Intro to

Administrative Law
Prof. Theo Myhre
UW School of Law
LAW 100 A, B, & H/Fall 2015

The Administrative State

AuthorityArticles
U.S. Constitution,
I, II and III.
Amendment V, Due
Process when
administrative policing
powers.
Amendment IV, Due
Process when addressing
public and private rights.
Delegation of legislative
power must be
constitutional

Big Picture
Executive BranchThe Cabinet:
Agriculture
Commerce
Defense
Education
Energy
Health & Human Services
Homeland Security
Housing and Urban Development
Interior
Justice
Labor
State
Transportation
Treasury
Veterans Affairs
Stand Alone Agencies or
Commissions:
Environmental Protection
Small Business Administration
Federal Communications
Commission
National Labor Relations Board

Congress
Delegates
Executive
Administers
Judiciary
Reviews

What Does Delegate Really Mean?

Delegation
of Power-
Under a specific
statute,
Congress
Congress may delegate

Delegation of Power-President

authority to a specific
agency to make
The chief executive
regulations consistent
delegates his some of his
with the statute and
or her executive powers to
limited by the scope of the
the various departments
delegation of authority.
in order to administer the
An agency that exceeds
laws and regulations of
the delegation of authority
the United States as they
has an invalid and
relate to public rights or a
unenforceable regulation.
blend of public and private
rights.

What Does Administer Really Mean?

Powers of
Departments

Apply Expertise
Make Rules
Administer Regulations
Enforce Regulations

(Policing/Administrative
Hearings/Agency
Review)

DelegationThe Power
to Act
Congressional
Delegation

A.L.A. Schechter Poutry v. U.S. (1935)

Violation of Wages & Hours limits
set under the Live Poultry Code
under the National Industrial
Recovery Act found
unconstitutional.
Requires Congress to articulate
standards for the Agency.
Requires Congress to prescribe
rules to be applied to particular sets
of facts determined by appropriate
administrative procedure.
No unfettered regulations

Congres
s: Gives
Directio
n

Agency: Fills
in Details
and Applies
Rules

Executive
: Guides
Applicatio
n

Delegation to Administrative
Agencies
Strengthened
National Cable
Television Assoc. v.
United States (1974)
Court recognizes the

Whitman v. American
Trucking Assn. (2001)

Environmental Protection Agency

required to set air quality

abandonment of Schechters
standards based on a broad
narrow confinement of the
standard to protect public health.
power of Congress to delegate
Court of Appeals said delegation
authority to administrative
was proper but agency
agencies.
interpretation lacked an intelligible
Delegation to regularly
principle and required agency to
adopt a narrower interpretation of
constituted agency which
statute.
follows established
Supreme Court reversed. EPA only
procedures designed to
has to set air quality standards at
enforce customary safeguards
the level that is not lower or higher
to affected parties allowed.
than necessary to protect public
health. Within EPA discretion.

Can Part of Congress

Veto?
INS v. Chadha (1983)
Immigration and Naturalization Act

delegated to the executive branch,

specifically the Attorney General, the
authority to allow deportable aliens
to remain based on specific
circumstances.
Attorney General allowed Chadra to
overstay his student visa and
suspended his deportation.
House of Representatives vetoed that
action. Chadha appealed.
Court held constitution values
separation of powers and due
process more than efficiency. Veto
would require all Congress and
Presidential approval to veto Attorney
Generals decision

Rulemaking
Informal & Formal
Controlled by the Administrative

Procedures Act.
Rules apply to present and future
actions--cannot be used
retroactively.
Informalpublish notice of proposed
rule; allow for comments; publish
rule 30 days before it takes effect.
Formalnotice; comments; collect
oral and documentary evidence,
produce statement of finding and
conclusions and basis for
conclusions on all issues of fact, law
or discretion presented.

Hearings Dont Mean Court-Like

United States v. Florida East

Cost Ry (1973)
Vermont Yankee Nuclear
Power v. Natural Res. Def.
Council (1978)
National Rifle Assn v Brady
(1990)
All held that hearings do
not necessitate oral
arguments, cross
examination and other
adjudicative procedures.
Written comments and other
evidence are enough.

AGENCY ADJUDICATION
Agencies employ Administrative

Law Judges (ALJ) who are

employees with judge-like
functions and who operate
somewhat independently from
the agency.
Make their decisions based on
evidence and arguments from
hearings. If formal, then will
issue a decision with facts,
reasoning, and conclusions.
Comply with notions of due
process.
Can issue decision or make
recommendation for approval by
agency leadership.

