ADMINISTRATIVE LAW - PROF.
STEVENSON, ADMIN LAW
(STEVENSON) EXAM QUESTIONS &
ELABORATED CORRECT ANSWERS
1. What is administrative Law? - CORRECT ANSWER Administrative Law is the body
of statutes, constitutional limitations, and judicial precedents governing the public
bureaucracies and government agencies. It is the regulation of the regulators, whether
executive agencies or independent agencies. Most of the law is procedural, focused on
how government agencies may act instead of what policies the agencies pursue.
2. Analyzing Administrative Law Problems in General - CORRECT ANSWER Here are
some General Tips for any administrative law problem:
1. Think about the political questions or public policy goals involved in the agency's
actions: Has the agency been "captured" by a special interest group or big corporate
interests? Is the agency pursuing a valid, important public policy agenda? Is one branch
of government enhancing its own power at the expense of others?
2. Ask yourself if the agency has the legal authority or power to take the actions in
question, based on its "enabling" or "governing" statute. Regardless of the merits of an
agency's agenda, it cannot undertake any activities except those authorized in its
enabling statute.
Address the relevant source of law on which you or the agency are relying: the
constitution, the APA, a particular enabling statute, another general-applicability statute
like the FOIA or NEPA, or even traditional common-law rules.
3. Analyzing Supreme Court Opinions: Majority vs. Dissent - CORRECT ANSWER
Most Supreme Court decisions adressing administrative law seem split along partisan
lines. The background issue in each case is usually a policy agenda of one of the main
political parties (whoever occupied the White House at the time), so underlying political
ideologies tend to overshadow the technical procedural rules on which the Court must
rule in the case. This makes for the chronic inconsistencies in the Court's approach to
some pedantic procedural questions, as the Justices may switch sides on a technical
procedure when a different Administration's executive programs are at issue. For this
reason, it is unusually important to read the dissenting and concurring opinions in your
casebook (compared to some other courses), because the majority opinion in one case
often adopts points made in a dissenting opinion in a previous case.
,4. What are the sources of administrative law? - CORRECT ANSWER 1. U.S.
constitution, especially the clauses delineating the powers reserved for each branch of
the government, the Due Process Clauses of the Fifth and Fourteenth Amendments,
and constitutional provisions relating to standing.
2. Generic statutes imposing guidelines on most administrative agencies, especially the
Administrative Procedure Act (APA), but also the Freedom of Information Act, and so
on.
3. Specific enabling statutes. Most Agencies have an "organic statute" that called the
agency into existence and bestowed on it certain powers and responsibilities.
4. Administrative Common Law. Courts created some rules about the exercise of power
by government officials; courts still reference these to explain provisions of the APA or
to fill gaps in the statute.
5. Executive Orders issued by the President impose mandates on agencies, and
sometimes create new agencies (similar to enabling statutes).
6. Internal Agency Policy Manuals and Directives. Agencies sometimes bind themselves
by the provisions included in their published internal rules.
5. How is the Constitution a source of Administrative law? - CORRECT ANSWER The
U.S. Constitution primarily governs the actions of the government itself, and therefore is
both the power or authority excercised by agencies, and the source of the ultimate
limitations on what agencies can do and even what type of agencies can exist.
6. Which parts of the Constitution are most relevant for administrative law? -
CORRECT ANSWER Only a few sections of the U.S. Constitution are likely to come up
in your administrative law course:
-The Vesting Clauses in Article I and Article II, which vest certain powers in the
legislative and executive branches, respectively. These clauses arise in cases
addressing the Separation of Powers as each branch tries to gain greater control over
the agencies, and in "Nondelegation" cases, where the Legislature is accused of giving
away its authority to freely;
-The Appointments Clause, Art. II Sec. 2, cl. 2, which controls the President's power to
appoint and remove heads of administrative agencies;
-The Due Process Clauses of the Fifth and Fourteenth Amendments;
-Article III's provisions authorizing and limiting judicial review, and its relationship with
Administrative Law Judges;
,-Eleventh Amendment issues regarding liability or immunity for state and local
government officials;
-(Less likely) Seventh Amendment guarantees of the right to a jury trial.
7. The President wants to elicit information from some political opponents who are U.S.
Citizens. He asks the CIA to use torture, if necessary, to obtain confessions from these
individuals and to convict them of treason without a trial if they still refuse to cooperate.
