Professor Peter Woll
I. (50%) Congress has delegated significant quasi-legislative and quasi-judicial power to administrative agencies. The administrative branch has become a fourth branch of the government. Yet the Constitution establishes only three branches. The Supreme Court has attempted to rationalize the legislative and judicial functions of administrative agencies by adjusting constitutional theory to political realities. Discuss in terms of the delegation of powers doctrine how the Court has tried to adapt the fourth branch to the tripartite system of government. Begin with the Schechter rule, then discuss how the Court applied or modified it in Mistretta v. U.S., Industrial Union Dept., AFL-CIO v. American Petroleum Institute, and in Chevron v. Natural Resources Defense Council.
II. (50%) Justice Brandeis wrote in his Crowell v. Benson dissent:
If there be any controversy to which the judicial power extends that may not be subjected to the conclusive determination of administrative bodies…it is because, under certain circumstances, the … requirement of due process is a requirement of judicial process.
How has judicial review of administrative rule-making and adjudication reflected an implied acceptance of Brandeis’s framework? Begin with the Londoner v. Denver and Bi-Metallic v. Colorado paradigm, then discuss how judicial review of agency actions has addressed “due process” concerns. Consider cases such as Wong Yang Sung v. McGrath, Florida East Coast, Vermont Yankee, and Seacoast in your answer. Note the contrasting APA requirements for rule-making and adjudication, #553 versus ##554, 556, 557.