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Administrative Law
WMU-Cooley Law School
Fleener, William

Federal Administrative Law Outline

What is Admin Law? Administrative Law is about procedure that government agencies must follow in order to take action that affects private parties.

What are Agencies? Agencies are an extension of Executive Branch. Defined in Title 5 USC § 551: Each authority of government even if subject to review by another agency.
o Except Congress, Courts, Governments of D.C. and President (Franklin v. Massachusetts)
o Except States and state agencies

Historically the most important agencies were “Departments,” the heads of which constituted the President’s cabinet. (The proliferation of Departments has undermined the cabinet’s historic importance.)

All agencies are considered part of the executive branch subject to control of President. If they cease to share his vision, he may terminate them at will.

Today, there are 15 cabinet level departments. Other than the Attorney General, the Heads are called Secretary. Heads of Agencies must be confirmed by the Senate, while White House Advisors do not.

1. Agriculture
2. Commerce
3. Defense
4. Education
5. Energy
6. Health and Human Services
7. Housing and Urban Development
8. Homeland Security
9. Interior
10. Justice
11. Labor
12. State
13. Transportation
14. Treasury
15. Veterans Affairs

The Departments contain a number of Agencies including:

1. Forest Service in the Department of Agriculture
2. Bureau of Census in the Commerce Department
3. FDA in the Department of Health and Human Services
4. Fish and Wildlife Service in the Interior
5. FBI in Justice Department
6. IRS in Department of Treasury

There are also agencies outside of Departments:

1. EPA
2. CIA
3. USPS
4. Social Security Administration

There are about 15 Independent Regulatory Agencies that are considered outside the Executive Branch, and NOT subject to removal by President

Independent Regulatory Agencies:
What Do They Look Like?

1. FCC
2. NLRB
3. Nuclear Regulatory Commission
4. Federal Reserve Board
5. EEOC
6. FDA
7. HUD
8. FTC

o Governed by 5-7 Commissioners
o Usually not subject to Presidential Control
o Can only be removed “for cause” unlike other executive officials who serve at the pleasure of President.

DIFFERENCES BETWEEN INDEPENDENT AND EXECUTIVE AGENCY

Independent

Executive

§ Independent Regulatory Agency: has the name of commission or board. It’s title reflects that it’s led by multi-member group rather than a single head.

§ If the CPSC (independent) decides to adopt a new consumer regulation, it would require a majority of votes by its board.

§ It’s very hard to remove members of a board because it takes 3 years to get a simple majority.

§ Even if the simple majority shifts its vision, the President still can’t remove unless the member partakes in malfeasance, neglects post, or violates another part of the statute that lays down her job description.

§ No more than a simple majority can be from one party in an independent regulatory agency.

§ Executive Agency: Title Heads like Director, Administrator, Secretary

§ If the Administrator of the EPA wishes to issue a regulation, no voting is necessary, she can just do it.

§ Serves at the President’s pleasureà “at will”

What Do Agencies Do? In General, they permit or prohibit activities, grant or deny benefits, and monitor our environment.

Execute Laws That Congress Passes: For example, the IRS collects taxes, the Social Security Administration is responsible for paying Social Security benefits
Regulate Private Conduct: EPA regulates activities to control industrial and private pollution
Disburse Entitlements: Department of Agriculture gives food stamps; Medicare Center gives Medicare
Managing Federal Property: National Park Service (Interior)

How Do Agencies Do It?

Issue Rules: Look a lot like statutes passed by Congress.
Issue Orders after Adjudication: Look a lot like what Federal Courts do.
Example: EPA makes Rules specifying amount of pollutants an industry can emit.
Example:FTC might issue a cease and desist order to a company who’s marketing scheme is unfair or deceptive.

r than an employee, her appointment is governed by the Appointments Clause. The hard question is whether the General Counsel is a principal officer or an inferior officer. The Court hasn’t stated a bright-line rule for distinguishing between those to types of officers. The Court has instead identified several relevant factors in Morrison, most importantly, if the officer is subject to removal by higher executive official, perhaps the officer is inferior. But a good argument can be made either way. I

Morrison v. Olson 1988
This case involved a federal statute that authorized “independent counsels” to investigate and prosecute crimes by high-level federal officials. Under the statute, an independent counsel was not appointed by the President with the advice and consent of the Senate. Instead, she was appointed by a panel of 3 federal judges (courts of law). So IC Alexia Morrison had Theodore Olson held in contempt for refusing to cooperate with her investigation. Mr. Olson challenged the contempt order, arguing, among other things, that ICs were principal officers; they therefore could be appointed only by the President with the advice and consent of Senate. Since Ms. Morrison hadn’t been appointed in this manner, Mr. Olson argued her investigation was invalid and Olson couldn’t be held in contempt for refusing to cooperate with it. The court rejected that argument holding that ICs were inferior officers. The court based that holding on 4 factors. (nature and scope of duties limited)

ICs could be removed by higher exec. Branch officials, namely the AG.
ICs had only certain, limited duties, namely those of investigation and prosecution.
Their offices were limited in jurisdiction reaching only certain serious federal crimes by certain high level federal officials.
Their offices were limited in tenure; once a particular investigation and any related prosecutions were finished, the ICs office ended.

Removal of executive officials
After an officer is appointed, she can be removed. The constitution doesn’t mention removal of officials except thru impeachment, an extraordinary procedure under which the House charges and the Senate tries officials for “Treason, Bribery, or other high Crimes and misdemeanors.” Impeachment and conviction results in removal from office.