CHAPTER 1
INTRODUCTION TO
ADMINISTRATIVE LAW
CHAPTER OBJECTIVES Post New Deal and Adoption of Administrative Pro-
cedure Act (APA)—1946
After reading this chapter, you should be able to:
Modern Era—1960–present
• Demonstrate a basic understanding of the role Types of Agencies
that administrative agencies play in U.S. society.
Executive Department or Cabinet Level
• Understand how and why agencies are created.
Subcabinet
• Explain where administrative agencies function
within the federal and state systems. Independent-Agency Type of Commission/Board Type
• Trace the historical background that shaped the Regulatory, Social Welfare, Ratemaking
development of administrative agencies. What Agencies Don’t Do
• Categorize the types of administrative agencies.
• Examine the areas of law that come within the TEACHING SUGGESTIONS AND
scope of administrative law. TEACHING TIPS FOR LECTURES
1. Chapter 1 starts out with plain, easy to under-
stand language in order to ease the students into
CHAPTER OUTLINE the study of administrative law. In the first lec-
Introduction to Administrative Law ture, it is a good idea to bring the study of ad-
ministrative law down to a practical and per-
Administrative Law and the Constitution
sonal level. Everyone in the class will have an
Administrative Law and Separation of Powers experience with an agency. Ask about the stu-
Administrative Law and Federalism dents’ experience and use the responses to get
Administrative Law and Administrative Agency Defined into the chapter.
Creation of Agencies, Issues of Separation of Powers, 2. Exhibit 1 lists a variety of issues and the agencies
and Delegation that would respond. This can be a source of dis-
cussion. For instance, Exhibit 1-1 lists FEMA as an
Agency Discretion
agency that responds to a hurricane. Ask the stu-
Procedural Law and Substantive Law dents to list some other agencies, federal and in
Sources of Administrative Law their state, that would respond to a hurricane.
The Constitution Exhibit 1-6 can be used here also. Remind the
students that administrative agencies are part of
Statutes
the government. Ask the students to name some
Common Law agencies and discern if they are private or public
Executive Orders entities.
Rules or Regulations 3. It is never too early to get the students comfortable
Brief Historical Overview with the names of the agencies and their acronyms.
Exhibit 1-1 can be a start in that direction.
Early Years of the Country—1789–1870s
4. One of the first challenges is to come to grips
Populist Era—1870s–1890s
with the multitude of names, the sheer number of
Progressive Era—1890s–1920s agencies and their functions, and the fact that
Depression and New Deal—1920s–1930s there are agencies at the local, state, and federal
1
,2 INSTRUCTOR’S MANUAL
levels. Many of the exhibits in the chapter can be Industrial Union is excerpted in the text. These
used to overcome this obstacle by getting the stu- cases are used to illustrate the principle that the
dents used to hearing the names of the agencies modern Supreme Court does not strike down
and discerning their functions. statutes on the basis of illegal delegation but will
5. The text next discusses administrative law in the often construe a statute (as it did in the benzene
context of the U.S. Constitution. Exhibit 1-2 is a case) to avoid a finding of illegal delegation.
good way for the students to see the entire These cases also get into the issue of feasibility
structure of the federal government and where and cost-benefit analysis. Amalgamated Meat
agencies fit. This can lead to a discussion of some Cutters and Butcher Workmen v. Connally is also
basic constitutional law principles such as sepa- excerpted in the text.
ration of powers, checks and balances, the pow- 11. Depending on time, the instructor can get into
ers of the three branches, and federalism. Note some of the U.S. Supreme Court cases surround-
Exhibit 1-3 which lists the powers of the federal ing the development of administrative agencies.
and state governments. This can lead into a dis- See Exhibit 1-10 for background. Historical back-
cussion on how agencies are the “headless fourth ground is also provided. See Exhibit 1-11 for his-
branch of government.” torical background.
