III.

Controlling Administrative Entities Legislative and Judicial Controls

Recall that U.S. government is divided into three branches representing the separation of powers doctrine contained in our U.S. Constitution: The legislative branch; The executive branch; and The judicial branch.

Administrative activities essentially take place in the executive branch of government. Thus, when we are thinking about controls on administrative entities, we are really talking about the roles played by the legislative and judicial branches of government in controlling the administrative units that sit within the executive branch of government. Thus, this section is focused on looking at the major (not complete) roles played by the legislative and judicial branches of government in influencing administrative actions emanating from the executive branch. A. Legislative Controls Legislative controls over agency actions have been discussed in some detail already under the framework of statutory delegation; congressional limitation of agency authority through limiting the amount of discretion granted the agency when passing a law. The main points interwoven into the introduction of administrative law concepts that highlight legislative controls are summarized below: Statutory delegation essentially means Congress via legislative action has delegated rights and obligations to the administrative entity: Rights in the sense of empowering the administrative body (usually executive agency) to engage in certain actions it would otherwise not have the right to engage in without the statute explicitly or implicitly giving the agency the power. Obligations in the sense that the agency is obliged to follow the responsibilities given to it by the statutory delegation depending on the language contained in the statute regarding the delegation. For example, if the statute indicates the agency shall regulate air quality to achieve some goal, then the term shall is generally interpreted as mandatory language and the agency has no choice and is obliged to follow the statutory mandate. On the other hand, if the language of the statute reads that the agency may regulate air quality (in its judgment), then the agency may have an obligation under the statute to decide whether or not to regulate air quality, but not an absolute duty to actually regulate air quality. The language

may is generally interpreted as permissive language leaving the agency with greater discretion.1 The other concept we need to identify in looking at legislative controls is administrative discretion. Remember administrative discretion is based on the powers delegated to the agency from the legislature (Congress) through a statutory delegation. The relationship between the kinds of powers available to be granted to the agency by Congress (the limits of congressional power), and the amount of power actually granted to the agency by the legislature within those outer limits placed on Congress is visually represented here:

Think of administrative discretion as the amount of room an agency has in implementing a statutory delegation. For example, a statutory delegation might be quite specific, stating that an agency is to engage in specific steps to achieve a statutory goal. Requiring the installation of a specific technology to scrub sulfur from coal-burning power plants leaves little discretion; the agency simply ensures all coal-burning power plants are installing and using the same scrubber technology to filter out sulfur emissions. An alternative example with greater discretion may be a delegation that states a particular goal, like clean air, but leaves it up to the agency to decide both what constitutes clean
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Any ambiguity as to whether a statutory delegation is mandatory or permissive is resolved by the judiciary.

air and how to develop regulations in order to get to the goal of clean air; in this example there is a great amount of discretion left to the agency by the statutory delegation. Statutory language that is vague (without details) provides greater discretion to agencies when responsibilities are being delegated. Statutory language that is detailed and comprehensive provides less discretion to agencies.

Visually we can represent the concept of statutory delegation and discretion in the following schematic:

The black box represents the extent of agency discretion granted by the legislature when delegation a statutory duty to an agency. Thus, all actions by the agency must be found to exist wholly within the box; any act by the agency that exists outside the box is outside of its discretion (and brings up hierarchy of law issues we will discuss in a moment). It is important to remember the box itself can vary in size: There is no box when a statute does not delegate any obligations of the statute to an executive entity. There is a small box where a statute delegates very little responsibility to an executive entity in implementing the goals of the statute.

There is a large box where a statute delegates lots of responsibility to an executive entity in implementing the goals of the statute.

