#16882 - Administrative Law - Administrative Law

Legislative Control of Administrative Agencies

1. Five Components that Make Agency Law

   1. The US Constitution

   2. The APA

   3. The Enabling Act of the Agency /Organic Act

      1. Legislature must

         1. Assign the agency Mission

         2. Define agency structure

            1. Cabinet level

            2. Freestanding

            3. Independent

               1. Multimember Commission

               2. Small Bureaucracy

            4. Agency’s placement within the existing government

   4. Other Federal Statutes governing general agency action

   5. Common Law

2. Go back and look at Fox Pages 1-11

3. The Administrative Process

   1. Generally – Governed by the APA and Enabling act and each agency may have various ways for handling each problem it is therefore important not to over generalize.

      1. Three Main Constructs of Agency Decision Making

         1. Rulemaking - Here the agency is completing a semi-legislative function

            1. Informal Rule Making – Notice and Comment: when the agency calls for comment on a proposed rule and then formalizes the rule basis upon the comments

               1. APA 553

         2. Adjudication/ Formal Rule Making – a process of having a hearing to which evidence is heard or admitted and a final rule is issued.

            1. Often does not have Fed. Rul. Civ. Pro.

            2. APA 556 and 557

            3. Agency statute may require formal rule making on some issues but allow notice and comment in other situations

            4. Requires

               1. An action like a civil trial with oral hearing and direct/cross examinations

               2. Testimony is made under oath

               3. Complete and exclusive record

               4. Neutral presiding officer (often an admin law judge)

               5. However does not have many requirements of evidentiary rules nor is there must pre/post trial procedures available.

         3. Informal Agency Action – This occurs when the agency takes positions during individual matters and applies a standard that it had not previously promulgated. Then trying to substantiate that position upon appeal or judicial review

            1. Example: Denying every application for SS benefits to lefties.

            2. Often called the dark matter of administrative law

            3. Minimal requirements for reasoning

            4. Informal

      2. Alternative Dispute Resolution – Commonly called Negotiated Rulemaking

         1. The representatives of an impacted group get together with the agency and negotiated the terms of a proposed rule prior to its publication in the Federal Register.

   2. Mechanisms of Administration

      1. Agency does the work itself

      2. License other to complete actions

      3. Regulates an industry

         1. Justifications for Regulation (Stephen Byer)

            1. Control Monopoly power

            2. Control excess profits

            3. Compensate for externalities

            4. Compensate for inadequate information

            5. Inhibit excessive competition

            6. Compensate for unequal bargaining power

      4. Registers and Monitors actions

      5. Gathers information

Legislative Control of Administrative Agencies – The Nondelegation Doctrine

1. From the Constitution

   1. Article I §1 provides that all legislative powers are vested in congress

   2. Article I §8 the necessary and proper clause – states that congress may make laws necessary and proper for carrying into execution.

   3. In other words while congress has the only authority to make laws they have the right to make laws required to enact the laws the limitation is called the Nondelegation Doctrine.

2. Nondelegation Doctrine

   1. Filling Up the Details – Congress in several cases was allowed to assign the president authority in several matters when he was merely “Filling up the details” by applying one of several standards as the facts allowed.

      1. Wayman v. Southard (pg. 24 Fox)

         1. Court recognized that congress could not by itself perform every aspect of government. For example the treasury had been in place since before the Constitution.

         2. This is the first case that provided the “filling up the details” once congress had established the general regulatory scheme is permissible.

      2. Field v. Clark (1892 pg. 16 Clark)

         1. The President was granted the power to remove or suspend “favorable international tariff rates” in the event that the other country did not reciprocate in lowering theirs.

         2. That congress cannot delegate legislative power…is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The Nondelegation doctrine is the recognition of this principle.

         3. Statute upheld because the authority was only authorized to make a determination of fact.

            1. Were the other countries tariffs lowered?

               1. If yes, then the lower US rate/rules would apply

               2. If not, then the old rules and rates would apply.

         4. Therefore the legislative power had not been transferred only the right to Fill Up the Rules established by Congress. They could determine what was or was not in compliance with the tariff law on its own authority.