6. As you review the three branches and their pow- 12. Exhibit 1-12 shows the president’s cabinet with
ers, ask the students to reconcile that our consti- subagencies, and Exhibit 1-13 is the organization
tutional system is based on a separation of pow- of the Department of Justice. Take the time to go
ers with checks and balances—yet we allow over these exhibits to illustrate the variety and
agencies to possess a form of legislative, execu- vastness of the federal agencies. Exhibit 1-14 is a
tive, and judicial power. See Exhibit 1-4; this can listing of agencies in the Pennsylvania govern-
lead to a discussion of delegation of power, the ment. You can have the students obtain a similar
enabling act, and how the U.S. Supreme Court list in their state.
has struggled with this issue. Point out now in a 13. See Exhibit 1-15, which outlines the various types
general manner that there are controls in place to of agencies.
control agencies. The controls are the subject of
14. It is a good idea from time to time to remind the
Chapter 6, Judicial Control of Administrative
students of the limits of administrative law. See
Agencies; Chapter 7, Legislative Control of Ad-
Exhibit 1-16, which compares administrative law,
ministrative Agencies; and Chapter 8, Executive
private disputes, and criminal law.
Control of Administrative Agencies.
7. Point out that discretion is a cornerstone of ad-
ministrative law. Discretion is introduced in this ANSWERS TO REVIEW QUESTIONS
chapter. Discretion is covered in detail in Chap-
1. Give some reasons for the importance of admin-
ter 6 and to a much lesser extent in Chapter 7.
istrative law.
8. After covering some of the constitutional aspects,
Administrative law is important because govern-
the chapter gives a definition of administrative
ment agencies issue regulations that have the
law and agency. You can make a choice to lead
force of law in virtually all aspects of society. Vir-
with this material. Exhibit 1-5 gives a broad rea-
tually no part of U.S. society is unaffected by reg-
son for the existence of agencies which can be
ulations.
greatly expanded upon.
9. Exhibit 1-7 can be used to show how the Depart- 2. List and briefly describe the powers possessed
ment of Homeland Security was created through by agencies.
the enabling act. Exhibit 1-8 is the organizational Most agencies have legislative power—power to
chart for the Department of Homeland Security. pass regulations that have the force of law;
10. Exhibit 1-9 gives an overview of the delegation executive power—power to enforce regulations;
and nondelegation terminology and then leads and judicial power—power to adjudicate as to
into a discussion of delegation, followed by Ex- whether a regulation has been violated.
hibit 1-10, which gives a synopsis of key U.S. 3. How are agencies created?
Supreme Court cases on delegation. Note that the
Agencies are created by a legislative body
text refers to Industrial Union v. American Pe-
through the passage of an enabling act.
troleum Institute (the benzene case) and Ameri-
can Textile Manufactures Institute v. Donovan. 4. Discuss the delegation and nondelegation doctrine.
,CHAPTER 1 INTRODUCTION TO ADMINISTRATIVE LAW 3
Delegation can be seen as the transfer of power limits and requirements of a valid delegation of
by Congress to an administrative agency. Be- power to an administrative agency.
cause Article I of the U.S. Constitution vests leg-
5. What is agency discretion?
islative power in Congress, constitutional issues
have been raised to the legitimacy of administra- Discretion is the ability possessed by agencies to
tive agencies. The nondelegation doctrine recog- make choices in the way they do their work.
nizes this dilemma and concerns itself with the
6. State the historical eras that have characterized the development of administrative law.
ERA MAJOR FEATURE
Early Years of the Country—1789–1870s Very little regulation by the federal government or the
states.
Populist Era—1870s–1890s States attempt to regulate business, especially the
railroads.
Progressive Era—1890s–1920s Federal government attempts to regulate corporations
and monopolies.
Depression and New Deal—1920s–1930s New Deal legislation creates numerous agencies.
Post New Deal and Adoption of Administrative Congress passes the Administrative Procedure Act (APA)
Procedure Act (APA)—1946 1946 to institute uniformity in agency functions.
Modern Era—1960–present Creation of numerous agencies in areas of
environmental protection, worker safety, consumerism,
and antidiscrimination.