Remember, the box created by the statute is one question that needs to be answered. However, we must also determine whether or not the box itself allows for the conduct it envisions. For example, a statute that gives authority to federal agencies to engage in actions that violate constitutional principles is an invalid statute, thus the box gave discretion to an agency it did not have the power to give (as the constitution represents the supreme law of the land). This is where the hierarchy of laws comes back into our minds as a conceptual tool by which we evaluate legal frameworks that involve administrative functions. B. Judicial Controls Judicial controls over administrative acts cover two broad areas of review: Ensuring the agency action is within the powers (box) delegated to the agency by the legislature. o This includes both the specific delegation created under a statute and the limitations placed on the agency action by other statutes (for example the APA)2. Ensuring the agency action is in compliance with other legal limitations, most particularly constitutional requirements (such as due process requirements, protections against self-incrimination, protections against discrimination, etc.)

One of the most important aspects of judicial review is the standard of review used by the courts when reviewing agency actions. Understanding the standard of review employed by the courts helps us better understand the extent of agency powers, particularly the way in which a court determines agency discretion in relation to the hierarchy of laws. In other words, what questions does a court ask itself when reviewing an agency act to ensure the act is within both constitutional limitations and statutory limitations? To answer this question we can review the Chevron doctrine of deference. Recall above that statutory delegations can be seen to create both rights and obligations on the administrative body; rights in the sense that the delegation grants power to the agency to have authority over a particular field (environmental protection, gun control, narcotics, tax collection, etc.), and obligations in the sense the delegation limits agency action. The limits placed on agency action occurs in two ways; there are limits on the amount of power granted to the agency in a particular field, and also limits on the amount of discretion granted to that agency within a particular field. Where a statutory delegation gives detailed instructions on how the agency is to act (agency shall
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For example, the judiciary might review a challenge to the agency action as not being within the powers delegated to the agency under a particular statute. In addition, the judiciary may review the agency action in relation to Administrative Procedure Act requirements, like whether or not the agency followed proper notice and comment procedures in its rulemaking process.

engage in the following detailed approach in making the air clean: (1) find stationary sources of air pollution; (2) determine the amount of pollution; (3) use the approved method of control as stated in this statute; etc.), then there is little discretion left to the agency. Alternately, where the delegation is vague and thus provides little details on meeting a policy goal (agency shall find ways to make the air clean) there is greater discretion left to the agency in deciding how to meet the goal. Based on the above, judicial review employs the following two-prong approach under the Chevron Doctrine: Look to the statutory language: is the language explicit, providing the agency with the ability to do what they have done? If yes, then the agency is operating within its statutory discretion (assuming the action does not violate other statutes or constitutional protections of course). If no, then ask the second question. Is the agency action a reasonable interpretation of the language set forth in the statute? o In answering this question, the court applies the doctrine of deference, meaning that an agencys interpretation of the statutory delegation will be considered reasonable so long as there is some connection between the language of the statute and the agency act. A visual representation of judicial review of agency actions is provided here:

In the figure above, the red area represents constitutional prohibitions. Thus, even though Congress may act with authority in certain areas (like controlling speech), it cannot act in a way that violates a constitutional principle. Judicial review would include determining if the delegation is within the power of Congress; if the delegation was determined to fall within the red area, then it would be found unconstitutional. Under such circumstances both the statutory delegation and agency action would be found invalid. The yellow area represents a potentially valid area of authority held by Congress in its power to delegate. However, under the specific delegation provided in the statute, it is determined that Congress has chosen not to include this potential authority in its delegation to the agency. Thus, an agency action that is found to stray into the yellow area is judicially determined to be invalid because the action goes beyond the power delegated to the agency by Congress. The green area, like the yellow, represents a valid area of authority held by Congress in its power to delegate. Unlike the yellow area, however, the green area includes powers that were actually delegated to the agency through the statutory delegation under review. Thus, an agency action found to exist in the green area would be judicially determined to be a valid exercise of agency discretion. Remember, under Chevron, falling within the green area means the agency acted within both the boundaries of the field delegated to it and the agency action is also a reasonable interpretation of the agency delegation i.e., it follows either the specific mandates of the delegation (if they are specific) or it follows the wide discretion offered in the delegation under the doctrine of deference. END OF SECTION.