Administrative Law - Prof. Stevenson

What is "agency capture"?

"Agency capture" is the term used when the President appoints a well-known industry insider to direct an agency that regulates the same industry (which is very common, due to that person's expertise and experience in the regulated industry). In some cases, this appointee proceeds to implement policies that are favorable to the industry the agency regulates rather than serving the public interest as a whole, as if the agency has been "captured" by the very industry it is supposed to regulate. Sometimes agency capture can thwart legislative policy objectives embodied in the agency's enabling statute.

132. What factors do courts consider when evaluating whether an agency can adjudicate claims involving public rights?

1. Specialized area of law. Agency adjudication is okay if it is limited to a narrow field of cases that relate closely to regulatory purview, as in Schor, instead of cutting across a whole gambit of common-law claims. 2. Preserves other aspects of judicial power. Like habeus corpus or holding jury trials, as agencies cannot do those things. 3. Option of choosing an Article III court for the private right involved. 4. Judicial review. Mandatory; on questions of law that are private rights (not regulatory violations), the reviewing court will have de novo review. 5. Enforcement by a regular court still necessary. Even if a party wins a private rights claim before an agency, the party must turn to regular courts to compel enforcement-the agency does not execute judgements itself. Commodity Futures Trading Commission (CTFC) v. Schor, 478 U.S. 833 1986.

4. What are the sources of administrative law?

1. U.S. constitution, especially the clauses delineating the powers reserved for each branch of the government, the Due Process Clauses of the Fifth and Fourteenth Amendments, and constitutional provisions relating to standing. 2. Generic statutes imposing guidelines on most administrative agencies, especially the Administrative Procedure Act (APA), but also the Freedom of Information Act, and so on. 3. Specific enabling statutes. Most Agencies have an "organic statute" that called the agency into existence and bestowed on it certain powers and responsibilities. 4. Administrative Common Law. Courts created some rules about the exercise of power by government officials; courts still reference these to explain provisions of the APA or to fill gaps in the statute. 5. Executive Orders issued by the President impose mandates on agencies, and sometimes create new agencies (similar to enabling statutes). 6. Internal Agency Policy Manuals and Directives. Agencies sometimes bind themselves by the provisions included in their published internal rules.

71. Congress enacts a new statute that provides for a new federal official who will investigate and prosecute unethical real estate mortgage practices. The statute specifies that the Supreme Court will appoint the Special Prosecutor, who must be a member of the Senate. The President can remove the prosecutor for good cause, but only with two thirds confirmation vote by the Senate. When the prosecutor's subpoena authority is challenged in court, what will be the outcome?

A court will find this arrangement unconstitutional for two reasons: first, because the appointee is a member of the senate, and second, because the Senate gets to participate in the removal of the official. Both of these are conditions the Supreme Court has found to be off limits.

19. Main Points of Administrative Law History

A few key points about the history of Administrative Law will be useful when you are analyzing issues on other substantive subjects: 1. The New Deal. FDR's reforms marked an explosion in the number of agencies and the scope of their jurisdiction, and initially met with strong judicial resistance. Many agencies were influenced by Progressive-era technocracy values (government by experts and specialists), the Depression-era failure of laissez-faire economics, and War-era nationalism. 2. Enactment of the APA in 1946 created uniform protocols for agency rulemaking and adjudication, which guaranteed judicial oversight of agency actions. Court decisions dating from the period before the APA's enactment are often treated with skepticism. 3. The deregulation movement from the 1970's through the 1990's centralized the President's control over agencies through the Office of Management and Budget (OMB). This movement also brought Congressional enactments like the Freedom of Information Act, the Paperwork Reduction Act, and so on.

42. Congress enacts a statute giving the Department of Housing and Urban Development, a federal agency, the authority to "oversee the national residential home mortgage market and preserve its stability and integrity". When the agency imposes stringent federal licensing and reporting requirements on all mortgage brokers, a professional association of brokers challenges the statute as too vague under the nondelegation doctrine. How will the Supreme Court decide whether this law contains the necessary "intelligible principle" to survive a nondelegation challenge?

A general delineation of some principle or policy goal is all that is needed to satisfy the intelligible principle test.

64. What is the legislative veto?

A legislative veto gave Congress the power to reject any agency action with a vote in the legislature, without going through the usual process of drafting and enacting a new statute and presenting it to the President for signing. These veto provisions were routinely included in agency enabling statutes. Sometimes legislative veto provisions allowed for veto of agency action by only one house of Congress, or even by a particular legislative committee. Congress used these for several decades, until the Supreme Court held they were unconstitutional in INS v. Chadha, 462 U.S. 919 (1983).

11. What happens if an agency acts outside the bounds of its "enabling statute"?

A reviewing court will invalidate an agency action-where an instance of rulemaking, enforcement, adjudication or soliciation of information-if an agency "exceeds its statutory authority" as delineated in the enabling statute. Older cases sometimes called this an ultra vires action, borrowing a term from corporate law.

96. Are independent agencies free from the President's control?

Actually "independence" does not always occur in reality. There are many instances of independent agencies acting in perfect lockstep with the President's wishes and policy goals, even as the administration battled dissenters within the ranks of the purely Executive Branch agencies. The high turnover among the leadership in the independent agencies means that most Presidents can gain effective control through appointments halfway through their four-year term in the White House.

32. Agency Functions: Adjudication

Adjudication within administrative agencies is one of the two most important functions of these entities, and this subject will consume a large portion of your administrative law course. Agencies adjudicate eligibility issues over public benefits (welfare, Medicaid, etc.), denials or revocations of licenses and permits, and sometimes initial enforcement proceedings of regulatory violations. For a few agencies, such as the National Labor Relations Board and the Social Security Administration, adjudication is their primary activity. Agency adjudications are reviewable in court.

1. What is administrative Law?

Administrative Law is the body of statutes, constitutional limitations, and judicial precedents governing the public bureaucracies and government agencies. It is the regulation of the regulators, whether executive agencies or independent agencies. Most of the law is procedural, focused on how government agencies may act instead of what policies the agencies pursue.

48. Nondelegation in the Lower Courts

Even though the Supreme Court has not invalidated a statute based on the nondelegation doctrine in seven decades, federal appellate courts and state supreme courts continue to do so from time to time.

136. A statute authorizes the Federal Communications Commission to impose penalties ranging from $500 to $50,000 for violations of "decency" requirements in public broadcasts. After a hearing, the agency imposes a $25,000 fine on WKRP for airing an obscene, almost universally offensive broadcast. Ignoring possible free speech issues, can the agency impose such fines in its own hearings, or must a regular district court impose the penalty?

Administrative agencies can impose civil penalties in their administrative adjudications, but if the defendant refuses to pay the penalty, the agency will have to go to court to seek execution on the judgement (taking money directly from the defendant's bank account or physically preventing future broadcasts). Also note that the agency has almost complete discretion in the penalty it imposes, as long as it fits within the statutory range. WKRP can seek judicial review of the agency's regulations, due process in the hearing, and merits of the agency adjudicator's findings, but usually not the agency's choice of remedy.

24. What is the role of administrative agencies?

Administrative agencies carry out government programs, usually established by Congress, but sometimes by executive order from the President.

28. Agency Functions: Distribution of Benefits

Administrative agencies distribute all the direct benefits that citizens receive from the government. These include welfare (financial assistance for the poor or unemployed); Social Security retirement benefits; Medicare and Medicaid; loans and grants for students, homebuyers, and small business owners; veterans' benefits; disaster relief/temporary housing; and so on. Most of these agencies also adjudicate disputes that arise with citizens pertaining to these benefits, usually over with recipient's eligibility for the benefits in question.

29. Agency Functions: Licenses and Permits

Administrative agencies issue permits and licenses for operating vehicles on public roads, practicing medicine, construction of power plants, logging, hunting and fishing, television, and radio broadcasting, operating airlines or flying planes, dumping industrial waste, and so on. These agencies often promulgate rules about eligibility requirements for the licenses and permits and procedures for applications and revocations. They process applications, issue revocations and adjudicate disputes with denied applicants or revoked licenses.

46.Nondelegation Doctrine: After the New Deal

After the famous "switch in time that saved Nine"-the Supreme Court's eventual capitulation to FDR's policy reforms-the Court embraced legislative delegations to administrative agencies in a series of decisions in the 1940's, Yakus v. U.S., 321 U.S. 414 1944. Which upheld a delegation to an agency to promulgate "fair and equitable" controls on consumer goods prices and rents. The Court had decided by that point that delegations to administrative agencies were a "practical necessity". In addition, the adoption by most agencies of rigorous internal procedural protocols and safeguards (some mandated by the APA, some designed to avoid nondelegation issues in litigation) made the courts more comfortable that vague enabling statutes were constitutional. The Supreme Court had steadfastly refused to repudiate the nondelegation doctrine outright, but it stopped using this as a basis for invalidating statutes after the Carter Coal case.

18. How can an agency's internal policy manual be a source of administrative law?

Agency personnell follow the official internal policy manuals very strictly. In some cases, courts have held an agency's internal policy manual to be binding on an agency judicially enforceable (Morton v. Ruiz, 415 U.S. 199 1974). The general rule, however, is that internal policy manuals are not judicially enforceable. (Schweiker v. Hansen, 450 U.S. 785, 789 1981). This is unlikely to be an important feature of your administrative law course, but some casebooks list internal manuals and directives as a source of law.

47. Nondelegation Doctrine: Under Other Names

Although the Supreme Court has not recently used the nondelegation doctrine as its stated basis for invaliding a statute, it sometimes appears to be achieving the same end without mentioning nondelegation. For example, in Hampton v. Sun Wong, 426 U.S. 88, 1976, the Court struck down a Civil Service Commission rule that barred aliens from federal jobs, faulting the agency's process of rulemaking, but admitting that the same rule would have been perfectly legitimate if Congress had passed the rule instead, implying that delegation of Congress's authority still has restraints. Courts also invalidate delegations to private parties based on the Due Process Clause, often without mentioning the nondelegation doctrine.