7. What are some of the various types of agencies?
Types of Agencies Independent—Two Types
Executive Departments 1. Commission or Board
Consumer Product Safety Commission (CPSC)
Cabinet Level—Political Appointments by
(regulatory)
President and Must Be Approved by Senate
Equal Employment Opportunity Commission
Department of Health and Human Services
(EEOC) (regulatory)
(HHS) (Cabinet)
Centers for Disease Control (CDC) (subcabinet) 2. Agency headed by One Person, Called an
Administrator
Food and Drug Administration (FDA) (subcabinet
and regulatory) Environmental Protection Agency (EPA) (reg-
ulatory)
Department of the Interior (Cabinet)
Generally, members of independent agencies
National Park Service (subcabinet)
serve fixed terms and cannot be removed except
Department of Justice (DOJ) (Cabinet) for cause.
Drug Enforcement Agency (DEA) (subcabinet)
8. Describe the scope of administrative law.
Federal Bureau of Investigation (FBI) (subcabinet)
Administrative law involves issues between an
Department of Treasury (Cabinet) individual or business concerning the issuance
Bureau of Alcohol, Tobacco and Firearms (ATF) of regulations, enforcement of regulations, and
(regulatory) the adjudication of regulations. Administrative
Internal Revenue Service (IRS) (regulatory) law does not involve civil disputes between
individuals, nor does it involve the criminal
Department of Labor (Cabinet)
law.
Occupational Safety and Health Administration
(OSHA) (subcabinet and regulatory)
, 4 INSTRUCTOR’S MANUAL
MORE INFORMATION Patent and Trademark Office (PTO)
1. Go to http://thomas.loc.gov. Scroll down to Technology Administration (TA)
Government Resources and click. Then click on 4. In 2004, Congress established a new agency
Executive Branch. You can then click on the called the Office of the Director of National In-
various agencies and subagencies of the federal telligence. To obtain the enabling act which cre-
government. ated this agency and other information, go to
2. While on http://thomas.loc.gov, click on Legisla- http://thomas.loc.gov.
tive Process to see a detailed account of how a Select the 108th Congress.
bill becomes a law. Do a bill search for S. 2845.
A. Who was the main sponsor of this bill?
ANSWERS TO PRACTICAL Senator Collins
APPLICATIONS B. What was the last major action on the bill?
1. Go to your state’s Web site and do the following: Became Public Law 108-458
A. Note the agencies of the government and
their functions.
INTERNET EXERCISES FOR MANUAL
Answers will vary depending on the state.
1. To obtain a detailed analysis on how a bill be-
B. List all the agencies that are considered part
comes a law, go to http://thomas.loc.gov/home/
of the governor’s cabinet.
lawsmade.toc.html.
Answers will vary depending on the state.
2. Go to the Web site of the Bureau of Reclamation
C. Make a list of the various independent at http://www.usbr.gov.
agencies.
A. Under what Department is this Bureau?
Answers will vary depending on the state.
Department of the Interior
2. Go to the Web site for the Department of the
B. State the top two priorities for the Bureau of
Interior at http://www.doi.gov and answer the
Reclamation. Click on the link “About Us”
following:
and then click on “Fact Sheet.”
Name five subagencies that are included in the
The Bureau of Reclamation priorities are to:
Department of Interior.
• Operate and maintain projects in a safe
Bureau of Reclamation
and reliable manner, protecting the
U.S. Fish and Wildlife Service health and safety of the public and Recla-
National Park Service mation employees.
Bureau of Land Management • Ensure continued delivery of water and
Minerals Management Service power benefits consistent with environ-
mental and other requirements.
3. Go to the Web site of the Department of Com-
merce at http://www.commerce.gov. • Honor state water rights, interstate com-
pacts, and contracts to Reclamation users.
Name five subagencies that are included in the
Department of Commerce. • Play an important role in meeting increas-
ing demands for finite water resources.
Economics and Statistics Administration (ESA)
• Enhance effectiveness in addressing com-
Bureau of the Census
plex water management issues in the West.
Bureau of Economic Analysis (BEA)
Economic Development Administration (EDA) 3. The Congress in September 2001 delegated
power to the President to use force against those
International Trade Administration (ITA)
who attacked the United States on September 11,
Minority Business Development Agency (MBDA) 2001. To read the resolution that delegated the
National Oceanic & Atmospheric Administration power to the President, go to http://thomas.
(NOAA) loc.gov.
National Telecommunications and Information Put in a search for the 107th Congress “authorization
Administration (NTIA) for the use of military force SJ Res 23.”
