Administrative Agencies

• Author: Joseph Vining
• Pages: 36-38

Page 36

Administrative agencies, often called the "fourth branch," are entities of government that make decisions within particular

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substantive fields. Although these fields range over the full spectrum of public concern, the specificity of agencies' focus distinguishes them from other decision-making entities in the constitutional structure?the judiciary, the presidency, the Congress, indeed the individual citizen?each of which can be taken to have a scope of interest as broad as imagination will allow.

Agencies are perceived and known as such virtually without regard to their form or institutional location. They may be independent agencies?that is, not associated with any Article II executive department?which are generally administered by officials protected by law from the President's removal power. The Interstate Commerce Commission is such an agency, established over a century ago to decide entry, rates, and standards of service in the field of transportation. Alternatively, an agency may be found deep within an executive department, as the Food and Drug Administration is found within the Department of Health and Human Services. Or an agency may be identified with a cabinet officer in his or her capacity as administrator of a program. Agencies may have a handful of employees or they may have thousands. Large or small, they may speak through single individuals or through multimember collegial bodies, usually known as commissions.

The Administrative Procedure Act of 1946 serves as a second-level constitution for agencies of the federal government, specifying procedures and structural relations within and among them, and between them and other entities. But agencies are only presumptively subject to the Administrative Procedure Act?the Selective Service system, for example, has been exempted by Congress?and the act itself is in substantial part a restatement of the combination of COMMON LAW and constitutional law known as ADMINISTRATIVE LAW, which has been developing virtually since the beginning of the Republic in response to agencies' decision-making and enforcement activities.

Agencies have their origins as alternatives to Article III courts, making decisions in suits between individuals and to executive officials making decisions and seeking to enforce them in court suits. More recently agencies also have been seen as alternatives to decision making by legislative process through Congress and the President under Article I. Agencies have thus presented a difficulty for constitutional...