Select Page

Administrative Law
Wayne State University Law School
Pucillo, Philip A.

Administrative Law
Administrative Law: Regulates the exercise of authority by executive officials, including officials of agencies that are formally independent of the executive branch.
       I.            Intro
A.    Agencies: Their Origins, Forms, and Functions
1.     The Sources of Administrative Law:
                                                                                i.            The Constitution
§  Limits the type of power that agencies may exercise and also places limits on the methods that agencies may employ to exercise that power.
                                                                              ii.            The Administrative Procedures Act
§  A federal statute that prescribes the procedures agencies must follow and establishes the framework for judicial review of agency action.
                                                                            iii.            Particular Agency Enabling Acts and Other Statutes
§  The Organic statute establishes each agency and prescribes its mission. The Organic Statute may even modify the APA for that particular agency. Additionally, other statutes may place obligations on agencies.
                                                                             iv.            Administrative Common Law
§  Before APA enacted, common law regulating the exercise of government power had developed. Courts sometimes still refer to the common law doctrines to help explain the meaning or application of the APA.
2.     What is an Agency?
§  Most of the action that directly affects rights of regulated parties is the legal aspect of an agency.
§  The majority of the work an agency does not have anything to do with the law. Mostly agencies are focused on studies or on regulations. Ie scientific study.
§  Courts are EXTREMELY reluctant to vacate the action of an agency.
o    Sometimes a regulation might violate a statute….this is an example of something the court might vacate.
§  Congress (if it wants to) can directly regulate individuals
o    So Congress will create an agency to regulate individuals
o    Congress does not want to concern itself will all these regulations
o    Every federal Agency has what is called an organic statute that creates it.
o    Congress just empowers the agency and then lets it go.
o    Congress can still control an agency that has too much power
-Can get rid of officials, change statutes, cut funding etc.
-Congress can also bring agency administrators in for a committee hearing—-these are all non-legal ways that congress can regulate agencies in a non-legal way.
§  Examples of Federal Agencies:
o    EPA, FDA, Dept. of Agriculture, NHTSA, OSHA, IRS, FHA, Dept. of Transportation, FCC, Dep. Of Education……..etc.
3.     Where do Agencies Come From?
a.                   The Origins of the Administrative State:
—The Administrative State, as we know it, began in 1887 with the creation of the Interstate Commerce Commission, although the antecedents to the administrative state go back to the beginning of the republic.
§  Executive Agency: Agencies whose heads are subject to unlimited presidential removal authority.
§  Independent Agency: Agencies headed by persons who the President cannot remove at will. àindependent does not mean that these agencies are functionally independent of other institutions. FCC v. Fox Television Stations.
§  Multi-member: Usually how independent agencies are headed—aim is more scientific—governmental management.
§  Single-headed: Usually how executive agencies are headed. Designed to promote accountability.
§  Organic Act: Behind every agency lies a legislative act, called an organic act, which creates, empowers, defines, and limits that agency.
4.     The Structure of Federal Agencies.
a.       Structure of the Administrative State
o    While most federal administrative agencies are within a department of the executive branch, Congress has designated some agencies as “independent” —-not within any department of the federal government and not under the supervision of the President or any cabinet officer.
o    Ex: The FCC (Federal Communications Commission)
b.       The Roles of Administrative Agencies
o    Administrative Agencies administer government programs established by Congress.
§  US District Court->US Court of AppealsàUS Supreme Court
o    This is the path a challenge to agency regulations takes
o    District of Columbia circuit has both jurisdiction locally AND they also have federal jurisdiction. This is because most federal agencies are located in Washington. DC circuit is the most important circuit for our purposes. It is the most prestigious circuit. Most Supreme Court Justices are from this circuit.
o    Administrative action is usually challenged beginning at the Appeals Court level…..every now and then the challenge is brought to the district court
o    Every now and then an interest group will bring a challenge…i.e. Green  Peace….typically only a regulated party brings an action….but interest groups whether they are regulated by said agency or not. 
4. Agency Functions: The Distinction Between Rulemaking and Adjudication
a.       Distribution of Benefits
o    Administrative agencies distribute government benefits such as welfare, disability benefits, old age benefits, medical care for poor and old people, and loan guarantees for home buyers and students.
o    Agencies adjudicate disputes that arise in these areas.
b.      Granting of Licenses and Permits
o    Agencies rule on requests for licenses and permits in a wide variety of areas, including the construction and operation of nuclear power plants, logging on federally owned forest land, operation of stockyards, ownership and operation of television and radio stations, and the operation of commercial airlines. 
c.       Policymaking
o    Federal Agencies make important policy decisions in a wide variety of areas. Congress often instructs the agency in very broad terms and leaves important matters to agency discretion, including whether to require automobiles to be equipped with seatbelts, airbags or both; how much of certain pollutants may be released into the air or water, whether employees will be represented by a labor union, whether an interstate highway should be built through parkland, and the requirements for obtaining various permits and licenses.  
d.      Nonbinding Agency Action
·         Agencies spend most of their time analyzing, investigating, synthesizing, deliberating, planning and studying. —None of these acts directly affect the legal rights of parties involves though they can be a prelude and lead to legal action.
·         FTC Funeral home example
·         Agency activity, even when it is not immediately legally binding, always takes place in the shadow of the law.
e.      Policy Making Methods
1)      Rulemaking and Adjudication
·         Rulemaking:
-More general application

sent its version of the facts. The particularized facts are referred to as adjudicative facts because they are the type of facts that are found through an adjudactory process that focuses on the particular situation of a single or small number of parties
Ø  Due process does not require hearings when agencies make across the board decisions based on general factual conditions and not the particular situation of any particular regulated party. This type of fact is referred to as a legislative fact because it is the type of fact normally found legislatively.—more rulemaking—ie more general
v  Bi-Metallic Investment Co. v. State Board of Equalization of Colorado
o    Facts: Bi-Metallic (P) owned real estate in Denver, and sought to enjoin the state board of equalization (D) from increasing the valuation of all taxable property in the city by 40%. Bi-Metallic argued that since it was given no opportunity to be heard, its constitutional right to due process had been violated. The Supreme Court of Colorado upheld the revaluation. Bi-metallic appeals.
o    Issue: Do all property owners in a municipality have a right to be heard before their property can be revalued?
o    Held: No; Judgment Affirmed
***When a large number of individuals are affected by agency action, it is impractical that they each be given a hearing. The machinery of government would grind to a halt if all aggrieved parties were given a formal hearing.
***The action taken here was analogous to that regularly performed by the legislature. Even though the legislature c an significantly affect the property of individuals “sometimes to the point of ruin” there is no constitutional requirement that a hearing be held before such action is taken.
***Agency imposed a tax on an across-the-board basis, Without the particulars to any taxpayer, due process does not require individualized hearings.
***You cant just be concerned with the APA…you also have to take into account the Due Process Clause and the Organic Statute.
v  5 U.S.C. Sec. 551 (4)-(9)
o    See APA starting on 987
v  Executive Order 12866 Sec. 3(D)
o    “Regulation” or “rule” means an agency statement of general applicability and future effect, which the agency intends to have  the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.
v  Lincoln v. Vigil
o    Determining whether an agency’s statement is what the APA calls a “rule” can be a difficult exercise.
v  Yesler Terrace Community Council v. Cisneros
o    This case the court is distinguishing between “rulemaking” and “adjudication”
Facts: Public housing tenants ordinarily may be evicted after a grievance hearing before the public housing admin. In cases of