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Administrative Law
WMU-Cooley Law School
Fleener, William

Thomas M. Cooley Law School_Administrative Law_William Fleener_September 2010
                                FEDERAL ADMINISTRATIVE LAW
***Gilmore v Lujan: Government had bunch of land out west. Occasionally they let people drill for what might be underneath those lands. Gilmore is given a lease to drill oil or gas on government land. The application was sent to Gilmore, he was supposed to sign it (handwriting) and turned it back. The rule of Code of Federal Regulation required such a signature.
***When an administrative agency properly administrates a rule, it has the force or effect of law. It has the effect of a statute but it is not a statute since it is not enacted by Congress
***Gilmore: 43 CFR 3102.4 says that all application and original offers shall be holographically signed in ink by the potential lessee… Machine or rubber stamped signatures shall not be used”. Gilmore also had 30 days to return the papers. So there are rules in the administrative agencies that set up the process to accept these leases
***Gilmore: Gilmore signed and mailed the paper first from Nebraska but when his secretary noticed that on the date of the deadline they did not receive, they called to inquire about it. When they find out that the agency did not receive the paper, the faxed the paper to the agency with a rubber stamp signature. The agency does not give them the lease. Gilmore sought internal judicial appeal
***All administrative agencies have an internal appeal within the agency
***Gilmore:  The court seems to suggest that Gilmore got screwed but the court said that there is nothing it can do about it. It is often the case that courts are not allowed to substitute their judgment for administrative agency rules. In this case, the administrative agency has promulgated rules and they have interpreted the rule; the rules are reasonable so, the court will eave them alone
***” “You must turn square corner”: you have to be careful, the rule matters. If you want the benefit the government is providing, you must follow the rule
***Administrative agencies are created by congress through statutes, they are given their authorities by congress. The only authority they have is derived from some statutes.
***Agency: whenever we are dealing with administrative agency and we are looking for where they got their power, we will look to the enabling statute. The enabling statute is what creates the agency and gives its power.
****We have congressional authority being exercised by administrative agency.
Agency: Agency means each authority of the government of the United States whether or not it is within or subject to review by another agency but does not include:
a)      Congress
b)     The courts of the United States
c)      The governments of the territories or possessions of the United States
d)     The government of the District of Columbia
***The president is not an agency within the federal government; he is not covered by the federal Administrative Procedure Act
***Freytag v Commissioner of Internal Revenue: Petitioners sought review in tax court because of deficiencies in their tax return that amount to $1.5 billions. When petitioners sought review in the tax court, their cases were assigned  to a Tax Court Judge.  When this judge became ill, the chief judge of the Tax Court assigned Special Trial Judge to preside over the trial
****Special judges are like magistrate in the federal court, the court appoints them, and they do investigation. Magistrates do pre-trial stuff and write up summaries for the judges
****Freytag: In this case, a magistrate took over the case the tax judge had. Petitioners complain because a special judge did their cases. Freytag argue that if subsection b(4) permits a special trial judge to preside over the trial of any Tax Court case, then the statute violates the Appointment Clause of the Constitution
***Employees and officers are not the same. Officers exercise the authority of the government. Employees do not have this power
***Primary officers, inferior officers, and employee.
***Freytag: Freytag argues that the special judge is an employee and that he does not have the authority to decide the case. Congress appointed the chief judge of the tax court, congress create the tax court, and the chief judge appoints the special judge.
***Special judge: in order for him to be an inferior officer he has to be appointed by the president, court of law, or head of department.
*** Freytag: the special judge was not appointed by the president. IRS argues that the tax court is a department and the special judge is the head of the department, the court did not buy it. The only thing left is the court of law; the court said that the Tax Court is a court of law. So the appointment by the head of a court of law of another judge is constitutional under the appointment clause
***Administrative agencies exercise all 3 branches of government’s authority: legislative, executive and judicial authority
****When we think about exercising judicial authority, we need to think about that in the context of an administrative agency. The Social Security Administration that does social security disability does judicial type activities over the phones like hearing ect. That’s judicial activity
***Tax court is a good example, it looks like a court home. It exercises nearly exclusive judicial authority           
***Some agencies will use all 3 types of authorities
***If you have a boss, you are not a superior officer
***Administrative agencies are distinguished from regular agencies by their independence. They are independent in removal of the actor involved and policy implementation.
****Rule making: 553, 556/557
***Administrative agencies make rule in 2 ways: 553, 556/557
***553 is called informal

uty or malfeasance in office. So this was a limitation on the president’s power of removal of a FTC commissioner
***Humphrey: The court held that this limitation of the president’s power was constitutional because there was no removal power retained by Congress.
Browsher:  the concept from the cases are that “ Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.”
 Morrison: Congress enacted the Ethics in Gov’t Act that allows for the appointment of an independent counsel to investigate and prosecute high ranking government officials for violations of federal criminal laws. The issue was whether the appointment of an independent counsel violates the appointment clause?
***Morrison: The independent counsel in this case was not principal officer as defined in appointment clause which has to be appointed by the president with the advice and consent of the senate.
***Morrison: The court held that the independent counsel was an inferior officer because he has a supervisor (Attorney General); the act only gives the independent counsel the power to perform limited duties; a Special court determined the limits of the independent counsel’s prosecutorial jurisdiction; and the counsel’s office was limited in tenure because it ends when he stops or the attorney general terminates him for good cause.
***Morisson: This case adds that the independent counsel appointment is constitutional. And that it is constitutional to limit the President’s removal power as to independent agencies as long as it does not interfere too much with the President’s executive duties.
***If you enact something you have to leave it alone, the only way to change it is to enact something new. Congress will be within its authority to enact legislation getting rid of the special prosecutor statute.
**** But that’s Congress’s only ability to affect stuff once they have been legislated; once it has been legislated they have to leave it alone and let the presidential and judicial branch do what it has to do and the only way to affect it is to enact new legislation
****Ultra Vires: Because administrative agencies are creature of statute, it must act within the scope of any authority delegated to it by Congress. When the agency acts