Brandeis University

Professor Peter Woll's

Administrative Law- On Line

Politics 117a

Welcome to Politics 117a On-Line. All the information that you will need is linked to Administrative Law Online. Note also the course syllabus.

Introduction to Administrative Law

Creation of Agencies

Congress Passes the Buck

The Role of Courts in the Administrative Process

The Scope of Judicial Review

Problems with Statutory Vagueness

Procedural Requirements for Agency Proceedings


How to Brief a Case

Example of a Case Brief

Week I


Strauss et al

Gellhorn and Byse’s Administrative Law

10th ed. Revised

CHAPTER I An Introduction to Administrative Law 1


1. An Introductory Problem l

2. The Basics 7

3. The Development of the Administrative State 13

Robert L. Rabin, Feder:al Regulation in Historical Perspective 13

Notes 23

4. Perspectives on the Enterprise of Administrative Law 26

A Note on Teaching and Studying Administrative Law from This Casebook 34

Week 1

Before you begin reading case materials you should familiarize yourself with the readings and analysis in chapter one on the rise of the administrative process.

Congress created administrative agencies in response to political demands for regulation. Groups of all kinds went to Capitol Hill to have regulatory agencies established to protect their interests. For example farm groups demanded in the early 1880s a national regulatory body to protect farm product shippers against the predatory rate practices of the dominant railroads. They wanted the government, through the Interstate Commerce Commission, to "regulate" rates. Congress passed the Interstate Commerce Act creating an Interstate Commerce Commission in 1887. In 1914 Congress created the Federal Trade Commission to prevent restraints of trade and deceptive business practices. The FTC also was charged with enforcing the Sherman Act as were all regulatory agencies that regulated business. Originally only the Justice Department enforced the Sherman Act through the courts.

More recently students are familiar with the Nuclear Regulatory Commission, the Consumer Products Safety Commission, the Envronmental Protection Agency (created by President Nixon through an executive order to provide a mechanism to enforce the Environmental Protection Act of 1968), and the National Transportation Safety Board that regulates airline safety along with the FAA.

Now here is the rub in a nutshell. Here is the essence of the political and legal dimensions of administrative law. Congress in the regulatory process has passed the political buck to the agencies to resolve group conflict through rule-making and adjudication . Agencies make policy through rule-making and resolve specific disputes through adjudication. Congress is the principal and the agencies its agents. Congress establishes vague guidelines for the agencies to follow but does not spell out the specifics. Therefore the agencies have discretion to choose what if any policy course will be undertaken, and what if any enforcement actions will be taken against specific parties within their regulatory sphere.

Wait, there is more! Congress has given the courts, specifically the federal Courts of Appeals and only sometimes the federal District Courts, jurisdiction over agency actions. Jurisdiction to do what? The courts hear appeals from individual parties and persons (there is a difference) who can legitimately claim agency actions have injured or aggrieved them. What do the courts do after they have determined that a party has met the conditions statutes or the common law require for a justiciable case and controversy? To put it another way, an injured party or aggrieved person within the meaning of the Administrative Procedure Act of 1946 or the relevant statute, must establish to the reviewing court,s satisfaction that the agency has acted "illegally." What defines illegality? Lawyers for the appellants go to "the law," constitutional (rarely), statutory (usually), or common law to find the legal boundaries of agency discretion.

Here is what the courts review under the APA to decide the legality of agency action.

. Scope of Review of Administrative Action

First review #706 of the APA which directs reviewing courts to:

Compel agency action unlawfully withheld or unreasonably delayed.

Hold unlawful agency action found to be:

a. arbitrary, capricious, an abuse of discretion;

b. unconstitutional;

c. ultra vires the statute;

d. without observance of procedure required by law;

e. unsupported by substantial evidence in formal proceedings required by law ( statute and APA);

f. unwarranted by facts where the facts are subject to de novo court review.

We will see that #706 standards for judicial review give the courts much leeway to define what in fact constitutes illegality, because Congress gives little guidance in statutory law. Congress delegates broad discretionary authority to the agencies to regulate through rule-making and adjudication. It does this for several reasons. First, Congress politically has an incentive to pass on to the agencies the responsibility to resolve group conflict. Second, Congress cannot itself regulate. Statutory law is static, regulation is dynamic, requiring continuous actions that must constantly be adjusted to changing conditions.

