Agency Authorization Of Deregulation: Administrative Government

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Agency Authorization of Deregulation
Administrative Law
November 29, 2013

Abstract
The Constitution, Congress, and state legislatures establish administrative agencies. The courts have allowed Congress and other legislative bodies to make laws that delegate lawmaking authority to administrative agencies. In Abbott Laboratories v. Gardner, the Court held for the first time that the Administrative Procedure Act (APA) creates a rebuttable presumption in favor of judicial review of agency action (Abbot Laboratories v. Gardner, 1967). The Supreme Court decision in Massachusetts v. EPA required that the Environmental Protection Agency (EPA) make a decision and not simply defer a decision, sharply limited the reasons an agency could cite in deciding not to regulate . At issue for agency discretion is whether a lack of financing is an allowable justification for declining to promulgate a rule. The Supreme Court’s deference to agencies appears to imply that agencies could still decide not to regulate if it bases its decision on considerations of funding and lack of resources.

Agency Authorization of Deregulation The Constitution, Congress, and state legislatures establish administrative agencies. The courts have allowed Congress and other legislative bodies to make laws that delegate lawmaking authority to administrative agencies. An administrative agency's powers must be intelligible, and include a system of controls to limit those powers (American Procedure Act of 1946). The Administrative Procedure Act (APA) provides federal courts with a framework for reviewing the rules made and procedures used by administrative agencies (American Procedure Act of 1946). In Abbott Laboratories v. Gardner, the Court held for the first time that the APA creates a rebuttable presumption in favor of judicial review of agency action (Abbot Laboratories v. Gardner, 1967). In Citizens To Preserve Overton Park, Inc. v. Volpe, the Supreme Court announced that the committed to agency discretion exception to review is not implicated as long as the court has law to apply a minimal standard that is easily met (Citizens to Preserve Overton Park v. Volpe, 1971). Agency inaction poses a particular problem for courts exercising their power of judicial review. The APA appears to treat judicial review of agency inaction as governed by the same principles as review of agency action (Deacon, 2010). An agency’s decision not to act, therefore, seems to be reviewable on the same basis as a decision to act. The Supreme Court decision in Massachusetts v. EPA required that the EPA make a decision and not simply defer a decision, sharply limited which reasons the agency could cite in deciding not to regulate Green House Gas (GHG) emissions . The only points of discretion afforded EPA was in determining whether GHG emissions contribute to global warming and whether sufficient information existed to make a finding that global warming “may reasonably be anticipated to endanger public health and welfare”, as provided in section 202(a) of the Clean Air Act (McCarroll, 2007). At issue for agency discretion is whether a lack of funding is an allowable justification for declining to promulgate a rule.
Administrative Agency Legal Framework
Article I, Section 1, of the federal Constitution states that all legislative Powers herein granted shall be vested in a Congress of the United States, the necessary and proper clause, in the eighth section of the same article, states that Congress shall have power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers in any Department or Officer thereof (U.S. Const. art. 1, § 1). With this language, many have argued that the Framers of the Constitution expected, indeed encouraged, the creation of powerful administrative agencies . The courts have allowed Congress and other
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