INTRODUCTION TO
ADMINISTRATIVE LAW
CHAPTER OBJECTIVES Post New Deal and Adoption of Administrative Pro-
cedure Act (APA)—1946
After reading this chapter, you should be able to:
Modern Era—1960–present
• Demonstrate a basic understanding of the role Types of Agencies
that administrative agencies play in U.S. society.
Executive Department or Cabinet Level
• Understand how and why agencies are created.
Subcabinet
• Explain where administrative agencies function
within the federal and state systems. Independent-Agency Type of Commission/Board Type
• Trace the historical background that shaped the Regulatory, Social Welfare, Ratemaking
development of administrative agencies. What Agencies Don’t Do
• Categorize the types of administrative agencies.
• Examine the areas of law that come within the TEACHING SUGGESTIONS AND
scope of administrative law. TEACHING TIPS FOR LECTURES
1. Chapter 1 starts out with plain, easy to under-
stand language in order to ease the students into
CHAPTER OUTLINE the study of administrative law. In the first lec-
Introduction to Administrative Law ture, it is a good idea to bring the study of ad-
ministrative law down to a practical and per-
Administrative Law and the Constitution
sonal level. Everyone in the class will have an
Administrative Law and Separation of Powers experience with an agency. Ask about the stu-
Administrative Law and Federalism dents’ experience and use the responses to get
Administrative Law and Administrative Agency Defined into the chapter.
Creation of Agencies, Issues of Separation of Powers, 2. Exhibit 1 lists a variety of issues and the agencies
and Delegation that would respond. This can be a source of dis-
cussion. For instance, Exhibit 1-1 lists FEMA as an
Agency Discretion
agency that responds to a hurricane. Ask the stu-
Procedural Law and Substantive Law dents to list some other agencies, federal and in
Sources of Administrative Law their state, that would respond to a hurricane.
The Constitution Exhibit 1-6 can be used here also. Remind the
students that administrative agencies are part of
Statutes
the government. Ask the students to name some
Common Law agencies and discern if they are private or public
Executive Orders entities.
Rules or Regulations 3. It is never too early to get the students comfortable
Brief Historical Overview with the names of the agencies and their acronyms.
Exhibit 1-1 can be a start in that direction.
Early Years of the Country—1789–1870s
4. One of the first challenges is to come to grips
Populist Era—1870s–1890s
with the multitude of names, the sheer number of
Progressive Era—1890s–1920s agencies and their functions, and the fact that
Depression and New Deal—1920s–1930s there are agencies at the local, state, and federal
1
,2 INSTRUCTOR’S MANUAL
levels. Many of the exhibits in the chapter can be Industrial Union is excerpted in the text. These
used to overcome this obstacle by getting the stu- cases are used to illustrate the principle that the
dents used to hearing the names of the agencies modern Supreme Court does not strike down
and discerning their functions. statutes on the basis of illegal delegation but will
5. The text next discusses administrative law in the often construe a statute (as it did in the benzene
context of the U.S. Constitution. Exhibit 1-2 is a case) to avoid a finding of illegal delegation.
good way for the students to see the entire These cases also get into the issue of feasibility
structure of the federal government and where and cost-benefit analysis. Amalgamated Meat
agencies fit. This can lead to a discussion of some Cutters and Butcher Workmen v. Connally is also
basic constitutional law principles such as sepa- excerpted in the text.
ration of powers, checks and balances, the pow- 11. Depending on time, the instructor can get into
ers of the three branches, and federalism. Note some of the U.S. Supreme Court cases surround-
Exhibit 1-3 which lists the powers of the federal ing the development of administrative agencies.
and state governments. This can lead into a dis- See Exhibit 1-10 for background. Historical back-
cussion on how agencies are the “headless fourth ground is also provided. See Exhibit 1-11 for his-
branch of government.” torical background.
