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ADMINISTRATIVE LAW

"Administrative law" describes the legal structure of much of the executive branch of government, particularly the quasi-independent agencies, and the procedural constraints under which they operate. Most of these constraints are statutory; those that do involve the Constitution flow chiefly from the doctrine of SEPARATION OF POWERS and the DUE PROCESS clause. To comprehend the effects of either of these on administrative law one must understand the growth of the administrative agency in the modern American state.

The early years of the twentieth century saw both a growth in the executive branch of the federal government and, perhaps more important, increased expectations about tasks it should perform. Some have seen these changes as a natural concomitant of industrialization; some as a growth in the power of a new professional class claiming to possess a nonpolitical expertise; some as the result of political pressure developed by farmers and small-town residents who looked to government to contain corporate juggernauts; some as the consequence of the desire of those very juggernauts to gain government sanction shielding them from the competitive forces of the marketplace. Whatever the causes, federal, state, and municipal governments took on new tasks in the closing decades of the nineteenth and the opening ones of the twentieth centuries.

Agencies such as the Interstate Commerce Commission, the Federal Trade Commission, the Food and Drug Administration, and the Federal Reserve Board bore witness to national perceptions that the existing economic and social mechanisms left something to be desired and that increased government intervention was the solution. At the local level the rise of social welfare agencies and zoning boards bespoke similar concerns.

With the coming of the Great Depression the federal government sought to revive the economy through numerous public programs designed both to coordinate sectors of the nation's industrial and commercial life (the WAGNER NATIONAL LABOR RELATIONS ACT, the AGRICULTURAL ADJUSTMENT ACT, the NATIONAL INDUSTRIAL RECOVERY ACT) and to create public jobs to reduce unemployment and increase consumer demand (the Civilian Conservation Corps, the Works Progress Administration, the Public Works Administration). Such agencies, generating regulations under the statutory umbrella of broad enabling legislation, came to be a standard feature on the American scene.

In a parallel development state governments created a number of agencies to coordinate and regulate everything from barbers to new car dealers, from avocado marketing to the licensing of physicians. Some of these boards appear to function chiefly as means of controlling entry into occupations and thereby shielding current practitioners from competition, but all function as branches of the government armed with at least some forms of regulatory power.

In some respects such state and national agencies represent not a new form of governmental power but a transfer to state and national levels of what had once been tasks of city government. The functioning of such municipal bureaucracies was, however, largely idiosyncratic and local—defined by the terms of the cities' charters and thus beyond the reach of national law. The migration of regulatory control from city to state and nation both enabled and necessitated the development of a new "administrative" law, which in America is almost entirely a creature of the twentieth century.

Most of that law is statutory, a function of the legislation that creates the board, agency, or commission and defines its tasks and powers. Citizens and enterprises wishing either to invoke or to challenge such powers use the statutorily specified procedures, which often involve both internal agency and external JUDICIAL REVIEW of administrative actions. At two points, however, the Constitution does speak to the structure and conduct of the agencies. In the formative years of the administrative state the Supreme Court expressed doubt about the place of the agency in the divided federal system of government. Since the NEW DEAL the constitutional focus has turned to the processes employed by administrative agencies, and the courts have regularly required agencies' procedures to conform to the due process clause.

The Constitution establishes three branches of the national government, and the courts early decided that no branch should exceed its own powers or intrude on areas designated as the province of another branch. This principle, known as the separation of powers, applies to numerous activities of the federal government, but it impinges particularly on the operation of administrative agencies charged with the formation and enforcement of broad federal policy.

Congress could not possibly specify just what tasks it wishes federal agencies to accomplish and also exactly how to perform them. At the opposite extreme it would just as obviously violate the separation of powers if Congress were to throw up its hands at the task of forming policy and instead direct the President to hit on whatever combination of revenue collection and expenditure he deemed best to fulfill the needs of the country. The concern is that Congress, if it asks an administrative agency not just to carry out defined tasks but also to participate in the formation of policy, has impermissibly given—delegated—its legislative power to the agency (a part of the executive branch).

That concern surfaced in a pair of Supreme Court decisions invalidating New Deal legislation. PANAMA REFINING CO. V. RYAN (1935) struck down a portion of the National Industrial Recovery Act that permitted the President to ban the interstate shipment of petroleum; the Court's ground was that Congress had provided no guidance as to when the President should do so or what aims were to justify the ban. A few months later, in SCHECHTER POULTRY CORP. V. UNITED STATES, the Court held unconstitutional another section of the same act; its DELEGATION OF POWER permitted the President to create codes of fair competition for various industries. Congress had defined neither the content of such codes nor the conditions for their proclamation, and some members of the Court evinced concern that the absence of standards could pave the way for what amounted to a governmentally sanctioned system of industrial cartels.