10. What is an "enabling statute" for purposes of administrative law?

An enabling statute specifically empowrs a given agency (for example, the Environmental Protection Agency or EPA) to take certin actions. The agency derives its power or authority to act from this statute. Sometimes these are called organic statutes, especially where the act creates an agency and bestows on it certain responsibilities and powers (like the Social Security Act, which created the Social Security Administration). Subsequent legislation can add additional responsibilities to the agency, as when the Toxic Substances Control Act gave new tasks and powers to the already-existent EPA. Such subsequent legislation is also an "enabling act" because the agency derives its authority for certain actions from this statute. Agencies cannot act beyond their statutory authorization, so many challenges to agency actions focus on the provisions of the enabling statute.

129. How does adjudication within administrative agencies raise a Separation of Powers problem?

Article III of the Constitution appears to vest judicial authority in the courts (usually called article III courts), and some constitutional scholars have argued that it violates this provision for executive agencies to adjudicate cases. Over time, however, the Supreme Court has permitted more adjudication within agencies (or by non-Article III courts). Originally, such approval was limited to three types of cases: public rights, territorial courts, and military courts.

122. What was the "spoils system" for federal bureaucracy?

Beginning with Andrew Jackson's administration (1828), a newly elected President would replace nearly every employee in the federal bureaucracy with Partisan appointees or those to whom the President owed political favors. Predictably, this led to the widespread corruption, incompetent personnel, and too much turnover in the government. In 1883, Congress repudiated the "spoils system" by enacting the Pendleton Act, which created the modern merit-based system for hiring and promotion of most agency personnel, competitive exams for hiring (later abolished in the 1980s), and generally forbids favoritism or punishment based on political party affiliation.

20. Why has there been such an explosion in the growth of the administrative state in the last 80 years?

Before the New Deal, there were only a handful of administrative agencies, the Interstate Commerce Commission, the Federal Trade Commission, the Veteran's Administration, and a few agencies devoted to the purity of food and water supplies. Starting with the New Deal, agencies multiplied rapidly to "catch up" to the complexities and size of the industrialized national economy, and to address the demands of special interest groups for certain government protections and guarantees. Even with the push toward "deregulation" that began in the 1970s, the size and scope of the federal government has continued to increase rather than decrease.

116. How did Executive Orders 12,291 and 12,866 affect administrative law?

Both of these orders raised significant obstacles for executive agencies in promulgating regulations, by requiring OMB approval before proposing rules in the Federal Register, and by mandating that regulations be justifiable in terms of costs and benefits. This allows the OMB (specifically, a division of the OMB called the Officer of Information and Regulatory Affairs, or OIRA) to act as a type of watchdog over the entire regulatory regime at the federal level-a regulator of regulators. The OMB works with the assumption that agencies always ask for too much and need to be kept in check; and agencies therefore can find the OMB intimidating.

54. What are the primary ways the legislature exercises influence or control over administrative agencies?

By far the most significant methods that the legislature uses to control agencies are through statutes and budget appropriations. Most agencies came into existence through legislation, and the legislature can abolish an agency in the same way, or change its assigned responsibilities or powers. Congress also holds the purse strings, and can reward or punish an agency through budget allocations. Congress also influences agencies through confirmation hearings of Presidential appointees, enacting limitations on Presidential removal of appointees, and summoning agency officials before Congressional committees and subcommittees.

60. How does Congress use committee hearings to exercise oversight of administrative agencies?

Committees or subcommittees of the legislature can call oversight hearings at any time to ask agency officials about current policies and programs. Many statutes specifically provide for periodic oversight hearings by these committees, such as 42 U.S.C. Sec. 9651 (h) (3) (periodic oversight hearings), but Congress can summon agency officials to committee hearings even without specific statutory authorization. Given the opportunity for the legislators to grandstand for political visibility, agency representatives expect to be "grilled" at these hearings.

97. Why does Congress create independent agencies?

Congress gives certain agencies independence to insulate them from Presidential control or to enhance Congress's control over that field or regulation. The greater question is why Congress does not designate all agencies as independent agencies. The general consensus is that the Supreme Court might find a Separation of Powers violation if the agency's functions were truly "executive" in constitutional terms and Congress tried to remove these executive functions from the Executive Branch.

31. Agency Functions: Enforcement

Congress or the President often entrust agencies with the responsibility of monitoring those to whom certain regulations apply, detecting violations, and commencing enforcement proceedings against violators. Usually violators first receive some kind of individualized order (a written accusation of violations to command to desist), demand letter; summons or other similar document. In some agencies, the initial proceedings against violators of regulations commence with adjudication within the agency, the results of which may be appealed in regular courts. Other agencies begin enforcement proceedings by referring violators to the Department of Justice to commence litigation.

120. A split arises in federal agencies over the proper form of contract to use when outsourcing tasks to private firms, and many agencies adopt an official stance on the matter. To provide more flexibility and encourage as much outsourcing as possible, President Shrubbery issues an executive order prohibiting federal agencies from either requiring of forbidding their contractors to use a particular form of labor contracts. Will the courts uphold this executive order if it is challenged in litigation?

Courts would uphold this executive order. In Building & Construction Trades Dept. AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), the Court of Appeals upheld President Bush's executive order along these same lines. The court emphasized that the President's "supervisory authority over the executive branch" and that the order applied "only to the extent permitted by law", which ameliorated any possible conflict with the National Labor Relations Act or other relevant statutes.

115. What are Executive Orders 12,291 and 12,866?

EO 12,291 and EO 12,866 are two of the most famous, if not most important executive orders of the modern era, and most administrative law casebooks either mention them specifically, or include large excerpts from the orders themselves or other academic and policy materials surrounding them. EO 12,291 (Reagan) required agencies to submit a "Regulatory Impact Assessment" (RIA) for any proposed regulations to the Office of Management and Budget (OMB), which scrutinizes the cost-benefit justification for any regulatory activity. EO 12,291 also imposed substantive requirements on agencies-to choose regulatory alternatives that imposed the least cost to society, and to eliminate any regulations that are not strictly necessary. EO 12,866 (Clinton) replaced EO 12, 291 but kept its procedural requirements (for cost-benefit justifications to go to the OMB before proposed rules are published), but 12,866 included new considerations like "equity", "distributive impacts", and so on.

118. Does EO 12,291 and EO 12,866 apply to independent agencies?

EO 12,291 formally excludes independent agencies from its reach (in Sec. 2) but agencies may voluntarily engage in the kind of review advocated by the OMB, even if there is no legal requirement to do so. The White House has sometimes "requested" that independent agencies comply with the "spirit" of EO's 12,291 and 12,866.

36. Nondelgation Doctrine: Historical Origins

Early cases (before the New Deal) held that the Constitution strictly prohibited Congress from delegating its legislative authority to the Executive Branch (administrative agencies). Courts did permit Congress to leave a lot of discretion to the Executive Branch in enforcement and implementation of the laws, and so on. As long as this discretion was for the executive function and not for actual rulemaking, the Court upheld the agency's authority. The President was allowed to "fill in the details" of Congress's mandates.

93. What distinguishes an officer, for purposes of an appointment or removal, from a mere employee within an agency?

Employees are civil service personnel and lower level officials who exercise little or no discretion or authority in fulfilling assigned duties within the government, subordinate to officers. They are neither principal officers nor inferior officers for purposes of Appointments Clause analysis. See reytag v. Commr. of Internal Revenue 501 U.S. 868 1991, where the Supreme Court held that "special trial judges" used by the Tax Court were "officers of the United State.

109. What is an "executive order"?

Executive Orders (EOs) are official, written mandates from the President to the executive agencies. There is no official definition of an executive order as opposed to a Presidential proclamation, directive, memorandum, and so on, except for the procedural requirements now followed for them. Usually an EO says "Executive Order" across the top and is numbered sequentially. Presidents also issue proclamations and other directives.

131. Why does it matter if an administrative adjudication is categorized over public rights or private rights?

Executive agencies and officials have been authorized-by statute and by the Constitution-to adjudicate "public rights" disputes throughout our country's history (the first Congress assigned some adjudicative powers to certain executive officers). Courts readily accept agency adjudication of public rights, but treat agency adjudication of private rights with suspicion and scrutiny. In general, the Supreme Court will allow agencies to adjudicate private rights only in cases that are ancillary to a public rights case (like a counterclaim in an agency action), and where there is judicial review, including de novo review of the question of law and questions of jurisdictional fact. Private rights claims adjudicated by agencies must also leave enforcement to the regular courts and not tread on any traditional court functions, like criminal law or holding jury trials.

16. How does an "executive order" work as a source of administrative law?

Executive orders are Presidential directives to the executive agencies containing specific operational guidelines. Two executive orders in particular come in almost every administrative law class, EO 12,291 (President Reagan) and EO 12,866 (President Clinton), which compel most agencies to submit proposed regulations to the Office of Management and Budget (OMB) for "regulatory review", along with a detailed cost-benefit analysis. Most executive orders are not judicially enforceable and create no private rights or cause of action. Some, however, implement statutory mandates from Congress, and courts have held these to be enforceable under the APA.

126. When a federal employee believes her supervisors wrongfully denied her a promotion or terminated her, what is her recourse?

Federal Civil Servants have numerous job protections, and an employee can appeal wrongful treatment to Merit Systems Protection Board (MSPB), which can hear both statutory and constitutional complaints. Decisions of the MSPB are appealable to the Federal Circuit Court of Appeals (not federal district court), and from there the Supreme Court.

124. What is the downside of the modern "merit-based" system for hiring and promoting agency staff?

Federal statutes limit the instances in which civil servants can face termination, giving them more job security than most private sector employees have. Too much job security can result in an entrenched workforce that is unmotivated, unproductive, and sometimes unresponsive to the new policy directives of the administration. Eliminating the problems associated with the old "spoils system" involved some tradeoffs, allowing some of the problems associated with the stereotype of entrenched bureaucracies.

2. Analyzing Administrative Law Problems in General

Here are some General Tips for any administrative law problem: 1. Think about the political questions or public policy goals involved in the agency's actions: Has the agency been "captured" by a special interest group or big corporate interests? Is the agency pursuing a valid, important public policy agenda? Is one branch of government enhancing its own power at the expense of others? 2. Ask yourself if the agency has the legal authority or power to take the actions in question, based on its "enabling" or "governing" statute. Regardless of the merits of an agency's agenda, it cannot undertake any activities except those authorized in its enabling statute. Address the relevant source of law on which you or the agency are relying: the constitution, the APA, a particular enabling statute, another general-applicability statute like the FOIA or NEPA, or even traditional common-law rules.

