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

Administrative Law – McGinley – Spring 2007
Agency Rules have the force of Law
Constitution says nothing about Agencies
What Spurred Growth of Administrative State?
Railroads, Interstate Commerce Commission (1887)
Radio, FTC
New Deal, Wagner Act, inequities between labor and management, social security
Most Agencies are part of the Executive Branch; some are Independent Agencies
Policy – why do we have agencies?
Procedural Framework
The Fundamental Procedural Categories: Adjudication & Rulemaking
Adjudication (Londoner v. Denver) – Must have some DP where:
Few people are affected
They are exceptionally affected
Everyone has their own story to tell, each affected on individual grounds
Rulemaking (Bi-Metallic) – No DP required when:
The rule applies to everyone; everyone is affected
The rule is prospective, like legislation
The individuals’ interests are represented in the whole; protected by representational government/electoral process
The Constitution
Checks and Balances – problem is that agency members are not elected but they have enormous power
Constitution says nothing about agencies; their power is implied
Basic Structure of the Federal APA
Purpose – uniformity, to control the administrative state, to ensure fair/due process, checks and balances
APA set the minimum for procedure, but agencies can provide more for the benefit of the public
§ 551 – definitions section
Rules (result of rulemaking) vs. Orders (result of adjudication)
Agencies and the Structural Constitution
Constitutionality of Giving Agencies Legislative (rulemaking) and Executive Power (enforcement)
There is nothing in the Constitution that speaks directly to Agencies
Source of Congressional Power to create Agencies – “Necessary and Proper Clause”
The Non-Delegation Doctrine – Congress cannot delegate legislative power to the Executive or the Judiciary because it violates the doctrine of separation of powers and the structure of the Constitution; prohibits excessive delegation of discretionary powers
This doctrine is barely still alive – recently court has been hospitable to delegation because it is a practical necessity
“Intelligible Principle Test” – Congress must provide a standard, an intelligible principle, under which the Agency must carry out its duty so that Courts can determine whether the Agency has done what Congress instructed it to do (Panama Refining & Schecter Poultry)
Loosens the constraints placed on agencies by the non-delegation doctrine
The Constitutionality of Giving Agencies Judicial Power (adjudication)
Authority – congress has the legislative power and the power under Article III to establish the lower federal courts (Crowell v. Benson); if congress creates a right it can delegate the power to adjudicate it to an agency
When can Congress Create Art. I Courts? – when there is no threat to the separation of powers
Balancing Test (CFT v. Schor) (basically Congress’s need for efficiency and expertise vs. the threat to separation of powers and the interests of the private parties)
Allocation of Judicial Power (does Art. III court maintain control of essential judicial functions?)
Nature of the Right
Public Rights – claims against the government, permissible because the government has sovereign immunity and can put restrictions on their ability to be sued if they waive it
Private Rights – legal disputes between private parties, can only be heard by agencies under certain conditions
Congressional Purpose
Controlling Agency Power: Congressional and Presidential Oversight Efforts
1.      Presidential Oversight
a.      Appointment and Removal Power
                                                                          i.      Const. gives president power to appoint executive officers (Myers); Executive cannot remove officials who perform legislative or judicial functions (Humphrey’s Executor)
                                                                        ii.      Power to remove comes with the power to appoint (Myers)
            iii. Congress does not have the power to remove; only the power to decide who does removal of                           inferior officers; only president can remove principle officers (Myers)
            iv. REMOVAL – pres can remove anyone who is not above him (check on pres)

he Law to take away Agency’s power
3.      Constituency Checks – people writing letters to their state legislators/congress
4.      APA
5.      Courts on review (see sections below on Judicial Review)
Adjudication (§ 554)
Sources of Procedural Requirements
Organic Statute
Agency Regulations
APA – just the minimum requirements, must also check other sources
Formal Adjudication
When Required (§ 554) – Only occurs when the enabling statute requires a “hearing on the record” after opportunity for an agency hearing
When the enabling statute is unclear or silent, court will defer to agency’s judgment on whether there must be a formal adjudication (majority rule)
OR if an adjudicatory hearing is subject to judicial review then it requires formal adjudication even if the magic words aren’t used (minority rule, Seacoast)
Initial Hearings
How are they different from regular judicial adjudications?
Hearsay is admissible before agency adjudicators
Judicial Notice is broader in Administrative proceedings
Must give parties notice before taking judicial notice of facts so that parties have a chance to respond to/rebut the facts (Castillo-Villagra v. INS)
Witnesses can give sworn testimony on paper, saving only cross examination to occur before the board
Standing – Who can Participate
Agency Can’t have a blanket rule prohibiting interested public from intervening; some public participation must be allowed (Office of Communications v. FCC)
In a regular trial, groups that are not really a party would not be allowed to participate unless injured in fact
Agencies don’t have to defer to Article III standing requirements; they can define their own (Envirocare v. NRC)
Findings of Fact & Conclusions of Law