The governing the forms, functions, and activities of government agencies.

imposes procedural requriements or other obligations on all federal agencies unless they have a statutory exemption

Congress is given the authority to create agenices through:

the necessary and proper clause

Article 1, Section 8, Clause 18

Presidential Power

Article 2, Section 2, Clause 2

organic acts created by congress

and the Administrative Procedure Act (APA)

If the organic act does not cover agency action, then the agency action is covered by the APA

APA Defined Administrative Agency

Section 551

An authority of the government of the United States, whether or not it is within or subject to reveiw by another agency

Does Not Include:

- Congress, the courts of the United States, the govt's of the territories or possessions of the United States, govt of DC, Agencies composed of representatives of the parties or of representatives of organizations of the parites to the disputes determined by them, court martials and military commissions, military authority exercised in the field in time of war or in occupied territory, sections conferred in different sections of the APA

Typically executive agencies (means that there is one person in charge of the entire agency)

falls under the executive with cabinet level agencies which gives the president unlimited removal power in his sole disrection

Typically Independent Agencies -- run by boards or commissions, most regulate economic activity

insulated from presidential control

Removal -- insulated from presidential control that apply to normal executive agencies

• they have tenure in office and removal by misconduct or cause

APA Defined:

Prospective

Force of Law (binding law)

Has to be general

An agency statement

(Remember: Paul Freed Girl Scouts)

Types:

Formal and Informal

Final disposition other than rulemaking

INCLUDES LICENSING

Particular and immediate

Results from adjudication:

proceedings can be formal and informal

order have no procedural requirements

if it is characterized as a rule then procedural requirements will apply

If it is a:

• generality (more likely to be a rule) and prospectively (imminent impact on parties)
• The more prospecitve, the more likely it is a rule

TEXT PLUS

the text of the law is important, but so are other avenues

JUST TEXT

The laws text is written down and that is all that matters

Non Delegation Defined:

3 branches of govt cannot delegate their constitutional power to others, but they still do.

The Delegation Continuum -- how much authority has been delgated to an administrative agency

Early SC cases only permitted CONDITIONAL LEGLISLATION

First Congress: any proper person Congress felt that they could make a fair amount of digression to the Prez that they felt was necessary

Second Congress: if Congress gave narrow digression then the court would uphold it

Conditional language is okay.

Gave the president one choice in an area where you cna mkae firm judgment and this was power that can be delegated

The fact that the presidnet gets to make unreasonable trade restrictions does not give a large amount of power to him and therefore the court rejected the delegation challenge

Congress can enact legislation on the effect of which depends on the presidents determination that a named contigency exists

Intelligible Prinicpal Test

(developed in: J.W. Hampton v. U.S.)

If Congress shall lay down by legislative act an intelligible principal to which the person or body authorized to fix such rates is direct to conform, such legistalive action is not forbidden delgation of legislative power

an intelligible principal can be as broad as in public interest

only 2 cases have ever been overturned by the court of having too much delegation

For Congress to fulfill its legislative function effectively, it must be able to leave details to the agenices

If the question is whether Congress has given too much discretion, the court will rule no except:

1. wherer it involes the entire economy

2. unlimited discretion

3. rule of contruction

4. if the case is close to the line, the court will employ a rule of construction to limit the delegation

Almost nothing:

schecter polutry

- cannot delegate the power of the entire economy

- there have been no limits on the President's discretion

- Rules of construction

If there is a delegation that plausibly could be read to be an unconstitutional delegation, it is mechanism that there are no successful non-delegation challenges.

Legislative Veto

Statutory Overrides

Appropriations

Used to be a way of control over the agencies

However, it has been overturned and can no longer be used because on many occassions it lack bicameralsim (they would allow a one house veto) and it lacked the president's signature (a requirement to make anyting law)

President Nominates, Senate Confirms

• they are a officer of the united states if the senate has to confirm them

OR

Preisdent, Courts of Law or heads of deparement can appoint agency personnel

• they are an inferior officer if appointed this way
• do not need senate confirmation

Are they an officer or an employee?

Test

An officer: exercises significant legal authority

an employee: handles ministerial/functionary things

Congress Cannot:

1. appoint administrative officials

2. have members of congress serve on adminstrative bodies

3. control the removal of agency officials

4. exercise their legislative veto over administartive action unless both houses and the president are involved