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Administrative Law
West Virginia University School of Law
McGinley, Patrick C.



Where does Administrative Law Derive From

(1) Constitution (2) APA (3) enabling statute – this always prevails even if no in congruence with the APA, in other words make sure you always do what the APA says even if it offers only one sort of review that typically wouldn’t be offered (4) applicable federal statutes (5) common law of administrative review that existed before the APA.

How are Admin Agencies Created

Admin agencies must be created by statute (enabling statute/organic statute)
The only reference in the constitution to the ability of Congress to create these agencies can be found in U.S. Const. Art 1 Sec. 8 Cl. 18 “congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution for foregoing powers, and all other powers vested by this constitution in the government of the united states or in any department or officer thereof.”

How are Administrative Agencies Organized

head of agency, advisers, separated into several offices.
Some entities are headed by a single administrator who serves at the presidents pleasure.

How do Agencies do their Work

make regulations and decide disputes (Social Security Administration), license activities.
Administrative law judges can also decide cases. The decisions can be appealed to Art III courts but typically courts give great deference to the agencies decisions.

How do Administrative Agencies Make Regulations

The agencies come up with the rules and give notice that the rule is in the offing to allow for those outside the agency to comment on the proposed rule. Staff then review the rulemaking record before making any rule final. Assuming that the proper procedures have been followed and that the rule is within the agency’s statutory authority, the promulgated rule will have full legal force. This is known are informal rulemaking. APA governs this also.

Proposed rules must be published in the federal registry so that they may be subject to judicial review.

Formal Rulemaking –Making rules using a trial like procedure.
Hybrid Rulemaking- not yet formal but not informal because the statute will call for additional procedures than what the APA calls for.
NOTES: always look to the organic statute to see if formal or informal rulemaking. If APA applies then follow APA but keep in mind that agency may have its own procedures over and above that of the APA. Similarly if any of the procedures violate the const. the const. always trumps. Ex. due process.


Constitutional Provisions:

“All legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of rep” Art 1 Sec 1
“the house shall have the sole power of impeachment. the senate shall have the sole power to try all impeachments” Art 1 Sec 2 cl. 5, ec 3 cl. 6
“the executive power shall be vested in a president of the united states” Art 11 Sec. 1
“he shall take care that the laws be faithfully executed” Art II Sec 1
“he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices” Art II Sec 1.
“the president shall … nominate and by and with the advice and consent of the senate shall appoint ambassadors, other public minsters, and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for and which shall be established y law; 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. Art II Sec 2 cl. 2
“the judicial power of the united states shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish. The judges both of the supreme court, shall hold their offices during good behavior and shall at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
incompatibility clause – prevents Congress members from serving in executive agencies.

Historical Overview:

The historical departments were: (1) department of war, (2) treasury, and (3) post office.
as the U.S. grew and business became macro rather than micro there was need for regulation. (monopolies created a problem especially with railroads- this controlled the prices and the citizens
the first federal agency was the interstate commerce commission which regulated railroads.
separation of powers (prevent tyranny), separation of functions (in agencies the same body does all the functions, checks and balances (prevent tyranny but no need for radical separation.
some argue that the const. is still being followed because the agencies are under the control of the correct branches.
the new deal is the 2nd stage of the administrative state. Everything else before that was the 1st stage.
the next wave was world war II
following the last waive was the poverty wave (social welfare); then came the safety waive with regulation of environment and reg.’s such as OSHA.

Formalism v. Functionalism:

– focus on the purpose underlying the const. language and structure to make them applicable to modern institutions. Ask the court to consider whether the action of one branch interferes with one of the core functions of another. Need a workable government.
– seek answers in the text of the constitution.

Youngstown Sheet & Tube Co. v. Sawyer (Black: Formalist 1952)

Holding: The president did not act within his const. power when he issued executive order 10340 directing the sec. of commerce to take possession of and operate the Nations steel mills. The president’s power to issue an order must stem from either an act of Congress or from the const. itself. No act of congress gave the right to seize property and the order cannot be sustained as an exercise of the president’s military power as commander in chief. The president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. President lacked inherent power.

