C H A P T E R 6
ADMINISTRATIVE LAW
This chapter examines the role of administrative agencies in the legal environment,
how they function, exercise power and carry out procedures on a daily basis.
I. HOW ADMINISTRATIVE AGENCIES ACT.
A. Making Rules. State legislatures and Congress frequently pass
authority to administrative agencies to carry out oversight and
regulation.
1. Notice to the Public. First an agency must give public notice
of its proposal, and allow time for written public comment to
the proposal.
B. Conducting Formal Adjudications. Congress allows administrative
hearings to expedite conflicts and legal questions about government
practices and procedures.
II. ADMINISTRATIVE AGENCIES AND THE CONSTITUTION.
A. Separation of Powers. Administrative agencies (part of the executive
branch) both create rules and issue judgments raising concerns about
improper usurpations of power.
CASE 6.1 Free Enterprise Fund v. Public Company Accounting
Oversight Board, 130 S.Ct. 3138 (2010).
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B. Delegation of Authority. Legislatures may delegate some of their
authority to administrative agencies. However Congressional
guidance or policy and standards must be clear.
C. Limits Imposed by the Bill of Rights. The Bill of Rights regulates
agency operations.
1. Self-Incrimination.
III. PRINCIPLES OF ADMINISTRATIVE LAW.
A. Choice of Approach. In the absence of congressional direction, an
agency can promulgate general rules or act on a case by case basis.
IV. JUDICIAL REVIEW OF AGENCY ACTIONS. Generally, agencies have discretion
to act, and courts may not review such discretionary decisions and actions.
A. Review of Rule Making and Informal Discretionary Actions. Courts
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CASE 6.2 Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
Subscribers of Comcast’s internet service notices the
company was interfering with the peer-to-peer
B. Review of Factual Findings. Courts will defer to an agency’s
reasonable determinations of the facts.
CASE 6.3 Massachusetts v. Environmental Protection Agency,
127 S.Ct. 1438 (2007). A coalition of states, including
Massachusetts, and other private environmental groups
D. Limited Review of Procedures. Absent compelling circumstances,
agencies are given great deference.
E. No right to Probe the Mental Processes of the Agency.
F. Timing of Review.
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G. Standing to Sue. One may only sue if: (i) he has suffered or is likely
CASE 6.3 Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003). Baur, a
citizen, beef eater, was concerned that the head of the
U.S. Department of Agriculture, Ann Veneman,
V. DECISION-MAKING POWER OF AGENCIES. Certain principles limit and guide
the regulatory power of administrative agencies.
A. Only Delegated Powers. Administrative agencies are allowed to do
what Congress allows.
VI. FINDING AN AGENCY’S OWN RULES. Though documents like the Federal
Register and the Code of Federal Regulations provide guidance about
VII. OBTAINING DOCUMENTS FROM AN AGENCY.
A. The Freedom of Information Act (FOIA) authorizes any one to request
records of the federal government.
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B. Not all government documents are available to the public, such as:
diplomatic communiqués, personnel files, military and national
VIII. IN BRIEF: SEVEN BASIC STEPS FOR WORKING SUCCESSFULLY WITN AN
ADMINISTRATIVE AGENCY. Managers must deal with regulatory agencies at
the state and federal level. By following the “seven steps” managers can be
successful
1. Identify agency standards and rules.
2. Identify the agency’s formal structure.
RESPONSIBLE MANAGERS: TEACHING SUGGESTIONS
1. Are Freddie Mac and Fannie Mae administrative agencies? If not, what are
they? Are they constitutional? Who are they accountable to? Where are the
rules and policies posted for these governmental “agencies”?