While Congress in statutory law gives little guidance to the courts in substantive policy it does make up for this somewhat by requiring agencies to follow certain procedures in decision making. Both agency enabling statutes and the APA require agencies to follow defined procedures in informal rule making and in formal rule-making and adjudication. What is called notice and comment procedures define informal rule making (see APA #553). Informal adjudication is not mentioned . The only possibly relevant APA provision regarding informal adjudication requires agencies to give notice of the denial of a written application in connection with any agency proceeding and provide a brief statement of the grounds for the denial. APA #555(e). In effect the APA does not define nor cover informal adjudication .


Regulatory agencies remain even after "deregulation" an important fourth branch of the government. Congress has given them vague policy guidelines as we will see, but has tried to make up for this by requiring the agencies to follow defined procedures in rule making and adjudication.

Congress has made the courts an important part of the regulatory process by providing for judicial review of agency decisions in the constitutionally required context of proper cases and controversies. Because there is little concrete statutory guidance for agency policy making most challenges to agency action must be based on procedural grounds. Appellants must show that the agency has failed to follow statutorily mandated procedures that the enabling statute and the APA requires.

Judicial review of administrative actions creates the administrative law, that is the case law, that comprises this course. Administrative case law interprets agency enabling statutes and the APA to define statutory requirements much as the Supreme Court interprets the Consititution to define constitutional law.

How to Brief a Case

The General Structure:

I. Name and Year of Case

II. Nature of the Case

III. Facts of the Case

IV. Statutory Question (list relevant provisions of the agency's enabling statute and the APA)

V. Decision and Reasons

VI. Concurrences or Dissents


1) Do not be distracted by the dicta (rhetoric not related directly to the decision). While it is important to note when analyzing trends, it may confuse your understanding of the case at hand.

2) Use your own language unless the Court's wording is particularly helpful to clarify an argument. The point of briefing is for you to have a handy reference for your own analysis.




Industrial Union Department, AFL-CIO v. American Petroleum Institute (1980)

( Text, p. 69.)

II. Nature of the Case

This case involves a challenge to an OSHA rule regulating benzene, promulgated by the Secretary of Labor, under the Occuational Safety and Health Act of 1970.

II. Facts of the Case

The Act created OSHA and requiredit to assure "to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or fuctional capacity" from exposure to toxic materials in the workplace. (#6(b)(5).

The Act defines in #3(8) an occupational safety and health standard as one "which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

Petitioning petroleum producers argued that the rule was unsubstantiated by the evidence and beyond OSHA's jurisdiction under #6(b)(5) of the statute which is controlling. Under that section OSHA can only promulgate standards "reasonably necessary or appropriate" for workplace safety. The evidence, the petitioners alleged, did not support a conclusion that the standard was in fact "reasonably necessary or appropriate."

OHSA responded that #6(b)(5) was controlling. The statute did not impose the requirement that only reasonably necessary or appropriate standards could be promulgated. The statutory mandate to protect workers and the best available evidence supported the rule.

The Court of Appeals held that #6(b)(5) in combination with #3(8) required the agency to quantify the costs and benefits of the proposed rule and to "conclude that they are roughly commensurate."

IV. Statutory Question

What did Congress intend in sections 3(8) and 6(b)(5) of the statute? How do these sections apply to OSHA rulemaking and in what sequence? What does the statute mandate the agency to do?

V. Decisions and Reasons

The decision of the Supreme Court split 5-4 against OSHA..

There was no majority opinion in the case. Justice Stevens wrote an opinion joined in full by Chief Justice Burger and Justice Stewart, and in part by Justice Powell. Justice Rehnquist's vote made the majority of five but he wrote a concurring opinion that reasoned entirely differently than his brethren in the majority.

Justice Marshall wrote a dissenting opinion joined by Justices Brennan, White, and Blackmun.

1. Justice Stevens.

#3(8) is controlling, and requires OSHA that any standard promulgated is reasonably necessary and appropriate "to remedy a significant risk of material health impairment." The Secretary (OSHA) must make this threshold finding before proceeding to #6(b)(5) requirements. OSHA did not make the required threshold determination.