86. Congress creates an amnesty program for illegal aliens who came to the United States as children (brought without choice by their parents) who can demonstrate ten years of exemplary work experience in the United States and a clear criminal record. Administrative law judges within the Department of Labor adjudicate the claims initially, and those dissatisfied with the judges' decision can appeal to the Work History Certification Board, made up of five people appointed by the Secretary of Labor. The statute is silent about grounds for removal, and a newly appointed Secretary decides to remove (without cause) several Board members appointed by her predecessor. Can the removed Board members successfully challenge their removal in court?

If the statute is silent on the grounds for removal, courts presume that agency officials can be removed "at will" by the officer authorized to appoint the officials in question, as a matter of statutory construction and as a constitutional matter.

66. In the absence of legislative vetoes, what formal oversight measures does Congress have to control individual pending actions by agencies?

In 1996, Congress enacted a statute amending Ch. 8 of the Administrative Procedure Act to allow new agency rules to be rejected within 60 days by a resolution of both houses of Congress, presented to the President for signature. The rules do not become effective until the 60 days have passed. If Congress takes no action within 60 days, the proposed rules are presumptively approved and go into effect. Important statutory exceptions to this so-called report and wait requirement are internal agency rules and regulations of monetary policy from the Federal Reserve Board or the Federal Open Market Committee.

65. What is the significance of INS v. Chadha?

In INS v. Chadha, 462 U.S. 919 (1983), the House of Representative vetoed the Attorney General's decision to not deport an immigrant named Chadha; in other words, Congress tried to force the deportation of this individual. Chadha challenged the constitutionality of the legislative veto itself (a provision of the statute), which gave one house of Congress the power to override the Attorney General's decisions in individual immigration decisions. The Supreme Court held that the legislative veto violated the Bicameralism and Presentment Clauses in the U.S. Constitution, thereby invalidating hundreds of legislative veto provisions in different statutes. This case appears in most administrative law casebooks, but the bottom line is that legislative vetoes are dead.

61. What are the less formal ways for the legislature to control administrative agencies beside budget appropriations, statutory enactments, Senate confirmation hearings and committee hearings?

Members of the legislature (either house) regularly make inquiries of agencies on pending matters. They ask for status reports, file complaints regarding regulatory substance or procedure, and use similar investigatory measures.

49. What is the "Benzene" twist on the nondelegation doctrine?

In Industrial Union Dept. AFL-CIO v. American Petroleum Institute (The Benzene Cases) 448 U.S. 607 1980, the Supreme Court suddenly used the nondelegation doctrine as an interpretive canon for construing statutes rather than as a constitutional condition of validity. The regulated industry challenged an onerously strict regulation by the Occupation Safety and Health Administration (OSHA) about airborne Benzene, saying that OSHA's rule was unsupported by evidence. The Court cited the nondelegation doctrine as its basis for reading into the statute a "significant risk" threshold to avoid invalidating the statute. The court had taken a similar approach in an earlier, lesser known case but this modern "interpretive" version of nondelegation is usually attributed to the Benzene cases. NOTE: Justice Renquist's dissenting opinion is probably the most famous part of the Benzene cases, because he called for the revival of a more robust version of the nondelegation doctrine, and would have invalidated the statute under consideration.

34. What is the "nondelegation doctrine"?

In a nutshell, the nondelegtion doctrine (sometimes called the "delegation doctrine"-the terms are used interchangeably by courts) says that the three branches of government cannot delegate their constitutionally assigned powers to others-including the other branches of government. This idea comes from the Vesting Clauses in the Constitution that created the Separation of Powers.

25. Where do administrative agencies fit within the government structure?

In general, most agencies are within the department of the Executive Branch. They work under the President or his cabinet members (or in the states, under the Governor). Some agencies, however, are "independent agencies", which are not necessarily within any department of the federal government under the direct supervision of the President or his cabinet. Usually Congress states explicitly in the enabling statute that an agency is "independent", but not always, in which case we look at a variety of factors, such as limitations on the President's power to remove appointees, leadership by a board of commissioners rather than a single administrator, mandatory bipartisan membership of the board of commissioners, and so on.

23. Current Historical Developments in Administrative Law

In terms of significant legal developments or trends, students should be aware of a few recurring themes from the late 1990's to the present: 1. Federal agency preemption of state tort law. An increasing number of courts- and federal agencies-are adopting the view that the existence of regulations by a federal agency (such as national automobile safety requirements or labeling requirements) should preempt state tort claims based on product design, and so on. 2. Privatization of government services. During the Clinton and Bush administrations, there was a widespread push toward outsourcing administrative agency work to private-sector contractors. There are now privately owned prisons, schools, motor vehicle departments, welfare offices, and so on. 3. Standing to sue. In the last decade or so, there have been a series of landmark court decisions regarding parties' standing to sue administrative agencies. This subject typically constitutes an entire unit in administrative law courses. Many professors will supplement the casebook with a handout version of the latest Supreme Court or circuit Court decision on standing.

35. How does the Separation of Powers doctrine relate to administrative law?

In theory, each of the three branches of government has distinct, separate functions and no branch should infringe on the assigned domain of the others. Congress, however, delegates its rulemaking authority to Executive Branch administrative agencies, and also permits them to engage in adjudication without certain limits. Even when Congress keeps an agency "independent" from the Executive Branch, the agency engages in executive functions like enforcement. Thus, administrative agencies blur the lines between the three branches of government by engaging in the functions constitutionally assigned to the executive, legislature and judiciary.

95. What is an "independent agency"?

Independent agencies are special regulatory bodies that Congress has insulated from some of the Presidential controls that apply to normal Executive Branch agencies. Usually the governing statute specifically designates the agency as "independent" but not always. The functional limitations that the statutes place on Presidential control are more important-such as limitations on the removal of agency appointees, power sharing by a group of leaders, and terms that last longer than a four-year presidential term.

91. What are inferior officers, for purposes of administrative law?

Inferior officers are lower level officials in the Executive Branch, under the supervision of the President's appointees. In Morrison v. Olsen, the Court held that an independent counsel is an inferior officer. He was appointed by a special panel of the U.S. Court of Appeals to investigate wrongdoing by Executive Branch officials and could be removed by the Attorney General for cause, but was not otherwise under the supervision of the Attorney General or anyone else. The Court relied on the limited scope and duration of the independent counsel's appointment and the Attorney General's removal power to find that he was not a principal officer.

45. Richard Lionheart is a major shareholder in his deceased brother's coal company, Nottingham Coal. Congress passes a law requiring coal producers to elect Coal Boards from among their ranks, and give these Boards power to set minimum prices for coal in their area. Lionheart believes the political bosses are rigging the elections and gaining control of these Coal Boards, and he sues to prevent his brother's company from participating. When the shady members of the Coal board decide to take retaliatory actions against Richard, he appeals to the Supreme Court. Will this statute survive a challenge on nondelegation grounds?

It did not survive during the New Deal, see Carter v. Carter Coal Co. 298 U.S. 238 1936. On facts similar to these, the Supreme Court held that the statute did not include the "means" for achieving Congress's objectives, or even what results should be pursued beyond vague policy goals (the Courts have since adopted a more lenient approach). In Carter, the Court was especially concerned that the statute delegated legislative authority to private parties- the court called this "delegation in its most obnoxious form." This latter concern (delegation of authority to nongovernmental parties) continues to divide courts today, even though this is treated less than a Separation of Powers issue than a due process issue.

114. Do executive orders apply to independent agencies?

Most Presidents will not try to subject independent agencies to the same controls that they do regular executive agencies. Independent agencies generally are immune from substantive policy requirements of executive orders. Considering the FTC, SEC and EPA are all independent agencies and have a major impact on the economy, this is a significant exception.

3. Analyzing Supreme Court Opinions: Majority vs. Dissent

Most Supreme Court decisions adressing administrative law seem split along partisan lines. The background issue in each case is usually a policy agenda of one of the main political parties (whoever occupied the White House at the time), so underlying political ideologies tend to overshadow the technical procedural rules on which the Court must rule in the case. This makes for the chronic inconsistencies in the Court's approach to some pedantic procedural questions, as the Justices may switch sides on a technical procedure when a different Administration's executive programs are at issue. For this reason, it is unusually important to read the dissenting and concurring opinions in your casebook (compared to some other courses), because the majority opinion in one case often adopts points made in a dissenting opinion in a previous case.

27. What are the main functions of administrative agencies?

Most administrative agencies, besides those focused on internal government regulation and national defense, carry out two or more following activities: 1. Distribution of benefits (welfare, Medicaid, Social Security benefits, student loans, etc.) 2. Granting licenses and permits. 3. Making policy through promulgation of regulations. 4. Enforcement and adjudication. 5. Gathering, analyzing, and reporting data (the census, industry reports, public safety threats, etc.)

33. Agency Functions: Data Gathering and Reporting

Most agencies collect enormous amounts of data, analyze it, and either report their findings publicly or use this information in formulating technical regulations. For some agencies, like the U.S. Census Bureau and the Centers for Disease Control, information gathering and dissemination is their primary function. The Data Quality Act, discussed at least in passing in most administrative law courses, focuses on ensuring the reliability of the information that agencies disseminate to the public. Agencies can compel the submission of necessary information from private parties (firms or individuals) as part of their information gathering. The Paperwork Reduction Act (also discussed briefly in most courses) imposes some limits on the amount of information agencies can demand from private parties.

121. How do the federal agencies, with over 3 million employees, manage their bureaucratic personnel?

Most agency personnel are part of the civil service, a merit-based, hierarchical, career-oriented work-force. Since 1978, with the passage of the Civil Service Reform Act, three federal entities oversee the administration of civil service. These are the Office of Personnel Management, the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority. The system prohibits favoring or disfavoring workers based on their political affiliation. Agency heads are usually political appointees, though.

