Administrative Law - Stack - Spring 2004 (2)

Administrative Law - Stack - Spring 2004 (2) - 1 A...

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Unformatted text preview: 1 A DMINISTRATIVE L AW O UTLINE I. Introduction A. Why Delegate? s Expertise: Agencies are experts in particular areas, since they know more they can create better rules. s 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. s 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. s Consensus (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. s Time: Congress does not have the time to figure out all of the details. B. The Administrative Process Can Be Tailored to Achieve These Goals What process could be imposed to achieve the goal of flexibility? Vest a lot of authority in the agencies and don’t impose too many procedural hoops. How would you design the process to protect it from private interests? Make it insulated. How would you design the process to deal with the “lack of political will problem,” but still keep the interest groups happy? Give the interest groups access. b M AXIM : T HERE IS A RELATIONSHIP BETWEEN YOUR THEORY ( REASON ) FOR DELEGATION AND THE KIND OF ADMINISTRATIVE PROCEDURE YOU WILL REQUIRE OF AN AGENCY . 2 II. The Constitutional Status of the Agency – The Constitutional Structure and the Administrative State “Our first substantive task will be to understand the constitutional status of administrative agencies. We will confront two central issues: delegation and control. We will look at the conditions under which Congress can delegate power to agencies, the constitutional authority of the President to control agencies, the constitutional authority of the Congress to direct agency behavior in ways other than enacting new legislation, and the preview role of the Court directing agency behavior. The questions in this section of the course will be our most abstract and foundational.” A. The Nondelegation Doctrine 1. What is the Nondelegation Doctrine? The general idea is that Congress cannot completely delegate legislative (decision making) authority to an administrative agency – there must be an intelligible principle to guide the agency. 2. The Stakes In reality, most agencies function under a broad delegation of power. This means that strong enforcement of the doctrine would essentially eviscerate many agencies....
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This note was uploaded on 02/14/2008 for the course LAW 7521 taught by Professor Stack during the Spring '04 term at Yeshiva.

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Administrative Law - Stack - Spring 2004 (2) - 1 A...

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