Administrative Law Outline

Administrative Law Outline
Spring 2010 – Professor Schuckers
A. Introduction
Historical Development of Agencies
1)     3 Major Time Periods for SCOTUS/Administrative Law
a)      1789-1861: Federal Government vs. State Government
i)       No agencies exist
ii)     Civil war – federal government is supreme
b)     1865-1937: Government regulation vs. free market
i)       First agencies begin to sprout
ii)     ICC – first agency, regulating railroads
iii)   FDA – 1906, in response to The Jungle
iv)   Depression sparks agency boom. FDR creates numerous agencies
(1)  Panama Refining and Schecter Poultry – the only cases during this area where Roosevelt was put in check
v)     1936 – Roosevelt’s new deal was overwhelmingly supported by people during this election; Roosevelt wants to pack the court to               get legislation passed
(1)  NLRB v. Jones. Court possibly gave in to executive and                 allowed agencies to take over
vi)   Preamble of the constitution – “general welfare of the people” – Roosevelt took really far
c)      1937-Present – “Rooseveltian Reality” – Government vs. the individual
i)       Roosevelt reelected and continues expansion
(1)  New Deal – “Alphabet Agencies”
ii)     LBJ expanded agencies even further
(1)  Medicare and Medicaid
(2)  War on Poverty.
(a)   LBJ saw need for federal government to help poor.
iii)   Environmental Movement
iv)   Civil Rights Act
 
2)     6 Theories of Agency Behavior
a)      James Madison (1787)
i)       “You first must enable the government to control the governed; and in the next place, oblige it to control itself.”
b)     Joseph Eastman (1928)
i)       Lets put experts in these positions and they will do a good job because they take an oath
ii)     Unrealistic thinking
c)      James Landis (1938)
i)       Godfather of the administrative state
ii)     Trust experts in the field
iii)   Highly trained, academic people who have nothing but goodness in their hearts
d)     Marver Bernstein (1955)
i)       You can’t go back to Madisonian era, but you can have some sort of control over these people
e)      Roger Noll (1971)
i)       Agencies are captured by politics and the industry
f)       James Wilson (1980)
i)       No single theory of agency
ii)     Each agency is different
 
3)     Lawson’s 5 Deaths – According to Lawson, there are 5 separate deaths caused by the rise of the administrative state:
a)      Limited Government
i)       Government is much more extensive and involved than it was in 1776
b)     Nondelegation Doctrine
i)       Articles I, II, and III vest specific powers in specific branches
ii)     No authority to delegate exists
c)      Unitary Executive
i)       President alone is supposed to enforce these laws
ii)     Independent agencies aren’t even subject to presidential removal
d)     Independent Judiciary
i)       Should allow a de novo appeal
ii)     Should not defer to agencies discretion
e)      Separation of Powers
i)       One agency has legislative, executive, and judicial authority
ii)     Madisonian definition of tyranny! – “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”
 
4)     Revolution of 1937 – What does this mean?
a)      Roosevelt’s New Deal of 1937
i)       Supreme Court says agencies are constitutional
ii)     Lawson argues there should have been a constitutional amendment for this
iii)   Supreme Court acting politically – realize that the people like FDR
Agencies: Origins and Form
1)     What is an agency?
b)     “each authority of the Government of the United States, whether or not it is within or subject to review by another agency …”
2)     How are they created?
a)      Organic Acts – Congressional statutes which establish agency power
b)     Necessary and Proper Clause
i)       Congress gives agencies this power through the Necessary and Proper Clause
ii)     They have all power to do those things “necessary and proper” to fulfill their first 17 enumerated powers
3)     Structure
a)      Created by Congress under the President and the decisions can go into the Judicial branch
b)     Single-headed vs. Multi-member
i)       Single-headed agencies
(1)  Only one person at the top of the agency
(2)  Usually executive
ii)     Multi-member agencies
(1)  Board of directors or commission members at the top of the agency
(2)  Usually independent
c)      Executive vs. Independent Agencies
i)       Executive
(1)  Heads can be removed by the President
ii)     Independent
(1)  Heads cannot be removed by the President
Agency Functions
1)     Adjudicating
a)      Londoner v. City & County of Denver – city trying to asses a tax divided among those whose property frontage is along a road they’re improving; charter says that there is a certain procedure (petition signed by affected individuals, etc.); city doesn’t follow the procedure
i)       RULE: Due process is required when there is a small amount of people and the situation involves past conduct. Due process requires:
(1)  Notice,
(2)  Opportunity,
(3)  Fair Tribunal
2)     Rulemaking
a)      Quasi-legislative functions
b)     Bi-Metallic Investment Co. v. State Board of Equalization of Colorado – state board ordered that valuation tax of property be increased by 40% across the state; P’s company brought suit and said it was deprived of due process because it didn’t have an opportunity to be heard; issue: are all property owners entitled to hearing prior to an order altering property taxes for the entire state?
i)       RULE: When a government is engaged in something that affects a large number of people in the future, they’re engaged in rulemaking. Due process is not required.
3)     Overview
a)      Adjudication
i)       Londonder
ii)     Deals with the past
iii)   Affects very few people
iv)   “Quasi-judicial” capacity
v)     Constitutional due process is required
b)     Rulemaking
i)       Bi-Metallic
ii)     Affects the future
iii)   Deals with very many
iv)   “Quasi-legislative”
v)     Constitutional due process not required
Separation of Powers Theory
1)     James Madison
a)      Concentration of power is the definition of tyranny
b)     We need checks on these branches
c)      Would hate the agency structure of today