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Administrative Law
WMU-Cooley Law School
Hood, Harold

 Federal Administrative Law Outline
Hilary 2010
Professor Hood
I.                   WHAT IS ADMINISTRATIVE LAW?
A.    Definition: Administrative law is all about POWER and –
1.      How it is vested in administrative agencies;
2.      How it is constrained (i.e. requirements imposed on the exercise of power); and
3.      How it is challenged (i.e. remedies against unlawful administration of power).
B.     Administrative Law deals with –
1.      The ways in which power is transferred from legislative bodies to administrative agencies;
2.      How administrative agencies use power; and
3.      How the actions taken by administrative agencies are reviewed by the courts.
C.    Primary Purpose of Administrative Law:
1.      To keep administrative powers within their legal bounds and to protect individuals against abuse of those powers;
2.      To set forth the powers that may be exercised by administrative agencies; and
3.      To lay down the principles governing the exercise of those powers, and provide legal remedies to those aggrieved by administrative action.
D.    Why Study Administrative Law?
1.      The area of law impacts people’s lives, e.g., medical, energy, types of travel, food, driving a car, etc. 
E.     Sources of Administrative Law:
1.      Federal Administrative Procedure Act (APA): Law laying down the basic procedures that must be followed by federal agencies; the foundation of federal administrative law. The Act was promulgated – formally in effect – in 1946.
2.      Model State APA (1961): Corresponding state legislation has been enacted in almost all states, most of which has been patterned after the Model State APA. 
3.      Judicial Review: Judicial review is an important means of restricting irrational agency behavior. 
F.     Gilmore v. Lujan – Limitation on Judicial Review of Agency Discretion:
1.      Facts: P applied for oil/gas lease from D agency. Per the regulation, P had to have the forms into D within 30 days with a holographic signature. P sent the forms via mail, but found out the day before the forms were due that they never made it to D. P signed and faxed the forms to D and then sent the originals to D again via mail. The fax made the deadline but the originals got there the day after the deadline. D rejected the forms for not having a holographic signature and not being in on time even though P claims that a D agent said a fax would do. 
2.      Law:
a.      Federal administrative laws are the same as statutes passed by Congress.
b.      Ignorance of federal administrative laws is not an excuse.
c.       Parties dealing with the government are chargeable with knowledge of duly promulgated regulations. 
3.      Holding: A court has no authority to overrule an agency decision that is within its lawful discretion; it’s up to the agency whether it wants to honor P’s request, not the court. The regulations stated that a signature had to be holographic and original had to be in within 30 days. The regulations provided fair notice to all applicants that failure to comply would result in denial of applications. 
A.    Federal APA §551(1) Definition of Agency: “Agency” means each authority of the Government of the U.S., whether or not it is within or subject to review by another agency, but does NOT include:
1.      The Congress;
2.      The courts of the United States;
3.      The governments of the territories or possessions of the United States;
4.      The government of the District of Columbia; and
5.      The President. 
B.     How does an Administrative Law case arise? Every administrative law case arises out of a controversy between a private party and an administrative agency. 
C.    Powers of Agencies: Many agencies have been given (authority delegated down from the legislature to the agency) both quasi-judicial and quasi-legislative authority in order to determine private rights and obligations. 
1.      Quasi-Judicial Authority (Adjudicatory Authority): Includes the power to decide controversies between parties; authority to decide cases. 
2.      Quasi-Legislative Authority (Rulemaking Authority): Involves the power to promulgate rules and regulations which, like statutes, have the force and effect of law; authority to issue rules and regulations that have the force of law.
D.    Effect of Agency Rules: Agency rules have the force and effect of law so long as they are constitutional, were promulgated in a procedurally proper manner, and do not stray beyond the authority conferred by the legislature (i.e., they are not ultra vires).
E.     Appointment: All officers of the U.S. must be appointed by the President with the advice and consent of the Senate. Congress may vest (confer power) the appointment of inferior officers in the President alone, the courts, or the heads of departments. U.S. Const. Art. II, §2. 
F.     Freytag v. Commissioner of Internal Revenue – Appointment of Special Trial Judges:
1.      Facts: Litigation began because Ps had created a tax shelter scheme and then sought review in tax court.  The tax court judge became ill and retired. The chief judge then assigned another judge to review the tax shelter. This judge determined that Ps owed additional taxes and the chief judge adopted the opinion. 