6. As you review the three branches and their pow- 12. Exhibit 1-12 shows the president’s cabinet with
ers, ask the students to reconcile that our consti- subagencies, and Exhibit 1-13 is the organization
tutional system is based on a separation of pow- of the Department of Justice. Take the time to go
ers with checks and balances—yet we allow over these exhibits to illustrate the variety and
agencies to possess a form of legislative, execu- vastness of the federal agencies. Exhibit 1-14 is a
tive, and judicial power. See Exhibit 1-4; this can listing of agencies in the Pennsylvania govern-
lead to a discussion of delegation of power, the ment. You can have the students obtain a similar
enabling act, and how the U.S. Supreme Court list in their state.
has struggled with this issue. Point out now in a 13. See Exhibit 1-15, which outlines the various types
general manner that there are controls in place to of agencies.
control agencies. The controls are the subject of
14. It is a good idea from time to time to remind the
Chapter 6, Judicial Control of Administrative
students of the limits of administrative law. See
Agencies; Chapter 7, Legislative Control of Ad-
Exhibit 1-16, which compares administrative law,
ministrative Agencies; and Chapter 8, Executive
private disputes, and criminal law.
Control of Administrative Agencies.
7. Point out that discretion is a cornerstone of ad-
ministrative law. Discretion is introduced in this ANSWERS TO REVIEW QUESTIONS
chapter. Discretion is covered in detail in Chap-
1. Give some reasons for the importance of admin-
ter 6 and to a much lesser extent in Chapter 7.
istrative law.
8. After covering some of the constitutional aspects,
Administrative law is important because govern-
the chapter gives a definition of administrative
ment agencies issue regulations that have the
law and agency. You can make a choice to lead
force of law in virtually all aspects of society. Vir-
with this material. Exhibit 1-5 gives a broad rea-
tually no part of U.S. society is unaffected by reg-
son for the existence of agencies which can be
ulations.
greatly expanded upon.
9. Exhibit 1-7 can be used to show how the Depart- 2. List and briefly describe the powers possessed
ment of Homeland Security was created through by agencies.
the enabling act. Exhibit 1-8 is the organizational Most agencies have legislative power—power to
chart for the Department of Homeland Security. pass regulations that have the force of law;
10. Exhibit 1-9 gives an overview of the delegation executive power—power to enforce regulations;
and nondelegation terminology and then leads and judicial power—power to adjudicate as to
into a discussion of delegation, followed by Ex- whether a regulation has been violated.
hibit 1-10, which gives a synopsis of key U.S. 3. How are agencies created?
Supreme Court cases on delegation. Note that the
Agencies are created by a legislative body
text refers to Industrial Union v. American Pe-
through the passage of an enabling act.
troleum Institute (the benzene case) and Ameri-
can Textile Manufactures Institute v. Donovan. 4. Discuss the delegation and nondelegation doctrine.
,CHAPTER 1 INTRODUCTION TO ADMINISTRATIVE LAW 3
Delegation can be seen as the transfer of power limits and requirements of a valid delegation of
by Congress to an administrative agency. Be- power to an administrative agency.
cause Article I of the U.S. Constitution vests leg-
5. What is agency discretion?
islative power in Congress, constitutional issues
have been raised to the legitimacy of administra- Discretion is the ability possessed by agencies to
tive agencies. The nondelegation doctrine recog- make choices in the way they do their work.
nizes this dilemma and concerns itself with the
6. State the historical eras that have characterized the development of administrative law.
ERA MAJOR FEATURE
Early Years of the Country—1789–1870s Very little regulation by the federal government or the
states.
Populist Era—1870s–1890s States attempt to regulate business, especially the
railroads.
Progressive Era—1890s–1920s Federal government attempts to regulate corporations
and monopolies.
Depression and New Deal—1920s–1930s New Deal legislation creates numerous agencies.
Post New Deal and Adoption of Administrative Congress passes the Administrative Procedure Act (APA)
Procedure Act (APA)—1946 1946 to institute uniformity in agency functions.
Modern Era—1960–present Creation of numerous agencies in areas of
environmental protection, worker safety, consumerism,
and antidiscrimination.