Since these two cases the Court has not invalidated a congressional delegation of power, but some have argued that the memory of these cases has induced the legislature to indicate more clearly the goals it intends the agency to accomplish, the means by which they are to be accomplished, and the processes that should accompany their implementation.

Even though an administrative agency does not perform tasks that constitutionally belong only to Congress, it might nevertheless violate the constitutional structure of government by performing tasks belonging to the courts. The problem has several guises.

In some instances Congress in creating the agency has given it JURISDICTION that might otherwise have been exercised by the courts (for example, over maritime accidents). Did such congressional action, which could be viewed as a transfer of federal judicial jurisdiction to an agency, violate the constitutional structure of government or the rights of the parties? In Crowell v. Benson (1932) the Court concluded that if Congress established fair administrative procedures, the agency could hear and determine cases that might otherwise have been heard by the courts—with the saving proviso that the federal courts might review the agency's determination of questions of law.

That proviso pointed to another difficult question: the extent to which the courts might review agency decisions. Summarizing the history of this question, Louis Jaffe has said that we have moved from a nineteenth-century presumption of unreviewability to a twentieth-century presumption of reviewability. Such reviewability, however, flows from statutory interpretation rather than from constitutional compulsion: if Congress is sufficiently explicit, it can make an agency determination final and unreviewable—either because the statute explicitly says so or because it so clearly makes the decision in question a matter of agency discretion that there is no law to apply. For the most part, however, courts routinely scrutinize agency action for legality and at least minimal rationality and are prepared to give the agencies fairly great leeway in performing their tasks.

One measure of this leeway the agencies enjoy is the set of requirements imposed on litigants seeking to invoke federal judicial review of agency action. Such parties must satisfy the courts that they have STANDING (that is, actual injury caused by the agency action), that the dispute is ripe for judicial review (that is, that the case comes to the courts when it has sufficiently developed to render a judicial decision not merely abstract or hypothetical), and that they have exhausted their administrative remedies (that is, that they have sought such administrative redress as is available). Only the first two of these requirements—standing and RIPENESS—stem from the Constitution; all of them, however, condition the federal courts' exercise of judicial review.

Courts are prepared to grant such leeway, however, only to the extent that they are assured that the agency has complied with the requirements of due process in making its decisions. Due process plays two roles in administrative law. To the extent that agencies make rules only after extensive public participation in their deliberations, they address some of the concerns lying at the base of the delegation doctrine—ill-considered and hasty action. Due process also plays a second, more traditional role of assuring adjudicatory fairness. To the extent that agencies take action against those violating their rules, courts have often required that the agencies afford the violators various procedural protections.

Because an increasing number of Americans, from defense contractors and television broadcasters to mothers of dependent children and disabled veterans, depend on state and federal government for their livelihood, such protections have become increasingly important. In the second half of the twentieth century the courts have held many of those interests to be property, thus giving their holders the right to due process—sometimes including a FAIR HEARING—before suffering their deprivation. Thus state and federal agencies must give welfare recipients an opportunity to know and to contest factual findings before ending benefits; public schools and colleges have to supply students some form of NOTICE and process before suspending or expelling them; and public employers must grant tenured employees an opportunity to contest their dismissal. Courts have left the agencies some discretion as to the form of such procedures, which need not, for example, always include a hearing, but the process must suit the circumstances.

Because such protections flow from the due process clauses, they apply equally to state and to federal government; indeed, an important consequence of the constitutionalization of administrative process is that it has penetrated to state bureaucracies, some of which were perhaps less than exemplary in their concern for those affected by their actions. As a result both state courts and state legislatures have directed attention to the procedures of their agencies.

In a large sense, to understand the relationship of the administrative state to the Constitution, one has to spell constitution with a small "c," for the difficulties have been less with specific constitutional provisions than with the general picture of how executive action—especially action in new spheres—fits into received understandings of the world. That question is still debatable, but the debates, at least in the last half of the twentieth century, have taken place at the level of desirable policy, not of constitutional legality: so long as the agencies operate fairly, that much, apparently, is assured.