He reasons that the CIA is an independent agency, and therefore is not bound by the
same constitutional strictures that the Bill of Rights imposes on the Executive Branch. Is
he correct? - CORRECT ANSWER No. Constitutional due process requirements apply
to government agencies, including independent agencies.
8. What are the "generic statutes" for the purposes of administrative law? - CORRECT
ANSWER The so-called generic statutes impose procedural requirements or other
obligations on all federal agencies unless they have a statutory exemption from the act.
The most important is the Administrative Procedure Act (APA). Others include:
-Freedom of Information Act (FOIA, usually an entire chapter in Administrative Law
case-books);
-National Environmental Policy Act (requires agencies to assess the environmental
impact on proposed projects);
-Paperwork Reduction Act;
-Sunshine Act;
-Federal Advisory Committee Act (FACA);
-Regulatory Flexibility Act; and
-Unfunded Mandates Reform Act; and
-Data Quality Act
9. Congress enacts a law requiring all federal agencies to suspend their usual
processes for granting permits and licenses during the last month of the year, to have a
clear break between calendar years that mark the tolling period for licenses or permits.
This includes a list of exceptions for emergency circumstances and exemptions for
some agencies. Would a court uphold such a statute? - CORRECT ANSWER Yes,
assuming it finds no unconstitutional infringements on executive powers in the wording
of the statute, Congress can pass legislation that controls the procedures and
operations of the federal agencies overall. These are often called generic statutes (as
opposed to enabling or organic statutes), the most important of which is the APA.
10. What is an "enabling statute" for purposes of administrative law? - CORRECT
ANSWER An enabling statute specifically empowrs a given agency (for example, the
Environmental Protection Agency or EPA) to take certin actions. The agency derives its
power or authority to act from this statute. Sometimes these are called organic statutes,
especially where the act creates an agency and bestows on it certain responsibilities
, and powers (like the Social Security Act, which created the Social Security
Administration). Subsequent legislation can add additional responsibilities to the
agency, as when the Toxic Substances Control Act gave new tasks and powers to the
already-existent EPA. Such subsequent legislation is also an "enabling act" because the
agency derives its authority for certain actions from this statute. Agencies cannot act
beyond their statutory authorization, so many challenges to agency actions focus on the
provisions of the enabling statute.
11. What happens if an agency acts outside the bounds of its "enabling statute"? -
CORRECT ANSWER A reviewing court will invalidate an agency action-where an
instance of rulemaking, enforcement, adjudication or soliciation of information-if an
agency "exceeds its statutory authority" as delineated in the enabling statute. Older
cases sometimes called this an ultra vires action, borrowing a term from corporate law.
12. What is the "ultra vires" doctrine, for the purposes of administrative law? -
CORRECT ANSWER Ultra vires is a latin meaning "beyond the powers" that is, beyond
one's legal authority. It is used more often in Britain than in the United states; in the
United Sates it is more commonly used in corporate law. For purposes of administrative
law, the term has two main uses:
1. When an individual agency official or employee acts outside his or her scope of
duties within the agency.
2. When an agency acts outside the bounds of its enabling statute, or in defiance of
other generic statutory limitations on its procedures like the APA.
13. Analyzing Ultra vire Problems - CORRECT ANSWER The phrase ultra vires is
falling into disuse in the administrative law context, and some professors do not use it
all. The more common phrase used in modern cases is "exceeded its statutory
authority" (for an agency) or "exceeded the scope of his duties at the agency" (for an
individual) instead of ultra vires, and it avoids possible confusion between the two
distinct meanings.
14. The General Services Administration (GSA) decides to generate some goodwill in
the community by allowing local clubs to meet in its regional office conference rooms on
the weekends. A particularly controversial club requests the use of a meeting room, and
the GSA denies the request, as retaliation for an antigovernment symposium the club
sponsored the previous year, in which the club had harshly criticized the GSA. The
GSA's denial letter explained that the club's adversarial relationship with the agency
meant that using GSA facilities would send a misleading signal to the community that
GSA officials had conceded to the club's contrary positions. Furious, the club files a
lawsuit, claiming viewpoint discrimination, free speech violations, and so on. What legal
argument from administrative law might help the club challenge the GSA's actions? -
CORRECT ANSWER The agency probably exceeded its statutory authority in allowing
anyone to use its facilities on the weekends. It is unlikely that the GSA's enabling statute
STEVENSON, ADMIN LAW
(STEVENSON) EXAM QUESTIONS &
ELABORATED CORRECT ANSWERS
1. What is administrative Law? - CORRECT ANSWER Administrative Law is the body
of statutes, constitutional limitations, and judicial precedents governing the public
bureaucracies and government agencies. It is the regulation of the regulators, whether
executive agencies or independent agencies. Most of the law is procedural, focused on
how government agencies may act instead of what policies the agencies pursue.