7. What are some of the various types of agencies?
Types of Agencies Independent—Two Types
Executive Departments 1. Commission or Board
Consumer Product Safety Commission (CPSC)
Cabinet Level—Political Appointments by
(regulatory)
President and Must Be Approved by Senate
Equal Employment Opportunity Commission
Department of Health and Human Services
(EEOC) (regulatory)
(HHS) (Cabinet)
Centers for Disease Control (CDC) (subcabinet) 2. Agency headed by One Person, Called an
Administrator
Food and Drug Administration (FDA) (subcabinet
and regulatory) Environmental Protection Agency (EPA) (reg-
ulatory)
Department of the Interior (Cabinet)
Generally, members of independent agencies
National Park Service (subcabinet)
serve fixed terms and cannot be removed except
Department of Justice (DOJ) (Cabinet) for cause.
Drug Enforcement Agency (DEA) (subcabinet)
8. Describe the scope of administrative law.
Federal Bureau of Investigation (FBI) (subcabinet)
Administrative law involves issues between an
Department of Treasury (Cabinet) individual or business concerning the issuance
Bureau of Alcohol, Tobacco and Firearms (ATF) of regulations, enforcement of regulations, and
(regulatory) the adjudication of regulations. Administrative
Internal Revenue Service (IRS) (regulatory) law does not involve civil disputes between
individuals, nor does it involve the criminal
Department of Labor (Cabinet)
law.
Occupational Safety and Health Administration
(OSHA) (subcabinet and regulatory)
, 4 INSTRUCTOR’S MANUAL
MORE INFORMATION Patent and Trademark Office (PTO)
1. Go to http://thomas.loc.gov. Scroll down to Technology Administration (TA)
Government Resources and click. Then click on 4. In 2004, Congress established a new agency
Executive Branch. You can then click on the called the Office of the Director of National In-
various agencies and subagencies of the federal telligence. To obtain the enabling act which cre-
government. ated this agency and other information, go to
2. While on http://thomas.loc.gov, click on Legisla- http://thomas.loc.gov.
tive Process to see a detailed account of how a Select the 108th Congress.
bill becomes a law. Do a bill search for S. 2845.
A. Who was the main sponsor of this bill?
ANSWERS TO PRACTICAL Senator Collins
APPLICATIONS B. What was the last major action on the bill?
1. Go to your state’s Web site and do the following: Became Public Law 108-458
A. Note the agencies of the government and
their functions.
INTERNET EXERCISES FOR MANUAL
Answers will vary depending on the state.
1. To obtain a detailed analysis on how a bill be-
B. List all the agencies that are considered part
comes a law, go to http://thomas.loc.gov/home/
of the governor’s cabinet.
lawsmade.toc.html.
Answers will vary depending on the state.
2. Go to the Web site of the Bureau of Reclamation
C. Make a list of the various independent at http://www.usbr.gov.
agencies.
A. Under what Department is this Bureau?
Answers will vary depending on the state.
Department of the Interior
2. Go to the Web site for the Department of the
B. State the top two priorities for the Bureau of
Interior at http://www.doi.gov and answer the
Reclamation. Click on the link “About Us”
following:
and then click on “Fact Sheet.”
Name five subagencies that are included in the
The Bureau of Reclamation priorities are to:
Department of Interior.
• Operate and maintain projects in a safe
Bureau of Reclamation
and reliable manner, protecting the
U.S. Fish and Wildlife Service health and safety of the public and Recla-
National Park Service mation employees.
Bureau of Land Management • Ensure continued delivery of water and
Minerals Management Service power benefits consistent with environ-
mental and other requirements.
3. Go to the Web site of the Department of Com-
merce at http://www.commerce.gov. • Honor state water rights, interstate com-
pacts, and contracts to Reclamation users.
Name five subagencies that are included in the
Department of Commerce. • Play an important role in meeting increas-
ing demands for finite water resources.
Economics and Statistics Administration (ESA)
• Enhance effectiveness in addressing com-
Bureau of the Census
plex water management issues in the West.
Bureau of Economic Analysis (BEA)
Economic Development Administration (EDA) 3. The Congress in September 2001 delegated
power to the President to use force against those
International Trade Administration (ITA)
who attacked the United States on September 11,
Minority Business Development Agency (MBDA) 2001. To read the resolution that delegated the
National Oceanic & Atmospheric Administration power to the President, go to http://thomas.
(NOAA) loc.gov.
National Telecommunications and Information Put in a search for the 107th Congress “authorization
Administration (NTIA) for the use of military force SJ Res 23.”