2.      Law: 
a.      Under §551(7), a court is not an agency. Here, though, the tax court was simply deciding facts under a regulation set forth by an agency; therefore, its acts were adjudicative and don’t violate the Appointments Clause.
b.      Congress may grant the chief judge of the U.S. Tax Court authority to appoint special trial judges without violating separation of powers.
3.      Holding: 
a.      The principle of separation of powers is embedded in the Appointments Clause which states that “Congress may by Law vest the Appointment of inferior Officers, as they think proper.” Here, Congress vested the Chief Judge with the power to appoint special trial judges. 
b.      The Appointments Clause allows inferior Officers to be appointed by the President, the Courts of Law, or the Heads of Departments.
c.       An Article I Court, which exercises judicial power, can be a Court of Law within the meaning of the Appointments Clause. Here, the Tax Court’s function and role in the federal judicial scheme closely resembles those of the federal district courts, which are Courts of Law.
d.      Because it performs exclusively judicial functions, allowing the Tax Court to appoint “inferior Officers” does not undermine the constitutional limitation on the appointment power.
A.    Agencies Fall within Two Structural Categories:
1.      Independent Agencies (Multi-Member Commissions, e.g., ICC, SEC, FTC):
a.      “Independent” refers to an agency that is insulated from presidential control in one or more ways.
b.      There is a statutory limit on the President’s power to remove the head (or members) of the agency.
c.       No more that a simple majority of these members may come from one political party.
d.      The members of the group have fixed, staggered terms, so that their terms do not expire at the same time.
e.       The members can only be removed by the President for “cause” (e.g., inefficiency, neglect of duty, or malfeasance in office); this is a primary characteristic – insulation from arbitrary and executive control. This is unlike most executive officials, who serve at the pleasure of the President. 
2.      President’s Executive (Dept./Cabinet) Agencies (Single-Head Agencies):
a.      Most administrative agencies of the executive branch (e.g., Dept. of Labor and Agriculture) are headed by a single individual appointed by the President.
b.      The President has the power to remove heads of the agency/department from office without cause; they are subject to the discretion and control of President. 
B.     Regulatory v. Non-Regulatory Agencies:
1.      Regulatory Agencies:

ct does not violate the separation of powers principle by impermissibly interfering with the functions of the Executive Branch.
b.      Appointments Clause Analysis: Ind. counsel is an “inferior officer” based on the fact that she is subject to removal by a higher executive branch official; can be removed by Attorney General. Also, ind. counsel can only perform certain, limited duties under the Act. “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. It’s not improper for Congress to vest the power to appoint independent counsel in a specially created federal court.
c.       Separation of Powers Analysis: The power to appoint inferior officers is not in itself an executive function. The independent counsel is a member of the executive branch – Attorney General supervises/controls the prosecutorial powers of the independent counsel, and retains the power to remove the counsel for “good cause.” Furthermore, it is the Attorney General that must request appointment, thus giving the Executive a degree of control over the power to initiate an investigation. Congress isn’t encroaching on executive powers; therefore, Separation of Powers is not violated. 
4.      NOTE: Case represents the functionalist approach, which is where we are heading.
A.    General Rule – Stages of Administrative Agencies: Administrative agencies can be described as passing through several stages of existence. They are usually born amid high hopes that government has taken effective action in creating a new mechanism to carry out the nation’s goals in an area requiring dedicated attention. 
B.     What to Be Aware of With Administrative Agencies:
1.      The reason why the agency was created is no longer an issue, so the agency loses its drive (low hanging fruit).
2.      The social conditions give the agencies their initial momentum and tend to change their shape. 
C.    Public Choice Theory v. Capture Theory:
1.      Public Choice Theory:
a.      Modern public choice theory regards all organized groups demanding services from political institutions, including business and producer groups, environmental groups, labor unions, civil rights groups, and rent control activists. It also regards not just administrative agencies but also legislatures, the President, and to an increasing degree even the courts, as institutions that should be modeled on the assumption that they seek to maximize their own self-interested ends in the way they respond to these multifarious groups. 
b.      People are acting in their own self-interest; what is right for them.
c.       This is where we stand today. We have moved past the Capture Theory Era. 
2.      Capture Theory:
a.      It deals with the disproportionate influence of one type of group – business or producer groups- and focused almost exclusively on the influence that this type of group wielded over one governmental institution – the administrative agency. They capture the agency – tremendous political power that takes over an agency.
D.    Globalization and Privatization: