1) INTRO
a) Overview Of The Administrative Structure
i) Agencies Generally
(1) APA Definition [5 USC §551(1)]
(a) Each authority of the government of the US, whether or not it is within or subject to review by anther agency
(b) Definition is broad including an array of different entities
(2) State and state agencies
(a) Not subject to APA
(i) Not authorities of the US government
(3) Franklin v MA
(a) Excludes president as an agency
(4) Historically the agency heads are considered to be “departments” and consist of the people on the president’s cabinet
(a) There are 15 departments
(i) All of these agencies are considered to be part of the executive branch meaning they are subject to the discretion and control of the president as head of the branch
ii) Independent Regulatory Agencies
(1) Outside of the executive branch
(a) There are also about 15 of these
(i) Ex. FTC, SEC and FCC
(b) Called independent because they generally share certain characteristics that insulate them from the control of the president
(i) Characteristics
1. Headed by multi-member groups
2. No more than a simple majority may come from one political party
3. Members have fixed, staggered terms so that their terms do not expire at the same time
4. Can only be removed from their positions for cause unlike most other officials that serve at the pleasure of the president
iii) Government Corporations
(1) Sometimes the government charters a non-profit corporation to provide a service
(a) Ex. Amtrak
(2) They generally are not considered to be “agencies” of the government and therefore are not subject to the procedural requirements of admin law
b) What Agencies Do And How They Do It
i) What They Do
(1) Agencies are the entities that basically execute the laws that congress passes
(a) Can be characterized in a number of ways
(i) Regulating private conduct
1. Ex. OSHA regulates employers’ workplaces
(ii) Distributing entitlements
1. Ex. Department of Health gives out food stamps
(iii) Managing Federal Property
1. Ex. Department of Agriculture manages national forests
(b) However many agencies do not fall neatly into a category
(i) Nevertheless, most of what these agencies do have a direct and substantial effect on private persons by:
1. Prohibiting or denying an activity
2. Granting or denying a benefit
3. Affecting the environment
ii) How They Do It
(1) When agencies act in a way that affect private persons outside of the government (private conduct), it is done in one of two ways
(a) Rulemaking
(i) A lot like statutes passed by congress
1. Establish rules for future on generic basis, not on a personal basis
a. Even look like statutes organizationally
(ii) Basically agencies mimic congress passing a statute when they are passing rules
(b) Issuing an order after an adjudication
(i) Resembles court proceedings
1. Only differs when it comes to licensing
a. Agency engages in licensing when it grants someone permission to do something
i. Not necessarily dealing with adversarial parties
(2) Agencies like to be as efficient as possible
(a) General sources of procedure is due process and the APA
(3) There is a technical third category that includes things that do not necessarily fit nicely into either the rulemaking or adjudication processes
(a) Involves investigations and gathering of information
(i) Generally happens in the beginning stages of either rulemaking or adjudication as a way of building up evidence for either
1. But it is by no means limited to this
a. Thus has its own set of procedural regulations
c) The Role Of The Courts
i) Always have played a strong role in the admin law arena
(1) DC circuit court tends to be thought of as the “expert” on admin law because of its location and ability for people to sue the federal government from that court system
ii) When courts can become involved
(1) When a person challenges an agencies action
(a) Happens in one of two ways
(i) When a person sues an agency alleging the agency has acted illegally in come way
(ii) When agency sues a person purportedly enforcing one of the laws applicable to the agency and the person defends against the agency by alleging the agency is acting illegally
2) SEPARATION OF POWERS ISSUES: ARTICLES I, II, III OF THE CONSTITUTION
a) Intro
i) Purpose of separation of powers
(1) As James Madison says, the purpose of the separation of powers is to
Certain powers are inherently legislative or executive; the two powers are qualitatively distinct things
2. Critiques:
a. It is difficult to define “legislative power” and “executive power” in a complete but yet non-overlapping way.
i. Rationale: Most executive power involves some degree of discretion, which will look a lot like lawmaking (legislative power).
ii) Adjudicative v. Rulemaking Agency Power Generally
(1) Londoner
(a) Due Process rights (Due process = notice + opportunity to be heard) attach to governmental activities that are adjudicative in nature, but not to activities which are legislative in nature. In the context of taxation, a legislative body has the power to tax without affording citizens due process protections.
(i) However, when the decision to tax particular individuals is made by a non-legislative body based on the individual facts and circumstances of a particular case, the decision becomes adjudicative in nature, and due process protections attach.
1. Due process in this context requires at least an opportunity to be heard in person and present evidence.
a. No such opportunity was heard.
i. Therefore, the action violated Due Process, and the liens were void.
b. Here this was an adjudication® affects few and deals with the past
(2) Bimetallic
(a) Facts
(i) The State Board of Equalization of the state of Colorado and the Colorado Tax Commission ordered that the valuation of all taxable property in Denver be increased by forty percent.
1. Plaintiff’s company brought suit alleging that it had been deprived of its due process protections because a tax had been levied against its property without it being afforded an opportunity to be heard, thereby unconstitutionally depriving it of property.
The Colorado Supreme Court ordered that the suit
