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Admin Outline - INTRODUCTION What is administrative law o...

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INTRODUCTION - What is administrative law? o Procedural definition: The set of constraints that governs what agencies can do, how they can do things, who can overrule and direct them, and how those decisions get reviewed. o Substantive definition: The content of all the rules that administrative agencies produce. - Why delegate? o Expertise : Agencies are experts in particular areas, since they know more they can create better rules. o Agility and Flexibility : Congress is less efficient, flexible and agile than agencies – getting things done can be slow and difficult. Agencies, on the other hand, are more flexible – they can respond more quickly. o Consistency and insulation : Agencies may be more consistent and more insulated from interest groups because they are not elected and can’t engage in the same type (or at least scope) of political horse-trading as members of Congress. o Political Will Problem : It can be difficult for Congress to reach a consensus or pass “hard laws.” With delegation, Congress can pass a “clean air act” and then leave it to the agency to create the tough air quality rules that will piss people off. In other words, Congress may lack the political will to make sticky and unpopular detailed decisions. o Time : Congress does not have time to pass everything on the agenda, or have time to figure out all of the hard details. - The Non-Delegation Doctrine o Definition: Congress cannot completely delegate its legislative authority to agencies – there must be an intelligible principle to guide the agency. The stakes are quite high, since almost every agency currently depends on a broad delegation of power as their authorization to act. If this doctrine were strictly enforced, then almost every agency would be washed out of existence. A vigorous enforcement would render unconstitutional most of government. o The only year that the Court found that statutes violated the non-delegation doctrine was 1935. In this year, two cases represented the height of non-delegation enforcement: Schechter v. U.S. – Statute gave president power to enact industry codes of conduct, made by industry organizations, for “fair competition” and other rules. Court said problem existed because President had unfettered power to approve and proscribe rules. The statute had no real limits on what the President could do and this was the problem. Panama v.Ryan – Provision of NIRA (same statute as in Schechter ) gave President power to prohibit transport of petroleum of certain amount. Court said this was a complete delegation of power by Congress and wrong. o Current Status of Non-Delegation: Hard to imagine a delegation that would not survive. Modern cases typically uphold legislative delegations by finding that Congress has set an “intelligible principle” or a “primary standard” for the agency to follow. In doing so, it has made the fundamental policy decisions which the agency will then implement.
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