52. Congress passes a Penal Reform Act, which establishes the Draconian Commission, a panel of federal judges responsible for promulgating mandatory sentences for every federal crime. Mr. Etta challenges the Draconian Commission's constitutional authority after he receives a severe sentence under the Commission's official guidelines. Does the Draconian Commission conflict with the nondelegation doctrine?

Most of the Supreme Court held that the Federal Sentencing Commission was perfectly constitutional in Mistretta v. U.S., 488, U.S. 361, 1989. The Court found the Act's specified purposes and goals, along with delineation of factors for the commission to consider, constituted a sufficient intelligible principle. Justice Scalia wrote a lone dissent insisting that the Commission functioned as a mini-legislature and violated the nondelegation doctrine.

123. How is the modern civil service system "merit-based"?

Most of the workers within federal agencies are part of the civil service, and their employment falls under the provisions of the Civil Service Reform Act and related statutes governing federal employees. Classification of agency positions follows a hierarchical grade system (GS), with pay level and other prerequisites increasing as one moves tom higher GS levels. Hiring and promotion depends on education, experience and seniority, and firing is limited to cases where supervisors can show "good cause" as defined In the statutes and regulations. This provides agency personnel with job security and shields them from partisan-based treatment, and brings stability to the agencies.

74. Congress enacts a statute saying that the President may not remove the Administrator of the Coffee Regulatory Commission (CRC) "except for good cause and with the advice and consent of the Senate," thereby subjecting removals or firings to Senate approval. Would a court permit the Senate to participate in the removal of a CRC Administrator under this statute?

No, because Congress cannot participate in the actual removal process except in cases of impeachment under the Constitution, Art. I, Sec 2., Cl. 5. and Art. I, Sec 3. Cl. 6. The Supreme court ruled in Myers v. U.S., 272 U.S. 52 1926, that a statute conditioning the removal of a postmaster on the Senate's "advice and consent" was invalid.

106. Edmond is subject to court martial from the Coast Guard due to an inappropriate relationship with a woman in Narnia and lying to his supervisors about it. Peter, Lucy and Susan comprise a tribunal, the Coast Guard Court of the Stone Table. Edmond challenges the tribunal's authority because the President, despite the fact they serve indefinite terms and pass judgment on a large number of appeals from different Coast Guard defendants, did not appoint these officials. Peter, Lucy and Susan are under the direct supervision of Aslan, the Judge Advocate General, who can remove them at will. Can Edmond successfully challenge these appointments, and thereby their ruling in his case?

No, because their subordinate role to Aslan indicates that they are inferior officers, meaning Congress have them appointed by officials besides the President. These facts (and even the character name, of course) are based on Edmond v. U.S. 520 U.S. 651 1977, discussed in many administrative law casebooks, at least in the note cases.

40. In response to repeated incidents of piracy by the Axis of Evil against American commercial ships, Congress imposes a sweeping trade embargo against the Axis of Evil, with a provision that the President can lift the embargo once the pirates begin to behave more appropriately and leave American ships alone. Would this delegation of discretion to the President (to decide when to lift the embargo) violate the nondelegation doctrine?

No, not under any version of the doctrine (strict or lenient). This type of discretion to "fill the details" in carrying out Congressional mandates was always permissible for Congress to delegate to the President. The facts presented here are similar to the case Brig Aurora, 11 U.S. 382, 1813. Where the Supreme Court upheld such a delegation to lift embargoes against the European nations.

125. When a new President takes office, may he purge the federal agencies in the Executive Branch of all employees affiliated with the opposing political party, replacing them with workers who share the President's political views?

No. A series of federal statutes, starting with the Pendleton Act in 1883 and modernized by the Civil Service Reform Act of 1978, protect most administrative personnel from losing their jobs over political affiliation. Hiring and promotions are supposed to be merit-based in the civil service, and terminations must comply with narrow statutory criteria (workplace misconduct etc.), giving federal workers significant job security. Note that we are not talking about agency directors or principal officers whom the president can normally replace at will.

7. The President wants to elicit information from some political opponents who are U.S. Citizens. He asks the CIA to use torture, if necessary, to obtain confessions from these individuals and to convict them of treason without a trial if they still refuse to cooperate. He reasons that the CIA is an independent agency, and therefore is not bound by the same constitutional strictures that the Bill of Rights imposes on the Executive Branch. Is he correct?

No. Constitutional due process requirements apply to government agencies, including independent agencies.

107. President Persephone cannot get the Senate to confirm any of her appointees to an important independent regulatory agency. When the opposing party controls the Senate in her first term, they vote down every nominee, and even when Persephone's party regains control of the Senate by a narrow margin, the opposing party uses filibusters to delay the confirmations indefinitely. President Persephone then makes temporary recess appointments on New Years' Day, when she knows everyone from the Senate is at home sleeping off their hangovers; Senate Business resumes the next week. Under the Constitution, recess appointments can serve until the end of the next Congressional session, which allows the agency to function. Are these recess appointments valid?

No. In Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 2013), the Circuit Court held that "recess" for purposes of constitutional recess appointments refers only to the period between annual Congressional sessions, and not to holiday breaks during the session.

67. Can members of Congress simultaneously serve as directors of administrative agencies?

No. It would violate both the Incompatibility Clause (Art. I Sec. 6, Cl. 2) of the Constitution, as well as the Separation of Powers doctrine.

108. Tom Sawyer applies to the U.S. Small Business Administration (SBA) for an emergency loan, but the SBA denies the application. Sawyer learns that the denial came from Sid, a case worker recently assigned to determine whether incoming loan applications meet the requisite "emergency" criteria for the loan program. The SBA Administrator, Thatcher, does not participate in these threshold eligibility determinations. Can Sawyer challenge his denial on the basis that the SBA hired Sid in violation of the Appointments Clause?

No. The Appointments Clause applies only to "officers of the United States". Sid appears to be a low-level employee with very limited authority or responsibility.

68. Can Congress participate in the firing or routine removal of administrative officials?

No. The Constitution permits Congress to commence impeachment proceedings against officials under extreme circumstances, but otherwise Congress can not participate in removal of individual administrative officers, as through confirmation hearings, and so on. Congress can enact general statutory limitations on the President's ability to remove officials, such as provisions that allow remove only "for malfeasance, incapacity, neglect of duty, or other good cause".

57. President Lisa Simpson appoints her former bus driver, Otto, to be Commissioner of the Food and Drug Administration. The House of Representatives holds lengthy confirmation hearings and ultimately votes against confirming Otto to oversee the agency that helps regulate controlled substances. Does President Simpson need to start searching for a new prospective appointee?

No. The House of Representatives does not participate in confirmation hearings for Presidential appointees. The constitution assigns this role to the Senate in the Appointments Clause of the U.S. Constitution (Art. II, Sec. 2, Cl. 2 which says the President appoints officers with the advice and consent of the Senate").

69. Senator Rasputin is a close friend of the President's family and has great influence with members of the President's cabinet. The President appoints Rasputin to be Acting Secretary of State while the previously appointed Secretary of State recovers from a mysterious illness. Can Rasputin keep his Senate seat while acting as Secretary of State?

No. The Incompatibility Clause (Art. I Sec. 6 Cl. 2) of the Constitution prohibits members of Congress from holding executive branch positions. This would also probably violate the Separation of Powers doctrine.

127. Michael Weston used to be a civil servant with a federal intelligence agency. Then he received his "burn notice", terminating his employment because he voted for a third-party candidate in a recent election, and because his excellent work makes other employees look bad. May his agency burn him for these reasons?

No. The Office of Personnel Management handles merit-based hiring and promotions for civils servants, and political targeting of employees is illegal-as are terminations that do not promote the efficiency or efficacy of the agency, such as firing an illustrious worker out of jealousy. Michael Weston can appeal to the Merit System Protections Board, and from there to the Federal circuit Court of Appeals.

70. Congress passes a law creating a Metropolitan Washington Golf Course Authority (MWGCA) to administer the legislators' favorite gold courses. The law includes a provision creating a Review Board, which has absolute veto power over any decisions of the MWGCA. The review board is incorporated under laws of both Virginia and the District of Columbia, made up of members of Congress. Is this arrangement Constitutional?

No. The Supreme Court reviewed a very similar arrangement to that described here in the case Metropolitan Washington Airport Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 1991. The Court held that the review board was exercising legislative authority at the behest of Congress, without complying with constitutional requirements for bicameralism and presentment of legislation to the President. Note, however, that this particular arrangement did not violate the Incompatibility Clause because the Review Board was technically municipial, not federal.

41. Frustrated by unequal trade arrangements with other countries and the tendency of other nations to subsidize their own industries' products with taxpayer revenues, Congress authorizes the President to impose tariffs whenever the President deems it prudent and necessary to do so. Would this conferral of authority violate the nondelegation doctrine?

No. The Supreme Court upheld this very type of delegation in Field v. Clarke, 143 U.S. 649 1892, one of the early nondelegation cases. The Court held that this delegation of discretion was still a discretion inherent in the executive power; that is, the execution of the laws that Congress enacts.

72. Congress creates a Federal Campaign Ethic Commission to hold politicians accountable when they run for office. In an attempt to be bipartisan and make this Commission supremely independent from either political party, the statute stipulates that the Speaker of the House appoint two commissioners, the President Pro Tempore of the Senate appoint two commissioners, and the President of the United States appoint two additional commissioners. Each of these pairs of appointments must have one person from each of the two major political parties. The Commission's primary task is its enforcement responsibility. Will a court uphold this statutory arrangement?

No. These are very similar facts to Buckley v. Valeo, 424 U.S. 1 (1976), where the Supreme Court invalidated the statute creating the Federal Elections Commission. The Court held that this arrangement violated the appointments clause of the U.S. Constitution, Art. II, Sec. 2. Cl 2.

87. The President discovers that his Postmaster General has met privately with Kramer, a citizen activist who has been leading a campaign against Waste by the Postal Service, and the Postmaster General threatened and intimidated Kramer to induce him to abandon his crusade. The President summarily fires the Postmaster General. The relevant statute says that the President can remove postmasters "only with the advice and consent of the Senate", which the President did not obtain. Will the court reinstate the Postmaster General when he litigates over his termination?