2. Analyzing Administrative Law Problems in General - CORRECT ANSWER Here are
some General Tips for any administrative law problem:
1. Think about the political questions or public policy goals involved in the agency's
actions: Has the agency been "captured" by a special interest group or big corporate
interests? Is the agency pursuing a valid, important public policy agenda? Is one branch
of government enhancing its own power at the expense of others?
2. Ask yourself if the agency has the legal authority or power to take the actions in
question, based on its "enabling" or "governing" statute. Regardless of the merits of an
agency's agenda, it cannot undertake any activities except those authorized in its
enabling statute.
Address the relevant source of law on which you or the agency are relying: the
constitution, the APA, a particular enabling statute, another general-applicability statute
like the FOIA or NEPA, or even traditional common-law rules.
3. Analyzing Supreme Court Opinions: Majority vs. Dissent - CORRECT ANSWER
Most Supreme Court decisions adressing administrative law seem split along partisan
lines. The background issue in each case is usually a policy agenda of one of the main
political parties (whoever occupied the White House at the time), so underlying political
ideologies tend to overshadow the technical procedural rules on which the Court must
rule in the case. This makes for the chronic inconsistencies in the Court's approach to
some pedantic procedural questions, as the Justices may switch sides on a technical
procedure when a different Administration's executive programs are at issue. For this
reason, it is unusually important to read the dissenting and concurring opinions in your
casebook (compared to some other courses), because the majority opinion in one case
often adopts points made in a dissenting opinion in a previous case.
,4. What are the sources of administrative law? - CORRECT ANSWER 1. U.S.
constitution, especially the clauses delineating the powers reserved for each branch of
the government, the Due Process Clauses of the Fifth and Fourteenth Amendments,
and constitutional provisions relating to standing.
2. Generic statutes imposing guidelines on most administrative agencies, especially the
Administrative Procedure Act (APA), but also the Freedom of Information Act, and so
on.
3. Specific enabling statutes. Most Agencies have an "organic statute" that called the
agency into existence and bestowed on it certain powers and responsibilities.
4. Administrative Common Law. Courts created some rules about the exercise of power
by government officials; courts still reference these to explain provisions of the APA or
to fill gaps in the statute.
5. Executive Orders issued by the President impose mandates on agencies, and
sometimes create new agencies (similar to enabling statutes).
6. Internal Agency Policy Manuals and Directives. Agencies sometimes bind themselves
by the provisions included in their published internal rules.
5. How is the Constitution a source of Administrative law? - CORRECT ANSWER The
U.S. Constitution primarily governs the actions of the government itself, and therefore is
both the power or authority excercised by agencies, and the source of the ultimate
limitations on what agencies can do and even what type of agencies can exist.
6. Which parts of the Constitution are most relevant for administrative law? -
CORRECT ANSWER Only a few sections of the U.S. Constitution are likely to come up
in your administrative law course:
-The Vesting Clauses in Article I and Article II, which vest certain powers in the
legislative and executive branches, respectively. These clauses arise in cases
addressing the Separation of Powers as each branch tries to gain greater control over
the agencies, and in "Nondelegation" cases, where the Legislature is accused of giving
away its authority to freely;
-The Appointments Clause, Art. II Sec. 2, cl. 2, which controls the President's power to
appoint and remove heads of administrative agencies;
-The Due Process Clauses of the Fifth and Fourteenth Amendments;
-Article III's provisions authorizing and limiting judicial review, and its relationship with
Administrative Law Judges;
,-Eleventh Amendment issues regarding liability or immunity for state and local
government officials;
-(Less likely) Seventh Amendment guarantees of the right to a jury trial.
7. The President wants to elicit information from some political opponents who are U.S.
Citizens. He asks the CIA to use torture, if necessary, to obtain confessions from these
individuals and to convict them of treason without a trial if they still refuse to cooperate.