   2. Intelligible Principle Test

      1. Hampton and Co. v. US (pg. 17 Cass)

         1. Established that the president was authorized to make rules of tariffs to equalize the production of certain items with that of the US.

         2. TO be valid Congress must

            1. Lay down by legislative act an INTELLIGIBLE PREINCIPLE to which the person or body authorized to fix such rates is directed to conform.

         3. Congress could not have the specific knowledge and experience to handle in a timely fashion such a complex matter and therefore it was a valid exercise of their authority because the agency was bound by the rules of the enabling act.

   3. The New Deal Cases (National Industrial Recovery Act of 1933 aka the NIRA)

      1. Panama Refining Co. v. Ryan –

         1. An oil refining portion of the NIRA that provided the government may inhibit the interstate commerce of any refinery or drilling company that extracted oil in excess of their respective state limits under Section (.

         2. Court struck down because congress failed to provide guidelines, criteria, or requirement of findings to validate compliance with state laws that the president must operate within. Therefore the president had almost unlimited authority to deny interstate commerce rights to an entity and that goes too far

            1. Cardozo dissent: the stated purpose to conserve natural resources is enough and the president acts based on an objective study typical and classic form from Field or Hampton Cases.

      2. Schechter Poultry v. US –

         1. The NIRA allowed the president to make laws for the fair competition at the recommendation of trade associations. In the case at hand, Roosevelt approved suggestions including wage, labor hours, and pricing minimums.

            1. Was a private group setting standards for an industry with no inequitable restrictions on membership and the regulations were far broader than just reviewing industry for monopoly or safety practices.

         2. The court found this went too far because the agency was able to take any and all powers previously vested in congress and the state legislature like wages. This was too legislative and far reaching.

      3. Carter v. Carter Coal

         1. Court struck down an act which would provide that local coal producers could elect a board to establish the minimum price of coal in a district.

         2. This was a delegation of legislative authority in the most obnoxious form because it is not to an official body but a private person whose interest may be and often are adverse to the interests of others in the same business.

      4. Industrial Union Dep. AFL-CIL v. American Petroleum Institute (aka the Benzene Case)

         1. Limited the Ability for OSHA to prescribe occupational health and safety standards only to SIGNIFICANT RISK

         2. Rehnquist Concurrence

            1. It was unconstitutional under Nondelegation authority because it failed to ensure

               1. That important choices of social policy are made by congress, the branch most responsive to popular will

               2. To provide an intelligible principle to guide acts exercise of delegated discretion

               3. To enable courts to test that exercise against an ascertainable standard.

      5. American Textile v. Donovan

         1. The secretary must only find significant risk, once that has occurred there is no need to review the cost benefit analysis of any regulation or rule.

   4. Delegation Since the New Deal

      1. Whitman v. American Trucking Association

         1. The court found that the EPA was allowed to regulate the emissions of automobiles but it was limited to reason and science. More is bad less is better approach to pollution is not enough there must be a scientific reason to support any changes to the current regulations as promulgated.

      2. Brown v. Sygar

         1. Congress gave the Comptroller powers of review over the President’s proposed budget.

         2. The president could appoint the person but only congress could remove the Comptroller and therefore it amounted to a legislative veto which is not allowed or an improper delegation of authority because it delegated the president’s powers and not that of congress.

3. Solving a Delegation Problem

   1. Two Part Review of a Statute See fox pg. 32

      1. What is the standard in the Statute?

         1. Five Common levels

            1. Public convenience and necessity

               1. Federal Marine Commission

            2. Unfair methods of trade or competition

               1. FTC

            3. National security (oil imports)

               1. Energy Department

            4. Protect health to the extent reasonable

               1. OSHA

            5. Protect human health and environment to an adequate degree of safety

               1. EPA

         2. If the court does not find any of these then Panama and Schechter will make the statute void

         3. Most modern courts will bend over backward to find some standard like Cardozo in his Panama Dissent

      2. To whom is the decision making power given?

         1. The President or principal officers

            1. Okay

         2. Subsequent Delegation within the agency

            1. Aka subdelegation

            2. Okay

         3. Private Entities or entities in another branch of government

            1. If setting policy

               1. Schechter and Cater coal will basically call it an obnoxious use of authority and strike it down

            2. If applying a policy standard to a set of facts

               1. ...