Table Of ContentWEST'S LAW SCHOOL
ADVISORY BOARD
JESSE H. , CHO PER
Professor of Law,
University of California, Berkeley
DAVID P. CURRIE
Professor of Law, University of Chicago
YALE KAMISAR
Professor of Law, University of San Diego
Professor of Law, University of Michigan
MARY KAY KANE
Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law
LARRY D. KRAMER
Dean and Professor of Law, Stanford Law School
WAYNE R. LaFAVE
Professor of Law, University of Illinois
JONATHAN R. MACEY
Professor of Law, Yale Law School
ARTHUR R., MILLER
University Professor, New York University
Professor of Law Emeritus, Harvard University
GRANT S. NELSON
Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles
JAMES J. WHITE
Professor of Law, University of Michigan
PRINCIPLES
OF
ADMINISTRATIVE LAW
By
Keith Werhan
Ashton Phelps Chair in Constitutional Law
Tulane University School of Law
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For my students-past, present, and future
iii
Preface
There is a frustrating paradox that clouds the study of adminis
trative law. On one hand, administrative agencies are ubiquitous at
every level of government. No institution of government touches our
lives as frequently or so pervasively. Every lawyer surely deals with
administrative agencies, and thus with administrative law, in some
way, at some time, during her or his practice. So do law students
who venture into such courses as environmental law, labor law, and
communications law.
On the other hand, this eminently practical field of law can be
one of the most abstract and elusive subjects in the law-school cur
riculum. This abstractness is the product of the ubiquity of adminis
trative agencies. Administrative law principles must be stated ab
stractly because they must apply to myriad agencies, which come in
a variety of shapes and sizes. Each agency has a distinctive history,
organizational structure, policy agenda, arsenal of powers, and set
of limitations on the exercise of those powers. Because of this diver
sity, generalizations about administrative agencies are treacherous,
and the task of developing meaningful and functional legal princi
ples applying to the full range of agency action is no mean trick. And
in addition to accommodating the wide diversity among agencies,
administrative law must cope with the considerable variety and
complexity of agency decisionmaking processes as well.
Administrative law is challenging for another reason: It is ambi
tious. The aspiration of administrative law is nothing less than to
control the exercise of governmental power within the rule of law.
Administrative law, like constitutional law, superimposes a legal
framework on an incorrigibly political process. Administrative law
and constitutional law thus experience similar difficulties in mediat
ing the uneasy relationship between law and politics in American
government.
A final challenge in studying administrative law is that agencies,
for all their familiarity, seem like alien creatures under the law. Al
though agencies do things that resemble what legislatures and
courts do, they are decidedly different in makeup, and therefore in
outlook, from those more familiar institutions. Agencies seem to in
habit the shadows of the three constitutional branches of govern
ment. And yet, understanding administrative law requires at least a
basic sense of what administrative agencies are and what they do.
V
vi PREFACE
This book is written with the purpose of assisting law students
and lawyers in overcoming these difficulties in the study of adminis
trative law. Its goal is to organize and to develop the core compo
nents of administrative law in a way that renders this legal system
both comprehensible and usable. With that goal in mind, I have dis
cussed throughout the book (1) the historical development of admin
istrative law and the administrative state; (2) the evolution of the
essential principles of administrative law, with an emphasis, of
course, on current doctrine; and (3) the contemporary controversies
in adminisj;rative law. I also have included in each chapter diagrams
that provide a visual organization of administrative law and the ad
ministrative process.
The "concise hornbook" concept has provided an ideal format to
develop the essential principles of administrative law in the manner
that I believe is appropriate for the study of this subject. This book
covers what I consider to be the core of administrative law. I have
attempted throughout the book to examine in an accessible yet so
phisticated manner the subject areas and the principal cases that
virtually every law school course in administrative law covers. In my
25 years or so of teaching administrative law, I have come to believe
that the successful students are those who understand the essen
tials of the administrative law system. If students understand the
logic of that system, as well as the fault lines within the system,
they have a usable framework for handling any administrative law
problem that may come their way.
In closing, I would like to express my appreciation to the editors
at Thomson West for their patience and support when my work on
this project was delayed by Hurricane Katrina and its aftermath,
and to Emory Law School, which graciously allowed me the use of
its facilities to continue work on this book when I washed up in At
lanta after the storm. I also am grateful, as always, to Lo and Ben
for their understanding and support. Finally, I would like to thank
my assistant, Gail Nelson, for her work in bringing my diagrams to
life.
