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CHAPTER 47
ADMINISTRATIVE LAW
I. OBJECTIVES:
B. Understand the processes by which agencies are created and the limits the principle of
separation of powers places upon the ability of Congress to delegate its legislative powers to
an administrative agency.
C. Understand the two basic types of federal administrative agencies and the typical way in which
agencies are structured.
II. ANSWERS TO INTRODUCTORY PROBLEM:
In Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000),
the Supreme Court held that in the Food, Drug, & Cosmetic Act, Congress had not given the FDA
authority to regulate tobacco products. The FDA regulations, therefore, were invalid. Because the
this manual went to press.
A. As this chapter reveals, an agency cannot lawfully act outside the subject area of authority
designated for it by Congress or the relevant state legislature.
B. Agencies typically are granted investigative, rulemaking, and adjudicatory powers. Having
created the agency, Congress or the state legislature may not only grant the agency certain
were properly promulgated.
D. As this chapter demonstrates, agencies’ regulatory actions are subject to constitutional
in the Introductory Problem
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III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Introduction
1. Point out the pervasive influence agencies have on modern life and the consequent
daily basis.
2. Discuss the sociohistorical factors that led to the creation of administrative agencies.
3. Note that although the text focuses on federal regulation and federal agencies, state
operations.
4. Discuss the issues raised in the Ethics in Action box at 1273 of the text (both the general
questions and the more specific questions regarding the COX-2 inhibitors).
B. Agency Creation
1. Discuss enabling legislation as the basis for an agency‘s existence. Note, for example, how
potentially powerful instruments of social control. At the same time, however, this mix of
simultaneously limiting their ability to be evil.
2. Discuss the basic constitutional checks (e.g., due process, equal protection, freedom of
speech) that apply to agency action because it is, of course, government action.
Pearson v. Shalala (p. 1274): A federal statute prohibits marketers of dietary supplements
from making health claims on container labels unless the health claims have been
disclaimers. In addition, the court holds that the Administrative Procedure Act requires—
and the Fifth Amendment probably requires—the FDA to define more clearly what
“significant scientific agreement” means.
Points for Discussion: You may wish to have the students review Chapter 3’s treatment of
disclaimers accompany them. Therefore, the speech in which the dietary supplement
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fit between the speech restriction and the underlying government interest). The FDA’s
reflect a reasonable fit with the underlying government interest). Appropriate disclaimers
made. Hence, there was a First Amendment violation. Ask the class whether the court’s
protection.
In this case, it appears that there was credible evidence to support the health claims at
view and evaluate such a case?
Briefly note the court’s holding and supporting reasoning on the Administrative Procedure
its meaning and scope?
3. Discuss the principle of separation of powers and the limits it places on the ability of
Congress to delegate its legislative power to an agency. Any new agency is likely to face a
challenge to the constitutionality of its enabling legislation early in its existence.
a. Note the general tendency of modern courts to approve quite broad grants of power to
narrowly construing the powers granted to the agency under the statute. For a classic
New Deal case in which a delegation was struck down as overly broad, see Schecter
Poultry Corp. v. United States, 295 U.S. 495 (1935). For another classic decision,
one upholding wartime price controls, see Yakus v. United States, 321 U.S. 414
Agency. In a 2001 decision that appears as a text case and is discussed below, the
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Supreme Court reversed the D.C. Circuit’s decision and upheld the statute’s grant of
power to the EPA.
Whitman v. American Trucking Associations (p. 1277): Overturning the D.C.
Circuit’s 1999 decision, the Supreme Court holds that there was not an
unconstitutional delegation of power when Congress, in the Clean Air Act, called for
the EPA to set pollutant concentration levels that would be “requisite to protect the
of the most surprising administrative law decisions in many years. After six decades in
which broad delegations of power by Congress had been routinely upheld, the D.C.
Circuit had invoked an analysis that brought back memories of Supreme Court
decisions from the 1930s and earlier. The Supreme Court’s clear rejection of the D.C.
concern must have been in the minds of the Supreme Court justices when they
decided this case. (The concern that if this grant of power was unconstitutional, the
same would have to be true of lots of other—maybe most other—grants of power by
Congress to administrative agencies. The consequences of a contrary ruling by the
triggered.)
C. Agency Types and Organization
1. Distinguish executive agencies from independent agencies.
particular regulatory mission(s) of that agency.
3. Note the text’s discussion of the Department of Homeland Security, which was created by
alteration has been largely positive.
4. Administrative agencies no doubt are more prevalent in the United States than in other
played by agencies within the U.S.
D. Agency Powers and Procedures
1. Distinguish discretionary powers from ministerial powers.
exercise of its rulemaking and adjudicatory powers.