No. These facts are similar to Myers v. 272 U.S. 52 1926, where the Supreme Court held that the Constitution's silence on the Senate participating in removals of executive officials (notwithstanding formal impeachment) indicated that the President must have the power to removal officials without the Senate's consent.

134. Which is more likely to be created purely by legislation: private rights or public rights?

Public rights are more likely to be the creation of statute, such as licenses, permits, government benefits, and so on. Private rights, which are more often a matter of state law, have their origin in common-law doctrines of property, torts and contract.

83. From a legal standpoint, what is the significance of agency capture?

One example of the legal significance of agency capture is that courts consider it as a factor in applying other administrative laws, such as the Noerr-Pendleton doctrine in antitrust cases (named after two leading cases, this rule holds that collaborative effort by industry competitors to influence public officials does not violate antitrust laws). Courts have carved out an exception to this doctrine in cases where agency capture is present.

6. Which parts of the Constitution are most relevant for administrative law?

Only a few sections of the U.S. Constitution are likely to come up in your administrative law course: -The Vesting Clauses in Article I and Article II, which vest certain powers in the legislative and executive branches, respectively. These clauses arise in cases addressing the Separation of Powers as each branch tries to gain greater control over the agencies, and in "Nondelegation" cases, where the Legislature is accused of giving away its authority to freely; -The Appointments Clause, Art. II Sec. 2, cl. 2, which controls the President's power to appoint and remove heads of administrative agencies; -The Due Process Clauses of the Fifth and Fourteenth Amendments; -Article III's provisions authorizing and limiting judicial review, and its relationship with Administrative Law Judges; -Eleventh Amendment issues regarding liability or immunity for state and local government officials; -(Less likely) Seventh Amendment guarantees of the right to a jury trial.

90. How do we know if a particular government official is a principal officer?

Principal officers are high-level officials in the Executive Branch and heads of independent agencies. For example, cabinet members and commissioners of independent agencies are principal officers because there is no one in the governmental hierarchy between them and the President. There is not much case law to date about whether particular officials are inferior or principal officers.

51. Jackie Paper brings a legal challenge to the statutory authority of the Attorney General, Puff the Dragon, to select drugs for the list of controlled substances, which results in criminal liability for sale or manufacture of the drug. Paper admits that the statute provides an "intelligible principle" from Congress to guide the Attorney General, but contends that a stricter test is necessary when criminal liability is involved. Is he correct?

Probably not. This was the argument made in Touby v. U.S. 500 U.S. 160, 1991. But the Supreme Court declined to create a separate rule for criminal regulations, and held that even if a stricter test were appropriate, the delegation in Touby would still have been legal.

100. What difference does it make if an agency is independent for analyzing administrative law issues?

Probably, the most important difference is the fact that the President cannot remove heads of independent agencies "at will", as he can the heads of purely executive agencies-normally he must show cause. In addition, certain executive controls through the Officer of Management and Budget (OMB), like compliance with the Paperwork Reduction Act or certain executive orders, might not apply to independent agencies.

110 and 111. What is the procedure for issuing an executive order?

Procedures were established during Franklin D. Roosevelt's administration for issuing executive orders: 1. The content of the order may originate with the President, his cabinet, or within one of the agencies. 2. The proposed executive order is submitted to the Office of Management and Budget (OMB) for regulatory review, to check for conflicts with existing laws or regulations, etc. 3. The proposed executive order then goes to the Department of Justice, where an Assistant Attorney General is assigned to review its legality, constitutionality, etc. 4. The President signs the order. 5. The executive order is published in the Federal Register.

30. Agency Functions: Rulemaking

Rulemaking is one of the two functions of administrative agencies (the other being adjudication) that will consume most of your administrative law course. This is an essentially legislative function delegated to the agencies by Congress. These agency-created rules are generally called "regulations", as opposed to "statutes", which are enacted by the legislature itself. Regulations, however, have the force of law (they are just as binding on the citizenry as statutes), and most are codified in the United States Code of Federal Regulations (C.F.R.). Usually Congress will give the agency some vague mandates to regulate a particular area to achieve certain overarching policy goals. It leaves it to the agency itself to decide the details.

128. Cersei Lannister was next in line for a promotion at her federal agency job, where she works as a policy analysis. She has accrued enough years of seniority for the next GS level, and her work product is always superior. Nevertheless, her supervisor disapproves of Cersei's relationship with her boyfriend, and gives the promotion to a lackluster fellow who started three weeks ago. What should Cersei do?

She should appeal to the Merit System Protection Board, and from there the Federal Circuit Court of Appeals. The Office of Personnel Management handles hiring and employee regulations for the federal civil service but aggrieved workers can request a hearing before an ALJ at the MSPB.

112. Is an executive order enforceable in court if an agency or official ignores the order?

Sometimes, but usually not. Most EOs state that they create no private rights or cause of action. This means they are not judicially reviewable or enforceable by courts. It is important to remember, however, that most EOs address only internal operational guidelines for the agencies, and are little different than an internal office memorandum circulated within a corporation. Important exception: Courts have found executive orders to be judicially enforceable where they implement a statutory mandate from Congress that apparently created a right or cause of action-review is available in this case under the APA. Note that this can occur even when the EO contains the disclaimer language already mentioned. There is also a middle ground: Some EOs purport that they are not enforceable by courts, but they explicitly allow for "analytic documents prepared pursuant to this order to be part of the record on judicial review of the rule to which they pertain.

92. How are regular agency employees different than principal officers and inferior officers?

Subordinate agency employees are neither principal nor inferior officers. This means they can be appointed by procedures outside those prescribed in the Appointments Clause. Normally, they follow the civil service appointments process. "Employees" supposedly exercise no discretion or authority to administer federal law. Courts consider officials who exercise authority or discretion to be officers, not employees. For example, in Freytag v. Commr. of Internal Revenue 501 U.S. 868 1991, the Supreme Court held that "special trial judges" used by the Tax Court were "officers of the United States," because these special judges exercised discretion and authority in presiding over cases, even though their decisions were merely recommendations to the Tax Court, not final decisions. In Contrast, in Landry v. FDIC 304 F.3d 1125 (D.C. Cir. 2000), the court held that administrative law judges who could only recommend agency action were employees not officers.

22. How did the enactment of the Administrative Procedure Act change the administrative state and the judiciary's response to agency actions?

The Administrative Procedure Act (APA) assumed and enhanced judicial review of agency actions, assuring the courts a major role in keeping agencies within their statutory jurisdiction, preventing agencies from making arbitrary decisions or abusing their discretion, and compelling agencies to observe due process safeguards in their adjudications. In addition, the APA created uniform, time-consuming procedures for agencies promulgating regulations and adjudicating claims, which improved the final regulatory "product" and made the processes more transparent, democratic, and fair. Finally, appeals based on technical violations of the APA's mandatory procedures created more opportunities for judicial oversight of agency activities in general.

88. What is the difference between a "principal officer" and an "inferior officer" for purposes of administrative law?

The Appointments Clause distinguishes between officers of the United States who must be appointed by the President, with the advice and consent of the Senate, and inferior officers, who may be appointed pursuant to the alternative procedures specified in the clause. To distinguish them from inferior officers, those who must be appointed by the President are called principal or superior officers. There is no clear substantive line between principal and inferior officers.

80. Suppose the President wants to force an administrative agency to consider the overall economic costs of proposed regulations, even when Congress did not require this. What is the most effective legal tool in achieving this goal?

The President can require the agency to submit a cost-benefit analysis of the proposed regulation to the Office of Management and Budget before publishing it in the Federal Register.

81. Each of the branches of government exercises some controls over the activities and policies of the administrative agencies. What is the main way that the President of the United States controls agencies such as the EPA?

The President appoints the Administrator and regional directors.

117. How did Executive Orders 12,291 and 12,866 enhance the President's control over administrative agencies?

The President appoints the Director and Deputy Director of the Office of Management and Budget (OMB), and they tend to work very closely with the White House (more so than other agency heads) in implementing the President's policy goals and regulatory preferences. The President can tell the OMB to grant a particular agency a "waiver" from having to submit a Regulatory Impact Assessment for its proposed rules; it can also reject the cost-benefit analysis of an agency for its proposed rules, or can delay the review significantly. Clinton's EO 12,866 explicitly puts the White House in charge of the regulatory process and makes the President or Vice President the referee in disputes between agencies and the OMB/OIRA.

77. What are the primary ways in which the President exercises control over administrative agencies?

The President exercises oversight and control of government agencies in several ways. The two means contemplated explicitly by the U.S. Constitution are the President's power to appoint and remove agency directors, and the power to issue directives and executive orders, which are essentially binding on the agencies, regarding the implementation of legislative mandates (under the "Take Care" Clause in Art. II, Sec. 3, Cl. 4). Historically, the President has also controlled the internal organization of agencies, reviewed their budget proposals before they go to Congress and required coordination with other agencies (especially the OMB). The Attorney General, who works under the President, controls the litigation for most agencies (and thus the enforcement of most federal laws). Note: Less formally, the President often holds press conferences announcing policy decisions, which agencies generally feel obligated to follow.

62. Are there limits on Congressional oversight devices like committee hearings and investigations?

The Supreme Court has not addressed this issue, but some lower courts have imposed very basic ground rules for individualized meddling by legislators in an agency's activities. In Pillsbury Co. v. FTC, 354 F.2d 952, 964 (5th Cir. 1966), the Court held that Congressional investigations should not focus "directly and substantially on the mental decisional processes of a Commission in a case pending before it." In other words, Congress has a right to inquire about all of the agency's programs and policies, but it should not interfere with individual agency adjudications.

5. How is the Constitution a source of Administrative law?

The U.S. Constitution primarily governs the actions of the government itself, and therefore is both the power or authority excercised by agencies, and the source of the ultimate limitations on what agencies can do and even what type of agencies can exist.