KEITHWERHAN
NEW ORLEANS, LOUISIANA
JULY2007
Summary of Contents
Page
Chapter 1. An Introduction to the Study of Adminis-
trative Law ----------------------_- ---------------------_- -----------_ 1
1.1 What Is Administrative Law?---------------------------------------- 1
1.2 What Are Administrative Agencies? ------------------------------- 3
1.3 What Motivates Agency Action?------------------------------------- 6
1.4 The "Traditional Model" of Administrative Law-------------- 9
1.5 A History of the American Administrative State and of
American Administrative Law------------------------------------10
Chapter 2. Administrative Agencies in American Con
stitutional Government-----------------------------------------32
2.1 An Introduction to Separation of Powers and Checks and
Balances in the United States Constitution------------------ 32
2.2 An Introduction to the Place of Administrative Agencies
in the Separation of Powers---------------------------------------40
2.3 Administrative Agencies and Congress --------------------------- 43
2.4 Administrative Agencies and the President --------------------- 72
2.5 Administrative Agencies and the Courts ------------------------- 99
Chapter 3. Due Process in the Administrative State ---- 107
-3.1 The Rulemaking-Adjudication Distinction---------------------- 109
3.2 The Early Understanding of Procedural Due Process: ·The
Right-Privilege Distinction----------------------------------------117
3.3 The Due Process Revolution ----------------------------------------1-19
3.4 The Due Process Counterrevolution and the Contempo-
rary Approach---------------------------------------------------______ _ 123
Chapter 4. The Administrative Procedure Act and the
Procedural Forms of Agency Action ---------------------158
4.1 The Distinction Between Rulemaking and Adjudication
Pursuant to the Administrative Procedure Act ------------- 161
4.2 The Distinction Between Formal and Informal Proceed-
ings Pursuant to the Administrative Procedure Act 164
4.3 The Power of Agencies to Choose Between Rulemaking
and Adjudication-----------------------------------------------------1-77
vii
viii SUMMARY OF CONTENTS
Page
Chapter 5. Formal Adjudication Under the Adminis-
trative Procedure Act--------------------------------------------189
5.1 Separation of Functions -----------------------------------------------192
5.2 Pre-hearing Procedures------------------------------------------------ 195
5.3 The Administrative Hearing -----------------------------------------199
5.4 The Initial Decision-----------------------------------------------------207
5.5 Administrative Review-------------------------------------------------207
5.6 Ex Parte Communications --------------------------------------------211
5. 7 Bias--------------------------------------------------------------------------2-15
Chapter 6. Informal Rulemaking Under the Adminis
trative Procedure Act--------------------------------------------218
6.1 The Rise of Judicial Hybrid Rulemaking -------------------------220
6.2 Vermont Yankee and the Demise of Judicial Hybrid Rule-
making ------------------------------------------------------------------- 223
6.3 Informal Rulemaking After Vermont Yankee -------------------227
6.4 Ex Parte Communications and Bias in Informal Rulemak-
ing _______________-_--_-_--_--_-_--_-_-- ------------------------------------ 243
6.5 Exemptions From the Informal Rulemaking Process -------- 249
Chapter 7. The Availability and Timing of Judicial
Review ------------------------------------------------------------------ 269
7.1 The Administrative Procedure Act's Roadmap for Judicial
Review -------------------------------------------------------------------- 270
7.2 The Availability of Judicial Review --------------------------------273
7.3 The Timing of Judicial Review-------------------------------------- 294
Chapter 8. The Nature and Scope of Substantive Judi-
cial Review ------------------------------------------------------------ 308
8.1 The Framework of Substantive Judicial Review--------------- 312-
8.2 The Administrative Record------------------------------------------- 316
8.3 The Three Elements of Agency Decisionmaking____________3_1_8_
8.4 Judicial Review of Agency Findings of Fact--------------------- 319
8.5 Judicial Review of Agencies' Interpretations of Their En-
abling Acts -------------------------------------------------------------- 326
8.6 Judicial Review of Agencies' Interpretations of Their
Rules ---------------------------------------------------------------------- 352
8. 7 Judicial Review of the IBtimate Decision of the Agency ---- 354
8.8 Judicial Power to Compel Agency Action ------------------------ 365
TABLE OF CASES ------------------------------------------------------------------ 367
INDEX --------------- ------- -------- ---------------- ---- ---------------------- ------- 383
Table of Contents
Page
Chapter 1. An Introduction to the Study of Adminis-
trative Law ---------------·- ------------------------------------------1
1.1 What Is Administrative Law?---------------------------------------- 1
1.2 What Are Administrative Agencies? ------------------------------- 3
1.3 What Motivates Agency Action?------------------------------------- 6
1.4 The "Traditional Model" of Administrative Law-------------- 9
1.5 A History of the American Administrative State and of
• American Administrative Law------------------------------------ 10
(a) The Antebellum Era and the Pre-modern Administra-
tive State, 1789-1860 ------------------------------------------10
(b) The Progressive Era and the Birth of the Modern
Administrative State, 1860-1932 -------------------------- 13
(c) The New Deal and Its Aftermath, 1933-1946 ------------ 18
(d) The Maturation of the Modern Administrative State,
1946 ----------------------------------------------------------------- 21
·ce) The Activism of the Public Interest Era, 1964-1977 --- 23
(f) The Retrenchment of the Deregulation Era, 1978-
Present ---------------------------------------------------. --------- 26
Chapter 2. Administrative Agencies in American Con
stitutional Government-----------------------------------------32
2.1 An Introduction to Separation of Powers and Checks and
Balances in the United States Constitution------------------ 32
2.2 An Introduction to the Place of Administrative Agencies
in the Separation of Powers--------------------------------------- 40
2.3 Administrative Agencies and Congress --------------------------- 43
(a) The Nondelegation Doctrine----------------------------------- 44
(b) The Legislative Veto----------------------------------------------65
(c) The "Report and Wait" Process ------------------------------ 67
(d) Other Congressional Controls on Administrative
Agencies -------------------------------------------------------__,_ 69
2.4 Administrative Agencies and the President --------------------- 72
(a) The Appointment of Administrative Officials------------- 73
(b) The Removal of Administrative Officials------------------- 81
(c) Presidential Oversight of Government Administration 88
ix
