administrative law

- the legal control of government
- central set of constitutional questions:

- separation of powers questions:

-why does the largest amount of lawmaking come from Article I agencies?
-why are so many Article I agencies insulated from plenary executive control?

- the applicability and meaning of the Amendment V due process clause

- doctrine holds that it doesn't apply at all in administrative agency rulemaking

- central set of statutory questions:

- the Administrative Procedure Act
- "organic" statutes that displace APA

- a sort of federal common law

- case law tradition that regulates, shapes administrative action

1) Founding:(1789-1890)

- founders were well aware of executive departments and their functions
- self-conscious shift from Articles of Confederation to create energetic executive with administrative support (Hamilton)
- Jefferson/antifederalist: administrative states grave threat to Constitutional structure
- more reliance on the states and on common law courts

2) Progressive era (1890-1930)

- concerned with monopoly and corporate power
- Interstate Commerce Commission (1887) - first large interstate regulatory body

3) New Deal (1932-40)

- "constitutional moment"
- rapid, vast construction of administrative state
- interfering with "property rights" in order to protect "individual rights," together with the dependence of individual well-being on other people

- move from "political rights" to economic security and independence

-three different sort of justifications:

-economic grounds (ex. FTC, FDIC)
-efficiency grounds (SEC)

- rethinking of federal system

- exit not really a possibility
- voice on the state level is a cruel joke because state governments are small and thus prone to faction (cf. Federalist 10)

- rethinking of checks and balances:

- Hamilton: speed and efficiency is necessary
- Jefferson: insistence on democratic self-governance
- James Landis: coordination is necessary (businesses use coordination, not checks and balances)
- Landis also: expertise is necessary: none of the constitutional branches involve specialists

- "The Coming American Fascism:" positive account about rising american fascism

- enthusiasm for presidential authority

4) APA passed in 1946: compromise between New Deal enthusiasm and skepticism (Roscoe Pound) about the risk for individual liberties

- regularize and ensure some kinds of judicial review of administrative action
- trying to replicate both democratic participation and checks and balances at administrative level

5) "rights revolution" (1960-1980): using new conception of individual rights involving protection against discrimination and discrimination against risks

- rise of administrative institutions designed to protect against occupational health and safety risks, risks from consumer products, and environmental risks, along with risks of age, race, sex, national origin discrimination
- President Nixon as first environmentalist President, insisting that clean air/water were birthright
- judge-made doctrine: courts increasingly interested in protecting beneficiaries of regulatory programs

- loosening restrictions of common law

6) "cost/benefit state" (1980-):

- Executive Order 12291: requires administrative agencies to do cost-benefit analysis as rule of decision for their policy rulemaking
- four different strands:

- softening but continuation of 1970's approach of saying that certain social problems call for rights-based response, and while cost-benefit analysis is appropriate to the form the response takes
- attack on New Deal approach ("Constitution in Exile")

- both constitutional version (ex. in Thomas' opinions) and political version (ex. Bush)

- "reinventing government:"

- insisting on more collaborative methods of solving social problems, less adversarial relationship (ex. using lawsuits as last resort)
- insist on greater flexibility, using approaches that allow the private sector to choose its own means to meet public policy goals
- trying to identify the cheapest possible tools for seeking a certain end
- insisting on better priority-setting (Breyer): reallocating expenditures to low-expenditure, high-payout programs in order to best use scarce resources

- insisting on cost-benefit analysis whenever fairly possible

- two versions of this:

1. Is the case reviewable at this time at the behest of this plaintiff?
   - Does the plaintiff have standing?
   - Is there sufficient ripeness?
   - Is reviewability precluded by statute?
   - Is reviewability precluded by statute?
   - Is discretion committed to the agency by law?
   - Is there exhaustion of administrative remedies, if the claim is cognizable first only in an agency?
   - Does the agency have primary jurisdiction if a claim is cognizable first in a court, but requires resolving issues that are within the special competence of an agency?
2. If yes, is there any Constitutional defect in the adminstrative action?
   - Does the agency violate nondelegation, either as a doctrine or a canon of construction?
   - If the case involves agency adjudication, has the agency usurped Article III judicial power?
   - Does the action usurp executive administrative power?
   - Has the President exceeded his powers over an independent agency?
3. If no, has the agency adhered to the law?
   Applying the Chevron v NRDC principle,
   - Has an agency decision of law considered all statutorily relevant factors?
   - Has an agency decision of law considered any statutorily irrelevant factors?
   - Does Chevron v NRDC trump, or is trumped by, any canon of construction?
   - Is there an improper agency interpretation of regulations? (Most likely, no)
4. In applying the hard look doctrine, has the agency acted arbitrarily or abused its discretion?
5. Are the agency decisions of fact properly made?
   - If a formal APA proceeding, does the agency's findings of fact have substantial evidence?
   - If an informal APA proceeding, are the findings of fact arbitrary or capricious?
6. Has the agency followed the appropriate procedural requirements?
   A. Is the agency choice of procedure arbitrary or capricious?
   - Does Amendment V require a hearing or rulemaking?
   - Is there a common-law property right that requires procedural due process protection?
   - Is there a new property right that requires procedural due process protection?
   - Is there a lack of required notice?
   - Is the agency required by the APA to go through notice-and-comment rulemaking?
   - Is the agency required by statute to go through formal rulemaking?
   - Is the agency trying to replace a rule without proper rulemaking?
   - (See also agency arbitration, which is rarely used now)
   B. Does the agency choice of procedure violate administrative common law requirements?
   - Is there impermissible administrative retroactivity?
   - Is there administrative estoppel?
   - Does the agency base its decision on its own ground consistent with SEC v Chenery?
   - Is there impermissible administrative inconsistency?
   C. Is there impermissible administrative bias?
   - Is agency separation of powers required, and if so, violated here?
   D. Have any restrictions on agency ex parte contacts been violated?