3. Discuss the fact that accurate information is an essential prerequisite of effective
regulation. Agencies need investigative power to gather such information and
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
investigative tools to compel disclosure of information by those who are unwilling to
disclose it. Note the tension between agencies’ needs for information and the legitimate
privacy interests of individuals.
a. Discuss the two basic types of subpoenas. Note the major limitations on agencies’
exercise of their subpoena power: investigation must be authorized by law and
conducted for legitimate purpose; information sought must be relevant to that lawful
purpose; demand for information must be sufficiently specific and not unreasonably
and seizure power. Note the lesser protection that the Constitution affords to the
owners of commercial property. This is illustrated by Dow Chemical Co. v. United
States, 476 U.S. 227 (1986), a case mentioned in the text. Point out in particular the
exception to the warrant clause for administrative inspections of “closely regulated”
privacy expectations on the part of the person whose premises are searched, there
must be a special governmental need to regulate the business in question before the
doctrine will apply.
Additional Example: See Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), in which
4. Discuss agency rulemaking power. Stress the fact that an agency‘s rulemaking power
derives from its enabling legislation. Thus, in addition to compliance with APA
mandate.
a. Discuss the differences among procedural rules, interpretive rules, and legislative
rules.
“notice-and-comment” procedures).
b. Distinguish among informal rulemaking, formal rulemaking, and hybrid rulemaking.
In the process, discuss the APA standards for formal and informal rulemaking and the
5. Discuss agency adjudicatory power. Place particular emphasis on the role played by
administrative law judges within an agency.
a. Discuss agency adjudicatory procedures and the important role that consent orders
play in an agency‘s enforcement efforts.
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E. Controlling Administrative Agencies
1. Briefly review the controls on agency action that have already been discussed. Then turn
to an examination of the controls that the three traditional branches of government exert
over agency action.
2. Discuss the tools the executive branch may employ in an attempt to control agency action.
important tool for bringing agencies under control.
3. Discuss the Congressional controls over agency action. Note that if Congress and the
and balances.
4. Discuss judicial review of agency action.
Example: Problem Case #5.
1) Note the price at which the streamlining effects of agency discretion and
nonreviewability are purchased: sometimes that discretion will be abused or
poorly exercised. You might want to solicit your students’ views on whether
Problem Case #5 was one of the latter instances.
enforcement under the Reagan FTC and Justice Department had a dramatically
different face from that seen with prior administrations. Many unchallenged
mergers, for instance, would likely have been challenged in prior years. Some
would probably also argue that substantial changes in enforcement policies
agency has abused its discretion. In making the case for this view, Justice
Marshall stated: “The problem of agency refusal to act is one of the pressing
problems of the modern administrative state, given the enormous powers, for both
good and ill, that agency inaction, like agency action, holds over citizens. [T]he
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multifaceted to admit of a single facile solution under which ‘enforcement’
(1985) (Marshall, J., concurring).
b. Discuss the requirement that plaintiffs seeking to challenge agency action must
demonstrate that they have standing to sue. Examples: Problem Case #8; National
approval of land exchange).
c. Discuss the requirements of exhaustion and ripeness.
d. Discuss the bases for attacks on the legality of agency action: (1) ultra vires; (2)
substantial deviation from procedural requirements; (3) unconstitutional; (4) erroneous
interpretation of statute; (5) unsubstantiated by facts before agency.
case discussed below).
Utility Air Regulatory Group v. EPA (p. 1286): The Supreme Court holds that the
EPA exceeded its statutory authority in interpreting the Clean Air Act as requiring
PSD and Title V permits for stationary sources based on their emissions of greenhouse
gases. Although the Court held that greenhouse gases could not be classified as a
other than greenhouse gases.
Points for Discussion: Identify three Clean Air Act elements of importance here:
PSD; Title V; and BACT. (See the discussion of each in the case’s facts.) Note the
Court’s discussion of Massachusetts v. EPA (2007), in which the Court held that Title
II of the Clean Air Act authorized the EPA to regulate greenhouse-gas emissions from
greenhouse gases must be a pollutant for purposes of other portions of the Clean Air
Act dealing with stationary sources. The Court held that this conclusion by the EPA
was erroneous). Note the emphasis placed by the Court on the notion that a word
sometimes will not have the same meaning in different portions of the statute.
greenhouse gases were a pollutant for purposes of those statutory sections and that the
EPA’s tailoring rule (see explanation in the case’s facts) thus lacked proper legal
authority. Note, however, that the Court permitted the EPA‘s treatment of greenhouse
gases as a pollutant for purposes of applying the BACT requirement to “anyway