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

I.                   Introduction to Administrative Law
A.    The Basics
1.      The scope of the Administrative State is vast; it touches every part of our lives.
2.      Pervasive that is the word to describe Administrative Law.
3.      Constitutional law and administrative law are linked.
4.      One of the basic themes of our class is the development of the administrative state because, clearly, the current administrative state was no envisioned by the Framers.
5.      Checks and balances were designed in the 3 part government system to prevent a monopoly of power.
·         So, where does the administrative state fall within this system of checks and balances?
·         Not even the President can fire the heads of administrative agencies that are designated “independent” (e.g. the Federal Communications Commission or FCC).
6.      The President can issue an Executive Order to check the administrative state.
7.      The courts can act on a concern that the administrative state’s powers are two vast, if the concern is properly brought to court as a case or controversy, and then the judge can impose the standards of judicial review.
8.      Finally, Congress can giveth and taketh away.
9.      The political process can indirectly affect the administrative state—the people elect those who pick the bureaucracy.
10. One practical piece of advice to a client being hassled by the administrative state would be to expose the excesses to the media.
B.     Development of the Administrative State
1.      The Framers did not mention an administrative state, there’s only a slight implication to it in the definition of the Presidency in Article II.
2.      Interstate Commerce Commission (ICC) was the first milestone in the formation of the Administrative State.
3.      Components to the Explosion of Government:
·         ICC and Railroads
·         The Industrial Revolution
·         The Great Depression
·         The New Deal
4.      Big business/railroads wanted to be free from state regulations and customers wanted to be free from the railroads and their monopolies.
5.      Railroads took the country by storm and became a major component of the Industrial Revolution.
6.      The railroads merged and got greedy, engaging in price fixing.
7.      The ICC was created to affix fair prices for the shipment of goods by the railroads.
8.      Basically, complexity—the creation of the new and the complicated—is the reason why the Administrative State flourished.
9.      Some of these new complexities included radio, television, and air travel.
10. The Industrial revolution brought the complexity of manufacturing and the United States saw a mass migration of agrarian workers to the cities.
11. Where there’s smoke, there are jobs.
·         Unsafe conditions
·         Pollution
·         New developments of the Industrial Revolution
12. W.Va. Hawk’s Nest Incident
·         This catastrophe provided the first instance for federal intervention into worker safety.
·         It involved a hydroelectric power scheme, within the state of West Virginia, where miners died of disease.
13. Unions also emerged in the Industrial Revolution, and with them came the Wagner Act with its rules and regulations.
14. The statutory mandate for the bureaucracy created in the famous 100 Days of the New Deal was pretty damn vague because it was such a rush job.
15. The growing population brought out new concerns about the elderly.
16. The professor suggests that the Administrative State is still in its early stages, even at 2008 (and now the Internet is opening up as a whole new forum).
17. With this new change, comes the Unitarian executive theory which states that the President cannot be interfered with by the other branches of government.
C.     Introductory Problem: Field Sanitation and OSHA
1.      Where do you go to find legal means for fixing poor sanitation in the work place? Why, to OSHA, of course.
2.      Congress responded to public demand and passed the Occupational Safety and Health Act (OSHA) of 1970.
3.      Its declared purpose was to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b).
4.      The statutory language of congressional schemes like OSHA includes terms like “enabling legislation” or “organic legislation.”
5.      Employers were required to keep their workplaces “free from recognized hazards…likely to cause death or serious physical harm” and

ent case worker is an indirect avenue to your Congressman when the administrative does you harm.
11. Why doesn’t the Court just always step in and reign in the administrative state?
·         The judiciary is supposedly the “weakest branch” of government without the means of enforcing its will.
·         Plus, the Supreme Court itself is unelected, so it is better in many a justice’s view to defer to the judgment of elected officials and those who were chosen by them to administer to the people’s needs.
·         It is nigh impossible to define all the possible permutations under agency regulation.
B.     The Administrative Procedure Act of 1946 (APA)
1.      Review the state and federal counterparts of this act.
2.      Sections of note include:
·         551 Definitions
·         554 Adjudications
·         556 Hearings
·         557 Initial decisions
·         706 Scope of Review
3.      The APA was extraordinarily important development because it attempted to fix some of the ambiguities of the dense administrative provisions.
4.      The APA is basically a regulation establishing uniform procedure.
C.     Londoner v. Denver, 210 U.S. 373 (1908).
1.      The Court found that the Due Process Clause of the U.S. Constitution required that, before an assessment was fixed, the taxpayers must have had notice and an opportunity to be heard.
2.      The publication of the proposed assessment in a newspaper of general delivery satisfied the notice requirement.
3.      However, the Court found that the taxpayers were not given an opportunity to be heard because the assessment was fixed at a special city council meeting of which the time and date were not published and at which the taxpayers were not present to give argument.
4.      The Court reversed the judgment of the lower court.