He reasons that the CIA is an independent agency, and therefore is not bound by the
same constitutional strictures that the Bill of Rights imposes on the Executive Branch. Is
he correct? - CORRECT ANSWER No. Constitutional due process requirements apply
to government agencies, including independent agencies.
8. What are the "generic statutes" for the purposes of administrative law? - CORRECT
ANSWER The so-called generic statutes impose procedural requirements or other
obligations on all federal agencies unless they have a statutory exemption from the act.
The most important is the Administrative Procedure Act (APA). Others include:
-Freedom of Information Act (FOIA, usually an entire chapter in Administrative Law
case-books);
-National Environmental Policy Act (requires agencies to assess the environmental
impact on proposed projects);
-Paperwork Reduction Act;
-Sunshine Act;
-Federal Advisory Committee Act (FACA);
-Regulatory Flexibility Act; and
-Unfunded Mandates Reform Act; and
-Data Quality Act
9. Congress enacts a law requiring all federal agencies to suspend their usual
processes for granting permits and licenses during the last month of the year, to have a
clear break between calendar years that mark the tolling period for licenses or permits.
This includes a list of exceptions for emergency circumstances and exemptions for
some agencies. Would a court uphold such a statute? - CORRECT ANSWER Yes,
assuming it finds no unconstitutional infringements on executive powers in the wording
of the statute, Congress can pass legislation that controls the procedures and
operations of the federal agencies overall. These are often called generic statutes (as
opposed to enabling or organic statutes), the most important of which is the APA.
10. What is an "enabling statute" for purposes of administrative law? - CORRECT
ANSWER An enabling statute specifically empowrs a given agency (for example, the
Environmental Protection Agency or EPA) to take certin actions. The agency derives its
power or authority to act from this statute. Sometimes these are called organic statutes,
especially where the act creates an agency and bestows on it certain responsibilities
, and powers (like the Social Security Act, which created the Social Security
Administration). Subsequent legislation can add additional responsibilities to the
agency, as when the Toxic Substances Control Act gave new tasks and powers to the
already-existent EPA. Such subsequent legislation is also an "enabling act" because the
agency derives its authority for certain actions from this statute. Agencies cannot act
beyond their statutory authorization, so many challenges to agency actions focus on the
provisions of the enabling statute.
11. What happens if an agency acts outside the bounds of its "enabling statute"? -
CORRECT ANSWER A reviewing court will invalidate an agency action-where an
instance of rulemaking, enforcement, adjudication or soliciation of information-if an
agency "exceeds its statutory authority" as delineated in the enabling statute. Older
cases sometimes called this an ultra vires action, borrowing a term from corporate law.
12. What is the "ultra vires" doctrine, for the purposes of administrative law? -
CORRECT ANSWER Ultra vires is a latin meaning "beyond the powers" that is, beyond
one's legal authority. It is used more often in Britain than in the United states; in the
United Sates it is more commonly used in corporate law. For purposes of administrative
law, the term has two main uses:
1. When an individual agency official or employee acts outside his or her scope of
duties within the agency.
2. When an agency acts outside the bounds of its enabling statute, or in defiance of
other generic statutory limitations on its procedures like the APA.
13. Analyzing Ultra vire Problems - CORRECT ANSWER The phrase ultra vires is
falling into disuse in the administrative law context, and some professors do not use it
all. The more common phrase used in modern cases is "exceeded its statutory
authority" (for an agency) or "exceeded the scope of his duties at the agency" (for an
individual) instead of ultra vires, and it avoids possible confusion between the two
distinct meanings.
14. The General Services Administration (GSA) decides to generate some goodwill in
the community by allowing local clubs to meet in its regional office conference rooms on
the weekends. A particularly controversial club requests the use of a meeting room, and
the GSA denies the request, as retaliation for an antigovernment symposium the club
sponsored the previous year, in which the club had harshly criticized the GSA. The
GSA's denial letter explained that the club's adversarial relationship with the agency
meant that using GSA facilities would send a misleading signal to the community that
GSA officials had conceded to the club's contrary positions. Furious, the club files a
lawsuit, claiming viewpoint discrimination, free speech violations, and so on. What legal
argument from administrative law might help the club challenge the GSA's actions? -
CORRECT ANSWER The agency probably exceeded its statutory authority in allowing
anyone to use its facilities on the weekends. It is unlikely that the GSA's enabling statute