15. Suppose Congress passes a new statute called the Clean Dirt Act, authorizing the Clean Dirt Administration (CDA) to "take whatever actions are necessary to preserve and maintain the health and cleanliness of our precious loam". The CDA is much more concerned about the threat of bioterrorism and homemade bombs, so it exercises its authority under the Act to restrict sales of fertilizers, like those used in the Oklahoma City bombing. The CDA attaches some regulatory rhetoric about this being necessary to protect the soils from fertilizers. When the fertilizer industry challenges the regulations in court, what would be its strongest legal argument, based on these facts?

The agency exceeded its statutory authority, based on the facts here. If the industry convinces the court that the CDA has acted beyond the scope of its enabling statute, even to a small extent, it will be fatal to the agency's proposed actions.

101. If an agency's head is a single director or secretary, rather than a collegial board, is it more likely to be an independent agency or a regular executive agency?

The agency is more likely to be an executive agency or department rather than an independent agency. Most independent agencies (but not all) are led by a board or commission. There is, of course usually a chairman of the board or commission designated by the President.

14. The General Services Administration (GSA) decides to generate some goodwill in the community by allowing local clubs to meet in its regional office conference rooms on the weekends. A particularly controversial club requests the use of a meeting room, and the GSA denies the request, as retaliation for an antigovernment symposium the club sponsored the previous year, in which the club had harshly criticized the GSA. The GSA's denial letter explained that the club's adversarial relationship with the agency meant that using GSA facilities would send a misleading signal to the community that GSA officials had conceded to the club's contrary positions. Furious, the club files a lawsuit, claiming viewpoint discrimination, free speech violations, and so on. What legal argument from administrative law might help the club challenge the GSA's actions?

The agency probably exceeded its statutory authority in allowing anyone to use its facilities on the weekends. It is unlikely that the GSA's enabling statute authorizes it to provide free access for community groups to use government office space on weekends.

76. Cheap Skate becomes the Comptroller General, and finds that his statutory duties deciding what the federal budget will be for the coming year, a decision the President of the United States is required by law to enforce. Cheap Skate does not have to worry about annoying the President, however, because the statute gives the Senate the power to remove the Comptroller General. When litigants challenge this statutory provision in court, what will the court do about Cheap Skate's position?

The court will invalidate this statute, as the Supreme Court did in Bowsher v. Synar, 478 U.S. 714, 1986. The sticking point for the court was the Senate's removal power over an executive official who appears to have substantial executive authority (can compel the President to act). Note, however, that the Comptroller General's position still exists and he is still removable by Congress, 31 U.S.C. Sec. 703 (e), because no executive duties (like those described here) remain for this official.

140. A bankruptcy court asserts ancillary or pendent jurisdiction over a state court claim against the bankrupt corporation, based on fraudulent transfers the corporation purportedly made. Normally the corporation would be entitled to a jury trial on a fraud claim, and it asserts is right to a jury trial in this case. The bankruptcy court ignores this request and proceeds to adjudicate the fraud claim, ruling against the corporation to increase the amount of money that will be available for the corporations' creditors. When the corporation challenges this ruling in district court, what will be the result?

The court will overturn the bankruptcy court's ruling on the fraud claim and allow the corporation to have it tried before a jury in a regular court. These are the facts of the famous case, Granfinanciera SA v. Nordberg, 492 U.S. 33 (1989), where the Supreme Court held the scheme to be unconstitutional because it violated corporation's Seventh Amendment right to a jury trial.

119. Wild Bill Hickok becomes President and issues an executive order prohibiting any federal agencies from contracting with companies (for outsourcing purposes) that hire permanent replacement workers who go on strike. The National Labor Relations Act has a provision that seems to contradict this approach, permitting firms to hire permanent replacements under certain circumstances. When the government contractors challenge the executive order in court, what will be the result?

The court will probably invalidate the executive order. In Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996), the D.C. Circuit Court invalidated an executive order from President Clinton with this same provision, holding that it was contrary to the law (the National Labor Relations Act).

73. Congress enacts a statute saying that the President may not remove or fire lower level attorneys within the Department of Justice (Assistant U.S. Attorneys) "except for when the individual has become physically or mentally incapacitated and cannot fulfill the duties of the position, or is convicted of a felony, or other good cause". When the President terminates some of these Assistant U.S. attorneys and litigation results, how will the court rule on the constitutionality of this provision?

The court will probably uphold the provision as Congress is usually permitted to impose reasonable, objective parameters on the removal powers of inferior officers and independent agency officials. See U.S. v. Hilario, 218 F.3d 19 (1st Cir. 2000), holding that U.S. attorneys are inferior officers and Congress can entrust their appointment to the President, a department head, or the courts of law, without requiring Senate confirmation.

102. Speed Racer challenges a new statutory provision whereby Congress created bipartisan commission to regulate the automobile manufacturing industry. Congress included in the governing statute a provision requiring that nearly half of the commissioners be members of each of the two main political parties. How will the court rule?

The court will uphold the provision, as long as the President has the power to appoint these commissioners and remove them for good cause.

103. Congress decides to create an independent agency to regulate the content of video games. The sponsors of the bill want the agency to have commissioners whose terms are staggered and last longer than four years, to make it nearly impossible for a President to have the opportunity to replace the entire commission during one term in office. When litigants challenge the validity of this provision in court, how will the court rule?

The court will uphold this provision, as long as the President has the power to appoint these commissioners and to remove them for good cause.

26. What are the typical purposes of administrative agencies?

The following are typical purposes of administrative agencies: 1. Development of the nation's infrastructure and economy. 2. Social welfare (care of the poor, disabled, elderly, unemployed, children) 3. Regulation of private transactions (sale and trade of stocks or other securities, importation duties and tariffs, prevention of business monopolies and unfair trade practices, etc.). 4. Public health and public safety (food purity, manufacture and disposal of hazardous substances, labeling of consumer goods, testing and approval of pharmaceuticals, etc.) 5. Internal government management (General Services Administration, Council on Environmental Quality, etc.). 6. Defense Industry

38. How did the introduction of the intelligible principle test change the analysis for the nondelegation cases?

The intelligible principle test appears on the surface to be a much looser test than earlier formulations of the nondelegation doctrine, as it allows agencies to do more than merely "fill in the details" or mechanically carry out Congressional specifications. Note, however, that even before the intelligible principle test was adopted, the Supreme Court had upheld virtually every delegation it had encountered, even while espousing a rule with a stricter formulation. In practice, it does not seem that the intelligible principle test changed the outcome of the cases very much-delegations were almost always upheld before and after the test was adopted.

13. Analyzing Ultra vire Problems

The phrase ultra vires is falling into disuse in the administrative law context, and some professors do not use it all. The more common phrase used in modern cases is "exceeded its statutory authority" (for an agency) or "exceeded the scope of his duties at the agency" (for an individual) instead of ultra vires, and it avoids possible confusion between the two distinct meanings.

8. What are the "generic statutes" for the purposes of administrative law?

The so-called generic statutes impose procedural requirements or other obligations on all federal agencies unless they have a statutory exemption from the act. The most important is the Administrative Procedure Act (APA). Others include: -Freedom of Information Act (FOIA, usually an entire chapter in Administrative Law case-books); -National Environmental Policy Act (requires agencies to assess the environmental impact on proposed projects); -Paperwork Reduction Act; -Sunshine Act; -Federal Advisory Committee Act (FACA); -Regulatory Flexibility Act; and -Unfunded Mandates Reform Act; and -Data Quality Act

98. Which agencies are independent agencies?

There is some uncertainty about this, because Congress has never enacted an official, definitive list, and is not always explicit about in the agency's governing statute. There are 15 well-known, indisputably independent agencies, including the Securities and Exchange Commission, the Federal Trade Commission, the Federal Communications Commission, the National Labor Relations Board, and the Federal Reserve Board.

37. What is the "intelligible principle" test?

The test is used by the Supreme Court to evaluate delegations by Congress to the executive. Adopted in J.W. Hampton, Jr. & Co. v. U.S., 276 U.S. 394 1928, the intelligible principle test means that Congress must include some statutory guidelines to which the Executive Branch must conform. This was a very lenient standard-almost vaguely descriptive verbiage in the statute will suffice. As a rule of thumb, if the statutory verbiage gives enough guidance that a reviewing court can answer yes or no to the question of whether agency acted within its statutory authorization, then there are sufficient intelligible standards.

39. When has the Supreme Court held that a statute violated the nondelegation doctrine?

There are only three cases-from a two-year period at the end of the Lochner era-in which the Supreme Court has invalidated a delegation of Congressional authority based on the nondelegation doctrine. Panama Refining Co. v. Ryan 293 U.S. 388 1935. A.L.A. Schechter Poultry Corp. v. U.S., 295, U.S. 495 1935. Carter v. Carter Coal Co., 298 U.S. 238 1936.

99. What are the distinguishing characteristics of independent agencies?

There are several factors: 1. Most independent agencies are directed by a collegial board or commission instead of a single director, administrator, or secretary, although there are some important exceptions to this rule. In general watch for words like "commission" or "board" in the name of the entity as a hint that is probably an independent agency. 2. Bipartisan. Most independent agencies are statutorily required to have members from both the Democratic and Republican parties, usually with a bare majority from one or the other. 3. Staggered terms. Usually the commissioners of independent agencies have staggered terms so that the President does not have the opportunity to replace the entire board at once; and usually individual terms last longer than the President's four-year term. 4. Limitations on removal. Independent agency statutes usually limit the President's ability to remove a commissioner to certain circumstances, like malfeasance or other good cause.

133. What are the traditional justifications for allowing agencies to adjudicate public rights cases?

There were two traditional justifications for allowing agencies to adjudicate public right cases: 1. Adjudication of such claims was not even necessary because the questions could have been decided within the government without adjudication. 2. Public rights (in adjudication) did not exist at common law due to sovereign immunity, which means assigning these cases to agencies did not deprive Article III courts of any of their traditional jurisdiction.

137. Richie Rich files a complaint with the appropriate regulatory commission against his commodities broker, whom Richie alleges violated several securities regulations and lost Richie's investment. The brokerage firm responds by filing a counterclaim with the commission for unpaid fees and charges Richie owes the firm. The governing statute authorizes such counterclaims, so the agency holds a hearing and rules in favor of the brokerage firm on both claims, and orders Richie to pay the firm the fees and charges he owes. Richie then takes the case to a district court, arguing that the agency had no jurisdiction over the counterclaim, which was really just a regular contract dispute. what result will Richie Rich get in court?