Jackson’s famous concurrence (more functionalist approach) –

(1) When the president acts pursuant to an express or implied authorization of congress

his authority is at its maximum

(2) When the president acts in absence of either a congressional grant or denial of

authority he can only rely upon his own independent power (twilight zone – when congress leaves the field open)

(3) When the president takes measures incompatible with the expressed or implied will of

Congress his power is at its lowest for then he can only act on his const. powers.

Here the president is not acting under 1or 2 and 3 is found nowhere in the const.

**aggrandizement – this is an example of the president trying to bring in more power by interfering with another branch. .

Delegation of Power to Agencies and Separation of Powers

J.W. Hampton – case that originally created the intelligible principle standard.

Whitman v. American Trucking Assns Inc. (Supreme Court)

Holding: The statute does not delegate legislative power to the EPA and this Court has never

held that statutes must provide a “determinative criterion” saying how much regulated harm is too much. There is an intelligible principle the air statute and the EPA was exercising executive power.

NOTES: Getting an agency involved may be better than Congress because agencies have the knowledge. Courts always find an intelligible principle; therefore, not violation of non-delegation doctrine.

But see:

Industrial Union Department v. American Petroleum Institute – Benzene case in which the Supreme Court held that OSHA’s occupational and health standards to situations in which a substantial health or safety risk has rendered a workplace “unsafe” was missing any intelligible principle.

Immigration and Naturalization Service v. Chada ( Supreme Court) Form Sep. of Power

Const. Rule : Every bill which shall have passed the house of rep and the senate shall before it become a law be presented to the president of the united states … every order resolution or vote to which the concurrence of the senate and house of reps may be necessary shall be presented to the president of the united states and before the same shall take effect shall be approved by him or being disapproved by him shall be passed by 2/3 of the senate and house of reps. according to the rul

heard by public bodies making decisions of policy. There would be an impossibility of judicial definition and enforcement.

Dectur Liquors v. District of Columbia – zoning which affected licenses of 73 stores did not violate due process.

Administrative Procedure Act

Formal v. Informal Agency Proceedings:

Rule Making



All publication – § 552(a)(1); petitions to alter rules – § 553(e)

Substantive only; notice, participation, statement of “basis and purpose”, 30-day delay between publication and taking effect – §553

NOT REGULATED BY THE APA; but look at § 555.


Notice – § 553(b); hearing – § 556; intermediate and final decision – § 557; 30 –day delay between publication and taking effect – § 553(d); publication – § 552(a)(1); petitions to alter rules – § 553(e)

Notice, informal settlement; separation of functions – § 554; hearing § 556; intermediate and final decision – § 557; declaratory orders – § 554(e).

** notice is published in State Register or Federal Register

NOTES: Ex. of how formal rulemaking may begin: Agency will seek a cease and desist order against the X Co. to stop a particular advertising practice rather than promulgating a general rule about prohibited advertising practices that would apply to a class. Again, the agency confronts the choice of whether to proceed formally or informally.

United States v. Florida East Coal Railway Co. – (Supreme Court) the simple reference to

“hearing” in the Act is not enough to activate Sec 553(c)’s reference to cases in which “rules are required by statute to be made on the record after opportunity for an agency hearing”

If agency statute doesn’t say get hearing then it is up to the agency.
Only have formal rulemaking if the organic statute calls for it.


Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council Inc. (Sup Ct.)

Holding: Court may not require procedures in addition to those specified in either the APA or an enabling act because uncertainty over the correct level of procedure would lead agencies to overproceduralize, losing the benefits of streamlined rulemaking. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to implement them.

Natural Resources Defense Council v. Environmental Protection Agency (9th Cir. 2002)

Facts: EPA issued comment for draft general permit that would have modified all the log transfer facilities in Alaska. The draft specifically referred to a one-acre zone of deposit. The zone was changed and the zone was increased and the public was not given the chance to comment.

Rule: Although a final rule need not be identical to the draft permit, a final rule which departs from a proposed rule must be a logical outgrowth of the proposed rule to comply with USC 553(b) – (c) notice and comment.

Holding: We conclude that the EPA’s notice and comment procedure was inadequate because it did not afford interested parties the opportunity to comment on whether Alaska’s proposed change in the zone. Public could not have reasonably anticipated the shift from the draft to the final permit.