the statutory authority of agencies

Administrative Law

The Statutory Authority of Agencies

Introduction In the last section, the Constitutional Authority of Agencies,

we discussed limits under the Constitution of what agencies can do. We discussed two primary provisions:

Due Process Clause of the 14th Amendment The Takings Clause of the 5th Amendment

We also discussed: Separation of Powers

Nondelegation doctrine – the idea that the act of transferring power, authority, or responsibility from Congress to a person or agency is a violation of the separation of powers doctrine under the Constitution.

Separation of powers can also be viewed as “who” may exercise authority to make decisions under the authority of statutes.

Today we also discuss: Statutory limits on agency discretion

Statutory Limits on Agency Discretion

Agencies derive their authority from statutes enacted by legislatures.

This is true at the federal and state level. In performing their duties, agencies must rely on

specific grants of statutory authority. Jurisdiction – the geographical area within which, the

subject matter with respect to which, and the persons over whom a court or agency can properly exercise its power.

Actions beyond the scope of delegated authority (jurisdiction) are referred to as ultra vires.

These actions may be invalidated by courts.


Single statute agencies: In some instances,

agencies derive their authority from one act.

Examples: Food and Drug

Administration Pure Food, Drugs, and Cosmetic Act

Social Security Administration Social Security Act

Federal Communications Commission Communications Act

Multiple statute agencies: Examples:

Environmental Protection Agency: National Environmental Policy Act

(NEPA) Chemical Safety Information, Site

Security, and Fuels Regulatory Relief Act.

Clean Air Act (CAA) Clean Water Act (CWA) Comprehensive Environmental

Response, Compensation & Liability Act (CERCLA)

Emergency Planning and Community Right-To-Know Act (EPCRA)

Endangered Species Act (ESA) Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) Federal Food, Drug, and Cosmetic Act

(FFDCA) Occupational Safety and Health Act

(OSHA) Oil Pollution Act (OPA) Pollution Prevention Act (PPA) Resource Conservation and Recovery

Act (RCRA) Safe Drinking Water Act (SDWA) Superfund Amendments and

Reauthorization Act (SARA) Toxic Substances Control Act (TSCA)


One act confers authority to multiple agencies Americans with Disabilities Act (ADA)

Title I (employment discrimination) EEOC

Title II and III (Reasonable accommodations by state and local agencies, public transportation accommodation)

Department of Justice Department of Transportation

Title IV (access to electronic media) FCC


Discretion – the power of public officials to act in certain situations according their own judgment rather than relying on set rules or procedures (i.e., statutory authority).

Discretion arises because many statutes are vague in their language.

They may simply require that regulations “serve the public interest,” which would grant broad discretion.

The problem that this causes is that the meaning (intentions) of a statute are not clear.

Agency interpretation is influenced by both technical and political factors. Why are statutes vague?

Laziness, sloppiness, or just plain poorly drafted legislation. Political compromise

The need to acquire the support of a majority, president, governor, etc. will often result in what was a clear statute becoming vague.

Lack of expertise


Agencies have the primary responsibility of determining their own statutory limits and acting within them. Thus, discretion may also include the decision

of an agency not act. Agencies are the first to interpret what a

legislature meant when it enacted the statute. They often even played a role in the development

of the legislation. Again, interpretation can be based on both political

and technical factors.

Immigration and Naturalization Service v. Chadha, 462 U.S. 919

(1983)

NAACP et al. v. Federal Power Commission, 425 U.S. 662 (1976)

Industrial Union Department v. American Petroleum Institute, 448

U.S. 607 (1980)

American Textile Manufacturers v. Donovan, 452 U.S. 490 (1981)

Chevron v. Natural Resources Defense Council, 467 U.S. 837

(1984)

FDA v. Brown and Williamson, 529 U.S. 120 (2000)

United States v. Mead Corporation, 533 U.S. 218 (2001)