These are basically the facts of CFTC v. Schor, 487 U.S. 833 1986. In that case, the Supreme court upheld the Commission's adjudication of this counterclaim, even though it was indisputably a "private rights" claim, because the statute permitted the agency to hear only counterclaims related to its statutory authority (disputes with brokerage firms). In addition, there appeared to be no aggrandizement of Congressional power at the expense of the judiciary that would pose a threat to the Separation of Powers. Finally, the availability of judicial review, and the fact that the plaintiff had insisted on the brokerage's claims for unpaid fees be adjudicated by the agency instead of the district court, convinced the Court that there was nothing amiss with this arrangement.

104. Prosecutor Jack McCoy receives an appointment to be an "independent counsel", assigned with the discrete task of instigating corruption charges against the FDA's Administrator, Bribed. McCoy's investigation is very aggressive and draws media attention. He obtains a contempt order when Bribed refuses to disclose certain documents about deals made with executives in the regulated industry. McCoy was appointed by a judicial panel pursuant to a statute that permits his removal only by the Attorney General, and only "for cause". When Bribed challenges the contempt order on the grounds that McCoy was appointed under an unconstitutional statute, how will this court rule?

These are similar to the facts of the case of Morrison v. Olson, 487 U.S. 654 1988. Which involved an independent counsel (Alexia Morrison) investigating misuse of EPA superfund money by Theodore Olson. The Supreme Court upheld the statute that allows federal judges to appoint independent counsels, who are removeable by the Attorney General for cause, but who usually leave the position when the investigation ends. The court found that the Attorney General's removal power, factored together with the discrete tasks and limited duration of the assignment, implied the independent counsel was an "inferior officer" and therefore not subject to the requirements of the Appointments Clause that the President designate the individual for the post.

43. To bolster economic recovery after a severe downturn, the legislature passes a National Industrial Recovery Act, which includes a provision giving the President full authority to ban or limit interstate shipments of petroleum. President Lucy Van Pelt announces the creation of state quotas for fuel supplies, In hopes of controlling fuel costs and preventing certain states from hoarding supplies to drive up prices for resale. Peppermint Patty's refining Co. challenges this enabling statute, after enforcement officials began digging up her pipelines and puncturing her tanks as punishment for violating the executive order. The Refining Company claims that the statute delegates too much open-ended authority to the President. What will be the result?

These are the basic facts of Panama Refining Co. v. Ryan, 293 U.S. 388, 1935, and is the first of only three cases in which the Supreme Court invalidated a statute for violating the nondelegation doctrine. The Supreme Court held that the statute lacked any standard or guidelines to direct the President's actions, beyond vague policy statements. Although this case is historically important (and mentioned or discussed in nearly every administrative law case-book), the analysis of the intelligible principles has evolved since the New Deal, and many commentators suspect that these same statutory provisions would be upheld if the case were to be decided today.

44. The President receives sweeping statutory authorization from Congress to approve "fair-trade codes" for various industries and the Presidents adopts a code for poultry producers, which include minimum wage and maximum hour rules for slaughter-houses, and forbids customers from selecting individual chickens for purchase. The code itself was drafted by a businessman within the poultry industry, who would gain a competitive advantage from the new rules. Mr. Meathead operates a kosher slaughterhouse in New York City, and is charged with violating the President's proscriptions. Should Meathead prevail?

These are the facts of A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 1935. One of the few cases where the Supreme Court invalidated a statute due to nondelegation concerns. The Court held that the statutory terms like "fair trade" were too open-ended, and that Congress had shirked its duty to legislate by leaving legislation to the President. The Court relied on its previous decision in Panama Refining Case, but also mentioned the additional problem of an agency adopting a code produced by private groups, who could be promoting their own competitive interests. Many commentators believe that the statute here would be upheld under (more lenient) nondelegation analysis, but modern courts (especially state courts) remain divided on the practice of agencies adopting private groups' codes as official regulation.

94. The Recess Appointments Clause says, "The President shall have Power to fill up all vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session". What does the clause mean by "the recess"?

This is a developing area of law, but the most recent appellate decision in this area held that "recess" is the time when the Senate is not actually in session, and does not refer to breaks during the annual session such as three-day weekends for federal holidays. The significance of so defining "recess" is that the President cannot make valid recess appointments that bypass Senate confirmation requirements) unless the Senate has ended its session for the year.

85. Suppose Congress creates a new agency to stop global warming and regulate carbon dioxide emissions, especially from vehicles. To direct this new agency, the President appoint Harry Ford, the former CEO of a major automobile manufacturer. Mr. Ford has undisputed expertise in vehicle emissions, the economic feasibility of different alternatives for controlling vehicle emissions, and the projected number of vehicles that will be on the roads for the next several years. Ford immediately promulgates a body of regulations that are very favorable to the automobile industry and do very little to reduce emissions. What do we call this rather commonplace scenario?

This is an example of agency capture, where through the appointments process, a regulated industry gains de facto control of the agency that is supposed to be regulating it.

138. Congress amends the bankruptcy statutes to allow bankruptcy judges to hear all ancillary claims related to the bankruptcy, including outstanding contract, tort, and property claims that bankrupt individuals have in state courts. The statutes mandate that the ruling of the bankruptcy judges on such claims are final and become res judicata for future litigation in any other forum, but are subject, of course, to judicial review. Wormhole Pipeline Company is undergoing reorganization in bankruptcy court, and the courts end up adjudicating an unresolved contract claim Wormhole has against Mole Hill corporation, ruling in favor of Wormhole (which enlarges the pool of funds the bankrupt company has to pay off other creditors). When Mole Hill tries to make a mountain of this case and takes its contract dispute to the Supreme Court, what result will it obtain?

This is very similar to Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50 1982, where the Supreme Court ruled that the statutory delegation of such plenary judicial power was unconstitutional, because bankruptcy courts are not Article III courts (the judges do not have life tenure). They based this in part of private rights-public rights distinction delineated in the old Crowell v. Benson case from 1932. Congress responded to this ruling by amending the bankruptcy statutes again, so that private claims can now be "referred" to the bankruptcy court by a district judge (a formality that is universally followed), and bankruptcy judges issue only "proposed decisions" on the private rights claims, subject to de novo review by a district court. The bankruptcy judge's proposals can become final, however, by consent of all the parties, which usually happens in practice. Congress also moved the appointment of bankruptcy judges from the executive to the Apellate courts, which helped mitigate the Separation of Powers problem.

130. What is the difference between "public rights" and "private rights" for purposes of administrative law?

Traditionally, public rights claims are against the government (or by the government against an individual), territorial claims and military cases; private rights are legal disputes between private parties; that is, the traditional common-law area of torts, contracts, or property claims. Historically, administrative agencies could always adjudicate "public rights" cases under their statutory jurisdiction, but only recently began to adjudicate some private rights, usually as ancillary claims to public rights cases. Most public rights are created by statute.

12. What is the "ultra vires" doctrine, for the purposes of administrative law?

Ultra vires is a latin meaning "beyond the powers" that is, beyond one's legal authority. It is used more often in Britain than in the United states; in the United Sates it is more commonly used in corporate law. For purposes of administrative law, the term has two main uses: 1. When an individual agency official or employee acts outside his or her scope of duties within the agency. 2. When an agency acts outside the bounds of its enabling statute, or in defiance of other generic statutory limitations on its procedures like the APA.

89. If the President appoints all principal officers, how are inferior officers appointed?

Unless Congress specifies otherwise, the procedure is the same as that for the appointment of principal officers: The President nominates and the Senate confirms. Yet the Constitution allows Congress to specify by legislation that some interior officers be appointed by the President alone (directly), by the courts, or by heads of departments, like the judges in the Edmond case (who were appointed by the Secretary of Transportation). Note that in the Morrison case, the Court in dicta cautioned that some inferior officer appointments would indeed be illegal, like appointments across departmental lines or courts appointing executive officers.

50. What is the significance of the Whitman v. American Trucking case?

Whitman v. American Trucking Associations Inc., 531 U.S. 457, 2001, is the most recent nondelegation case from the Supreme Court, and is featured in most administrative law casebooks. In a nutshell, the D.C. Circuit Court of Appeals held that a section of the Clean Air Act, at least on its face, delegated too much discretion to the Environmental Protection Agency (EPA). The Circuit Court then added a twist to the nondelegation analysis: Rather than invalidate the statute, it required the EPA to generate its own "intelligible principles" by adopting an official interpretation of the statute that would limit its own discretion. The Supreme Court reversed, holding that the statute already contained sufficient intelligible principles; it rejected the D.C. Circuit's idea of curing possible unconstitutional delegations by compelling an agency to adopt a narrow interpretation. Justice Scalia wrote for the majority; while finding no problems with the Clean Air Act, he asserted that the nondelegation doctrine was still alive and well, albeit seldom used.

53. Ace Rothstein has applied for a liquor license for is new Tangiers Casino, but a state statute requires a neighborhood referendum where private homeowners vote on whether the new license should be granted. Ace's close business partner, Nick Santoro, has managed to alienate everyone in the neighborhood, so the vote does not go in Rothstein's favor. Nicky suggests they resort to violent retaliation against their neighbors, but Rothstein wants to challenge the referendum law in court. Does he stand a chance of convincing a court that the referendum arrange is unconstitutional?

Yes possibly. Although nondelegation challenges usually fail, there are several well-known cases (some relatively recent) where courts have invalidated neighborhood referendums that affect one's individual property interests. Club Misty Inc. v. Laski, 208 F.3d 615 (7th Cir. 2000). Courts addressing such delegations to private parties sometimes express their disapproval as due process concerns rather than invoking the nondelegation doctrine explicitly.

55. Congress grows impatient with the Lionheart's Agency's chronic delays in implementing its statutory agenda, and considers a proposal to abolish the agency and shift all its powers and responsibilities to the Lackland administration by statute. Can Congress simply abolish an agency or transfer its powers to another by statute?

