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Administrative Law
Wayne State University Law School
Ortman, William

Admin Law FALL 2016 PROF. ORTMAN
Admin Law, generally: technically complex opinions – similar to Civ Pro.
Cases deal with nuanced regulations
Intro into different areas of regulation: EPA, FDCA.
Course is about process.
MAJOR KEY: Doctrine isn’t coherent (Lord help you for talking this class).
Admin law begins with the New Deal: can ask big questions
Gov’t authority other than 3 branches named in the US Constitution to make laws.
Defines procedures and standards.
Types of agencies:
Executive agency:
President can fire head of agency.
Cabinet: agency can report to cabinet agency (ie OSHA)
One person in charge: Test – check for governing board.
Constitutional constraints.
Independent agency: Head of agency protected from President.
Has governing board
Tenured heads/ protected from President.
Measure of stability: insulated from sudden changes
Dodd-Frank; Federal Reserve.
Sources of admin law:
Statute (never common law): Also known as organic statute/ enabling act.
The Constitution: provides basic framework.
Agency itself: Rules/orders
The APA (Administrative Procedure Act): creates administrative actions
The Courts: Could be considered “admin common law”
Decisions by the courts
DC Circ – almost always venue to sue in DC
Why we have admin agencies/ what would replace them?
Left to the states’ courts and legislatures
Federal common law or judges
Cons: agencies have more expertise than judges.
Pros: agencies have self-interest
Pro/con: courts are considered impartial.
Pro: “democratic”
Con: slow process
Con: no expertise
Agency action: Rules and Orders
Defines regulations within authorizing statute (same as legislation)
Orders (diverse): Adjudication
Formal adjudication/ formal procedures
Ex: agents interaction with public (ie price setting)
Agency decision making
Who works for agencies?
Political appointees
Career employees
Lawyers – mix of political appointees & career employees
Key question: What extent does agency empower lawyers vs. experts?
Course themes
Administrative state vs. “School house rock”
Admin st: lawmakers, enforcement and jugdes.
Agency relationships with Congress, the President and cts
Who are agencies agents of? Pres? Congress? Or pubic?
Sections of the course
Delegation of power to agencies/ constitutional limits
Judicial review
Non-Delegation: 581-602 (to end of note 2); 610-613
Issue: Under what conditions are Congressional delegations of power to administrative agencies constitutional?
Constitutional Provisions:
Article I: Powers of Congress
Section 1: “All legislative Powers granted shall be vested in a Congress…” [Vesting Clause] Section 8.18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…” (pg. 1307).
Article II: Powers of the Executive Branch
Section 1.1: “The executive Power shall be vested in a President…” [Vesting Clause] Section 3: “…he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” (pg. 1310).
The 3 questions
What power can Congress delegate?
What is an intelligible principle?
Can an agency/court “save” a bad statute?
Formalism v. Functionalism
Formalism: Certain powers inherently belong to the executive or legislative.
Functionalism: Set aside rigid rules to produce good government and political accountability.
Are there limits to the power Congress can give an Agency? Yes. This is non-delegation. Rarely applied, there must be an “intelligible principle” as per Shechter, which is a very low standard. We care because: Accountability (but Prez also elected), Lockean argument, fear that decisions will be arbitrary, Schoenbrod wants Congress to make the tough decisions and not be able to duck responsibility for its choices. Bressman wants the self-constraint. 
Note that Scalia and Dick Stewart believe that the real problem is that, not only are agency decisions often actually technical, with plenty of accountability, but also that the court couldn’t really enforce a stricter rule. Plus, Congress knows what it’s doing (see coke oven rules).
Whitman v. American Trucking Associations, Inc. Scalia (formalist): Is the delegation of authority in the CAA constitutional?  Per Article I, all legislative power is vested in the Congress.  Is all delegation of authority unconstitutional?  No, the necessary and proper clause gives Congress some leeway to delegate.  Held:  The provision at issue here does not violate the non-delegation doctrine; however, this case is on the outer bounds.  Only in the 1930’s were statutes actually overturned under this doctrine, but these were cases where there was no intelligible principle.  Congress must articulate an intelligible principle to guide the agency. 
Stevens Concurrence (functionalist).Would still apply the intelligible principle, but would call it a permissible delegation of legislative authority whereas the majority says that as long as there is an intelligible principle there is not a delegation of legislative authority.
In Benzene Cases Rehnquist said Congress has power to make laws, “not to make legislators.”
Instance of non-delegation having effect on statutory interpretation.

ation comes back in here, Scalia position from Mistretta would suggest this argument means no reins)
What about Indirect Power? Here’s where Congress shines. The biggest power they have here is Appropriations. They can use riders on these bills, barring certain types of spending. Can be extreme or targeted. Problematic because there’s too much log rolling, avoids rel debates over the law, immune to veto, and an even more invisible process than usual. Also doesn’t go to the subject matter committee. Gives a second bite at the apple.
Bowsher v. Synar Congress creates Comptroller General to help with balancing the budget. CG can be removed by passage of joint resolution in both houses and must be signed by the Pres. Holding: CG is a legislative self-delegation and is therefore unconst. Ultimately the problem is that the CG is under the control of Congress but exercising executive power (executing and interpreting an act of Congress). This confluence of powers – a legislative agency exercising executive power – is an unconstitutional violation of the separation of powers.
Presidential Control
Constitutional Provision: Appointments
Article II § 2: Appointments Clause
The President “…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…all other Officers of the United States, whose Appointments are not herein otherwise provided for…”
“…but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
: The appointments clause requires the President to appoint with “advice and consent” of the Senate, except for those “inferior officers” that Congress specifies.
Principle vs. Inferior Officers: Why distinguished?
Practicality: There are far too many inferior officers of administrative agencies for Congress to provide advice and consent for every one. This would be cumbersome and inefficient; it would also be unnecessary given that all inferior officers are accountable to principle officers, for whom advice and consent is required.
Executive Discretion: The President must have some control over the staffing of administrative agencies.