitrary rules; influence from lobbyists; can make the analytical job of the agency SO large as to be unmanageable
    The Virtues and Vices of Explicit Statutory Instructions
The Decisive Delaney Clause: “No additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal…”
What is induce?  What is additive? An additive can be banned even it if causes cancer in animals w/no proof of cancer in humans?
@ time clause was written, only 4 food additives had been found to cause cancer.  Now, science has identified a huge volume.  Is their exclusion what the authors had in mind?
Public Citizen v. Young: Red 19 and Orange 17 are color additives in which lifetime risk of cancer is 1 in 19 billion (orange) and 1 in 9 million (red).  FDA says risks are so trivial as to be effectively no risk and allows them to be marketed.
Issue: Is there an implicit de minimis exception to the Delaney Clause?  Does the FDA have the power to determine a product is safe when it concludes that the risk of cancer presented is de minimis? NO
Court: We agree this is stupid, but Congress has to fix it, not us. 
When legislative rigidity causes absurd outcomes, who should correct it?
Should agency assume a de minimis exception (try to moderate absurd consequences)?  Or wait for Congress?
  Section C: Instruments of Legislative Control
    Legislative Oversight, Casework and Influence
Objective of oversight: assure fidelity to congressional intent; preserve political responsiveness; assess strengths/weaknesses of regulatory programs
Congressional oversight has at most an indirect, subtle effect on agency action
Is that what we want? Agencies are supposed to be independent and their decisions are supposed to be based on investigation and expert findings. How much congressional intrusion is allowed (or does it take) before the integrity of the agency decision is compromised?
3 sisters bridge case: Sec. of Transp. approves bridge construction that HOR members really lobbied for.  Judge reverses Sec. decision and remands b/c Sec may have taken into account “considerations that Congress could not have intended to make relevant” as a result of the political pressure he received from particular HOR members. 
SoT was only supposed to consider traffic studies and engineering – not a threat that the highway budget would be eliminated if the bridge was not approved.
2 problems when talking about Congressional influence on agencies:
What are the interactions btw Congress and agency?
Episodic/ad hoc; when complaint is received (no formal/proactive oversight)
To what extent are actors on Hill who exert oversight representative of “Congress”?
 
Chapter 3: Executive Supervision of Administrative Action
Techniques available to Pres to shape administrative policy: appoint and remove agency officials; issue EOs; organize agencies; impose requirements for interagency coordination; access to med

impede the Pres’s ability to perform his constitutional duty.
B/c IC can still be terminated for cause (including misconduct) the Pres can still make sure the IC’s actions are competent.  So the Pres has not been completely stripped of his power to ensure faithful execution of the laws. 
“For cause” removal restrictions ensure some accountability and ensure that abuses are not made.
Does the Pres have “enough” control so that he can still do his job as Pres?
Today, the SC has adopted Scalia’s view (author of Morrison dissent) on what differentiates inferior officers from principal officers: the test is whether someone can tell you what to do and you have to follow orders – that makes you inferior.  If no one gives you orders and no one can overturn your decisions, then you are a principal officer
Free Enterprise Fund v. PCAOB: D is a 5 person board appointed by SEC (D is an officer of US and held to be inferior officer, thus his appt by SEC (dept head) is constitutional).  SEC cannot remove members of D w/o good cause.  Likewise, the SEC is only removable by Pres for cause.
HELD: This is not allowed; the D must be removable at will.  B/c of this double layer (SEC can only remove D for cause and Pres can only remove SEC for cause), D is unaccountable to Pres but still performs functions in his name.  This interferes w/Pres’s ability to execute the laws. 
Weinberg: Although this is formally correct, in a practical sense it won’t weaken Pres authority any more than 1 layer of for cause protection would: This will only EVER be an issue if Pres doesn’t like Board and SEC decides they don’t care what Pres thinks and keeps Board. If Board can be removed at will and Pres hates Board but SEC wants to keep it – Pres still has no recourse à He can’t remove SEC for disagreeing w/him as SEC can only be removed for cause (UNLESS failure to fire Board can be characterized as a neglect of duty on part of SEC but that would probably never happen).
In practice, Pres has a ton of influence over what SEC does (even though SEC is supposed to be “independent) and it has nothing to do with removal power: he can appoint SEC members (they are principal officers) and moral suasion
Independent agencies: politically insulated à party limitations, staggered terms, for cause removal provisions, sometimes written into organic statute (FTC, SEC, FCC are some)
  Section B: Executive Authority to Direct Agency Policy
    The President’s Power of Policy Initiation
The Youngstown Framework à Apply this to question of: how much power does Pres have to tell administrators what to do?  Presidential powers fall into 3 categories:
(1) When he acts pursuant to congressional authorization – max authority
(2) Acts in absence of either a grant of power or a denial of power from Congress
Here, Pres power depends on circumstances in which he’s acting
(3) When he acts in a way Congress has denied he is able to – lowest authority
Unless there is something in the “inherent” presidential power that would allow him to go on regardless of what Congress says
Implementation of Statutory Authority
3 USC 301: permits Pres to delegate to exec officials subject to Senate confirmation any function Congress has vested in Pres by statute, as well as any function that such officials are authorized by statute to perform subject to pres approval, ratification, or other action.
BUT, admin official must follow rules Congress set forth in organic statute
If Congress, w/in its constitutional powers, directs Pres to implement a particular action, Pres has no lawful right to suspend the law
If Congress, w/in its constitutional powers, prohibits Pres from implementing a particular action, Pres has no lawful right to authorize action
    Instruments of Presidential Command: Executive Orders
How the Pres (formally) issues internal commands to Exec branch
  Section C: Presidential Oversight of Regulatory Policy
Pres oversees regulatory process via OMB and (w/in OMB) OIRA, located in exec office of WH.  OMB helps Pres budget and manage exec branch.
Reagan’s EO 12291 and 12498: CBA required of proposed new regulations.  MEMO à
Authority of Pres to issue EO comes from constitutional power to faithfully execute the laws – Pres must secure unitary and uniform execution of laws and avoid situations where inconsistency would occur in agency interpretation of open-ended statutes. 
BUT pres may not require or permit agencies to transgress boundaries set by Congress
Thus, requiring CBA is okay when “permitted by law.” Agencies prohibited from engaging in CBA cannot be required by Pres to do one.  But, when there’s no prohibition, he can require it even if agency would not otherwise do it on its own
Agency still has ultimate decision despite having to conduct the CBA per EO
CBA required of exec agencies but NOT ind. agencies.  Requiring CBA of ind. agencies might be Youngstown category 3 b/c when Congress delegates authority to them instead of an exec agency, it does so b/c it wants a certain amt of political insulation
OMB Review and Administrative Policy
Clinton EO 12866: supersedes 12291/12498 but keeps things  intact w/a few variations: OMB has less ability to reject rules at last minute; cannot indefinitely delay a rule; communication btw OMB and agency must be publicly viewable; exec AND ind. agencies must submit a regulatory plan w/their plans for the year; requires for exec agencies a centralized review of regulations to ensure they are consistent w/pres priorities
Does this review just cause delays or does it have any benefit?
Toward Presidential Control of Rulemaking – Basic principles
Agencies may only regulate consistent w/their statutory mandates
President cannot order agency to violate its mandate
Unless Pres orders agency to make a decision based on forbidden grounds, he is w/in his discretion to influence a choice among plausibly lawful alternatives