Yes, although abolishing an agency is a rather drastic measure and is far less common than other means of Congressional control. Congress is more likely to shift part of an agency's responsibilities to another regulatory entity, apply political pressure during committee hearings, or even pass statutes that exempt the agency from certain time-consuming activities like complying with Freedom of Information requests or conducting public hearings before promulgating regulations.

9. Congress enacts a law requiring all federal agencies to suspend their usual processes for granting permits and licenses during the last month of the year, to have a clear break between calendar years that mark the tolling period for licenses or permits. This includes a list of exceptions for emergency circumstances and exemptions for some agencies. Would a court uphold such a statute?

Yes, assuming it finds no unconstitutional infringements on executive powers in the wording of the statute, Congress can pass legislation that controls the procedures and operations of the federal agencies overall. These are often called generic statutes (as opposed to enabling or organic statutes), the most important of which is the APA.

105. Arthur, the newly elected President, introduces sweeping regulatory changes to help stimulate the national economy. Mordred, a commissioner of the Federal Trade Commission (FTC), a holdover from the previous administration and conscientious opponent of President Arthur's reforms, refuses to step down despite Arthur's repeated calls for his resignation on television. Arthur finally sends Mordred a snippy letter saying only "You're fired!". There is a statutory provision limiting removal of FTC Commissioners to cases of "inefficiency, neglect of duty, or malfeasance." Mordred continues to show up to work and files a lawsuit challenging his termination and asking for his salary for the time worked. Will Mordred prevail?

Yes, because the Constitution allows for Congress to place limitations on the basis for the President's removal of independent agency commissioners, especially if they have some legislative-type functions. These facts are similar to those in Humphrey's Executor v. U.S. 295 U.S. 602 1935, where the Supreme Court distinguished its holding in the Myers case (about the Postmaster General) and held that President Roosevelt could not terminate William Humphrey without showing actual neglect, malfeasance, and so on.

84. Can Congress limit the President's ability to remove agency officials?

Yes, by statute. Normally, the President can fire agency officials "at will" because courts have implied a removal power inherent in the constitutional provisions authorizing the President to appoint agency officials. When Congress wants to make an agency somewhat independent of the White House, however, it can enact a statute stipulating that the agency official can be removed only under certain circumstances (malfeasance , neglect of duty or other good cause).

59. Congress enacts legislation banning smoking in any workplace nationwide, and assigns OSHA the responsibility to monitor and enforce this law. The top tier of leadership at OSHA thinks this law is ridiculous and refuses to do anything. Can Congress compel an agency to take on new policy directives?

Yes, partly. Congress can assign new regulatory agendas to agencies and exert various pressures on the agency (like the threat of budget cuts or budget restrictions on how the agency spends money), and the Supreme Court has held recently that in certain cases agencies can be compelled to promulgate rules pursuant to Congressional mandates. See, Massachusets v. EPA 549 U.S. 497 2007, which compelled the EPA to promulgate greenhouse-gas emissions standards for automobiles. On the other hand, agencies have much more discretion about enforcement than about rulemaking. It is less clear that Congress can override an agency's refusal (or inability) to enforce laws. This was also discussed in the Massachusets case, and in Towns of Castle Rock Colo. v. Gonzales, 545 U.S. 748 2005.

139. A federal statute requires insecticide manufacturers to submit scientific test results for their registered chemical products to the EPA. Subsequent manufacturers of similar products, including market competitors, can simply incorporate any previously filed test result into their own submissions to the agency, saving these later manufacturers considerable expenses in scientific research and data processing. To prevent early registrants from being economically disadvantaged by this arrangement, the first manufacturer to submit test results can seek financial compensation, in an EPA hearing, from subsequent manufacturers who benefit from its scientific date on file with the agency. Will the courts uphold the agency's adjudication of such claims, given the similarity to traditional trade-secrets in regular courts?

Yes, probably. These are basically the facts of Thomas v. Union Carbide Agricultural Products, 473 U.S. 568 1985. Justice O'Connor, writing for the majority, said that the first manufacturer had been forced by the statute to surrender potential trade secret claims by submitting its formula (and research on its potency) to the public agency. In addition, the Court held that this case blurred the lines between private rights and public rights, because the compensation scheme was purely a creature of federal statute, normally a trait of public rights-but that the legal claim was between two parties, as with private rights. This was a close case, however, decided 5-4, and there are several new justices on the Court who might decide the case differently If it arose today.

56. George Bailey is the head of the Small Business Administration (SBA), which operates loan programs for start-up companies in low-income neighborhoods. Senator Potter believes the SBA is a waste of money, and that these funds should instead go toward providing corporate tax relief for the nation's largest corporations, which employ more voters in Potter's home state. Potter convinces his fellow senators to eliminate funding from the SBA's small business loan program through a provision in the upcoming annual budget. Can Congress cut the funding of an agency's programs?

Yes. Congress can reduce an agency's funding to express displeasure with its activities or disagreement with its policies, and Congress can forbid agency expenditures for certain purposes, as described in these facts. The threat of possible cuts in funding from Congress influences administrative agencies in their policy decisions. In fact, the appropriations process might be the most effective way in which Congress exerts control over administrative agencies. Because this practice does not generate many legal challenges or cases, it is usually mentioned only in passing in administrative law courses.

78. Can Congress enact limitations on the President's appointment powers?

Yes. Even though the Constitution gives the President Appointment powers for "officers" of the United States (usually subject to Senate confirmation), Congress sometimes creates "independent agencies" governed by a board or commission, which is often required to be bipartisan. This limits the President's options in selecting appointments. Congress may not, however, participate directly in the appointment of individual officers apart form the constitutionally prescribed Senate confirmation procedures. Congress can also require low-level employees to be appointed by other agency officials, the judiciary and so on.

17. Can the President create a new administrative agency by executive order?

Yes. Several important agencies have been created this way, rather than by statute. Examples include the Veteran's Adminsitration (President Hoover, 1930) and the Federal Emergency Management Act (President Carter, 1978). EO 12,148 & EO 12,656. Sometimes the creation of an agency by an executive order occurs in conjunction with Congress passing an enabling statute, as in the case of the Environmental Protection Agency. The executive order that creates an agency can function as a type of enabling statute, giving the agency delegated powers and responsibilities, even though it is a misnomer to call it a "statute", as it did not come from Congress.

58. President Josiah Barlett appoints his former campaign manager, Leo, as the Secretary of Transportation. Does he have to obtain Senate confirmation of Leo's appointment?

Yes. The Constitution assigns this role to the Senate in the Appointments Clause of the U.S. Constitution (Art. II, Sec. 2, Cl. 2 which says the President appoints officers with the advice and consent of the Senate").

113. If courts cannot enforce most executive orders, can they review and invalidate problematic executive orders?

Yes. The President does not have authority to issue executive orders contrary to law. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 1952, the Supreme Court invalidated President Truman's executive order directing the Secretary of Commerce to seize the nation's steel mills to prevent a labor strike during the Korean War. The Court held this order was not within the President's powers as commander-in-chief, not was it within his powers to enforce laws, as there was no law authorizing the seizure of the mills. Justice Jackson's concurrence in Youngstown offered a three-pronged analysis for these cases. (1) The President's power is at its greatest when he is acting pursuant to express or implied authorization from Congress. (2) The President's power is at its weakest (receives the most judicial scrutiny) when he acts contrary to Congress's will. (3) Finally, the President's power is in the middle when he acts with neither approval nor disapproval from Congress (legislative silence).

79. Congress enacts a statute saying that the President may not appoint lower level attorneys within the Department of Justice (Assistant U.S. Attorneys), but instead such appointments will be made by the Court of Appeals in the circuit where the lawyer will practice. Would a court find that this provision is constitutional?

Yes. The Supreme Court has upheld similar provisions before, especially because the attorneys have a close relationship with the functions of the judiciary.

63. The National Labor Relations Board adopts a policy of prohibiting undocumented immigrant workers from membership in unions or collective bargaining units. The unions lobby in favor of including undocumented immigrant workers because it increases their membership and gives them more bargaining powers and revenue from union dues. In response to pressure from the unions, Congress passes a statute amending the National Labors Relations Act to say that undocumented immigrant workers cannot be excluded categorically from union membership. Can Congress override agency policies through legislation in this way?

Yes. The agency's rulemaking power comes entirely from Congress by statutory delegation, so Congress can limit, remove, or expand the agency's rules through additional legislation.

75. Congress enacts a statute creating a Congressional Budget Office (CBO), specifying that the Speaker of the House and President Pro Tempore of the Senate will appoint its Director. The statute also states that the CBO is an "office of the Congress" and its function is to assist budget committees in each house of Congress with information, research and other clerical tasks related to budget hearings. No mention is made in the statute of the President's appointment or removal powers. Is this statute constitutional?

Yes. see 2. U.S.C. Sec. 601-602 and Buckley v. Valeo, 424 U.S. 1 (1976). Congress may appoint officers whose functions are purely legislative or contained within Congress without violating the Constitution.

135. Can an administrative agency have adjudication as its primary function?

Yes. this is an apt description of the Social Security Administration (SSA) and the National Labor Relations Board (NLRB), two important agencies that spend most of their time and resources adjudicating cases. These agencies also promulgate regulations, conduct policy research, and carry out other tasks, but in theory an agency could have adjudication as almost its sole activity.

21. How did the courts respond to the sudden growth of the administrative state?

at first, the judiciary was generally hostile toward the new administrative agencies and this was one of the defining traits of the Lochner-era Supreme Court. Cordozo wrote of "delegation running riot" (A.L.A. Schechter Poultry Corp. v. U.S. 295 U.S. 495, 553 1935, concurring opinion). Justice Jackson went further, writing that the agencies "have become a veritable fourth branch of the government, which has deranged our other three-branch theories" (FTC v. Ruberoid Co., 343 U.S. 470, 487 1952). Over time, the judiciary adopted a more deferential view administrative agencies in recognition of their Congressional mandates and specialized expertise. The adoption of the Administrative Procedure Act in 1946 also helped address many of the previous concerns about the legitimacy of the agencies. Note: This gradual historical shift from judicial hostility to overall judicial acceptance of the administrative state is important for understanding the line of cases presented in most administrative law casebooks.