It is unreasonable to assume that Congress intended to delegate the broad discretionary powers implied in the government's interpretation of the statute. Absent a requirement of quantification of risk the statute would be an unconstitutional delegation of legislative authority in violation of the Schechter rule. ( See Schechter v. U.S., 295 U.S. 495, 539 [1935] .)

Justice Powell concurring in part and concurring in the judgment.

The statute links #3(8) and #6(b)(5) to require the threshold findings noted in Steven's opinion. OSHA has met this requirement. However, in addition the statute requires the agency to determine the economic effects of its proposed rule on the industry. The rule must be based on an analysis of costs and benefits that concludes the costs bear a reasonable relatiionship to the expected benefits. The agency has not done this.


Ignoring economic consequences of regulation of toxic substances would result in serious misallocation of resources and a lower level of safety than would result from standards that balanced costs and benefits. We must construe the statute rationally and not attribute irrationality to Congress and legislative intent.

Justice Rehnquist, concurring in the judgment.

The statute violates the Schechter Rule of nondelegation of legislative power and is unconstitutional.


The statute does not meet the three requirements for a constitutional delegation of power from Congress to an administrative agency . First, it does not ensure that Congress and Congress alone will make important choices of social policy. Second, the statute does not define an "intelligible principle" to guide the exercise of delegated discretion to the agency. Third, the statute does not have ascertainable standards the courts can follow in exercising judicial review. In particular the standard of "feasibility" makes meaningful judicial review impossible. Courts must be able to determine ultra vires agency actions, and here the statute does not define the vires to be applied.

Dissenting opinions.

Justice Marshall, joined by Justices Brennan, White, and Blackmun, dissenting.

The statute conforms to past delegations that the courts have upheld. The agency's action was a reasonable interpretation of the statute.


The Court's judgment overturning the agency's action is an unreasonable and inappropriate exercise of judical power that essentially involves the Court in policy making and enforcement. Where, as here, statutory language and intent are plain judicial inquiry is at an end. As long a regulatory actions bear a reasonable relation to statutory purposes, as here, they should be sustained. The word "feasible" means clearly that the Secretary's actions should not materially harm the financial condition of the regulated industry. Within that boundary any reasonable agency action must be upheld. It is up to the agency, not the courts, to make the scientific and technical judgments the law mandates.

On the issue of delegation of powers Congress has been sufficiently definite here to sustain the legislation. Congress has made the critical policy decisions the Schechter Rule requires. Statutory terms such as "feasible" should not be considered in the abstract but must and can be defined by other contexts within which Congress has used them.

The Delegation of Legislative and Judicial Power

We will begin our course with the issue of delegation of legislative authority to the adminstrative or executive branch.

Congress in statutory laws sets up administrative agencies and departments to be its agents in carrying out policies. To do this Congress must give the agencies quasi-legislative and quasi-judicial powers. The terms imply that the agencies do not exercise the primary constitutional authority of Congress and the judiciary respectively to make law and to have final power to adjudicate cases and controversies arising under the Constitution, laws, and treaties.

Congressional Powers Under Article I

Refer to Article I of the Constitution in your text's Appendix. Here you find the constitutional authority of Congress to make laws that, for example, affect commerce among the states. ( See Gibbons v. Ogden, 1824.)

Article I limits or expands congressional authority depending upon whether or not you take a strict of loose constructionist view of the Constitution. Regardless of what approach you take one thing is perfectly clear, namely that Congress and Congress alone has the constitutional authority to make law. The sovereignty of the people resides in Congress (Locke) and cannot under the social contract be placed elsewhere. Congress represents the people in the House with the Senate providing a balance and a deliberative process to define and uphold the national interest. The House is parochial, the Senate deliberative in the Burkean sense.

Now here is the dilemma administrative agencies and their powers present to our constitutional system. Congress for political and practical reasons does indeed delegate both legislative and judicial-type powers to the bureaucracy. But the Constitution does not accommodate the bureaucracy in any way, at least not textually nor in the rather broad approach Hamilton and Madison take in The Federalist.

Can Congress fit the agencies into our constitutional system? How would you write a statute delegating rule-making and adjudicative (the judges say adjudicatory, a word I can't find in any dictionary) power to an agency to make the agency's authority conform to constitutional theory?