JUDICIAL REVIEW
Under the APA, a party can

be any person suffering

legal wrong because of
agency action, or adversely
affected by agency action
under the statute.
Court requires a party to
demonstrate an injury in
fact that is concrete and
particularized and actual or
imminentnot speculative
or hypothetical.

Judicial Review Continued

Massachusetts v. E.P.A.

(2007)EPA decided not

to regulate greenhouse
gas emissions. Sued by
state.
The existence of a
causal connection
between man-made
green house gases and
global warming means
that a refusal to regulate
injures the state.

Exhaustion of Admin. Remedies

Darby v. Cisneros (1993)fight

between real estate developer

and HUD regarding issuance of
limited denial of participation
in single family mortgage
insurance from HUD.
After hearing, Darby decides
not to appeal to the secretary
but rather files a federal
lawsuit.
Court concludes that final
agency decision is what
triggers judicial review.
Congress can explicitly
requires exhaustion of admin
remedies or simply that final
agency decision is enough.

Deference to Agency Interpretation

of LawThe Chevron Standard
Barnhart v. Thomas (2003)elevator

operators job was eliminated. She suffers

from several medical problems which
prevented her from finding new work.
Applied for disability benefits. Denied by
SSA. Appealed
SSA determined that because she had the
mental and physical ability to conduct her
prior job, she did not have a disability
entitling her to benefits, based on its 5-step
interpretation.
Court held that when a statute is silent or
ambiguous courts will defer to the agency
when its interpretation is reasonable (one
possible interpretation) even if it creates a
harsh result.

Freedom of Information
Act
Information possessed by the

government belongs to the

people.
Exceptions: classified
materials; internal personnel
rules; matters excepted by
other statutes; trade secrets
and other IP; inter and intra
agency memos; personnel and
medical files that would invade
privacy; certain law
enforcement records; certain
regulatory information for
financial institutions;
geological information.

What
Can
Be
Disclosed?
Natl Archives &
Record Admin. v.
Favish

Suspicious Death?

Favish wanted 11 pictures taken by law

enforcement at the scene of death for Vincent

Foster, Jr., deputy counsel to President Clinton.
Government denied the request on the
grounds that it would be an unwarranted
invasion of personal privacy of both Foster
and of his family.
Court found that FOIA recognizes a familys
right to privacy in their relatives death-scene
images. And it held that balancing test
between privacy interest and public interest in
disclosure was not met. Needs more than a
bare suspicion. Evidence needed that
supports a reasonable person in believing that
government impropriety occurred.

What Can Be Disclosed?

U.S. Dept. of Justice v.
Landano

Landano was convicted of murder of

police officer. He maintains someone else

did it. Requested FBI files. Released 100s
of pages documents, redacted some and
withheld 100s of other pages. Asserted
that information withheld was presumed
to be from confidential sources during a
criminal investigation.
Court held that FOIA exceptions must be
interpreted narrowly. FBI not entitled to
presumption of confidentiality, but can
show on a source by source basis whether
document was in fact confidential.

Reprisals?

Open Meetings
Cheney v. U.S. Dist. Court
(2004)

National Energy Policy Development

Group created by George W. Bush. Vice

President Cheney appointed chairman.
Groups official member all government
employees. Other attendees from
private sector. Judicial Watch and Sierra
Club sued for access to documents, etc.
Trial court granted some disclosures.
Government asked Court of Appeals to
issue mandamus order to prevent
disclose. COA declined. U.S. Supreme
Court reversed reasoning that the COA
should have taken the special role of
executive privilege into consideration.

Making private
deals?

Laws and Extinction

Endangered Species
Act

The Secretaries of Interior

God Squad

Committee composed of seven Cabinet-level

members: The administrator of the Environmental

Agency, the administrator of National
and Commerce list species Protection
Oceanic and Atmospheric Administration, the
as threatened or endangered chairman of the Council of Economic Advisers, a
from the state in question, the
based on best available data. representative
Secretary of Agriculture, the Secretary of the Army,
Federal agencies consult with and the Secretary of the Interior.
Committee has the authority to allow the extinction
Fish and Wildlife Service or by exempting a federal agency by a vote of 5 of the
seven members.
National Marine Fisheries
For the species, there must be no reasonable
Service before taking any
alternative to the agencies action; the benefits of the
action must outweigh the benefits of an alternative
action that may threaten a
action where the species is conserved; the action is of
listed species.
regional or national importance; and neither the
agency or the exemption applicant made
The taking of an endangered federal
irreversible commitment to the resources.
species is forbidden by law. Also, mitigation efforts must be taken to reduce the
negative effects on the endangered species.