Administrative Agency

• Author: Jeffrey Lehman, Shirelle Phelps

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An official governmental body empowered with the authority to direct and supervise the implementation of particular legislative acts. In addition to agency, such governmental bodies may be called commissions, corporations (e.g., FEDERAL DEPOSIT INSURANCE CORPORATION), boards, departments, or divisions.

Administrative agencies are created by the federal Constitution, the U.S. Congress, state legislatures, and local lawmaking bodies to manage crises, redress serious social problems, or oversee complex matters of governmental concern beyond the expertise of legislators. Although Article I, Section 1, of the federal Constitution plainly states that "[a]ll 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 "[t]o 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." With this language, many have argued that the Framers of the Constitution expected, indeed encouraged, the creation of powerful administrative agencies. This argument prevailed, and courts therefore have allowed the U.S. Congress?and other legislative bodies?to make laws that delegate limited lawmaking authority to administrative agencies. The substance of an administrative agency's powers must be intelligible, and a system of controls must be in place to limit those powers, but courts almost always find that administrative agencies meet these requirements.

Administrative agency rules and regulations often have the force of law against individuals. This tendency has led many critics to charge that the creation of agencies circumvents the constitutional directive that laws are to be created by elected officials. According to these critics, administrative agencies constitute an unconstitutional, bureaucratic fourth branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary). In response, supporters of administrative agencies note that agencies are created and overseen by elected officials or the president. Agencies are created by an enabling statute, which is a state or federal law that gives birth to the agency and outlines the procedures for the agency's rule making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of the electorate.

Supporters of administrative agencies note also that agencies are able to adjudicate relatively minor or exceedingly complex disputes more quickly or more flexibly than can state and federal courts, which helps preserve judicial resources and promotes swift resolutions. Opponents argue that swiftness and ease at the expense of fairness are no virtues, but while the debate continues, administrative agencies thrive.

Governmental representation in an administrative capacity of any kind can be considered administrative agency. The president is an administrative agent whose enabling statute is the federal Constitution. The thirteen executive departments reporting to the president are administrative agencies. For example, the

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DEPARTMENT OF JUSTICE is a cabinet-level executive department, but it functions as the administrative agency that addresses the legal concerns of the U.S. government and its people. The departments housed within the Department of Justice, such as the DRUG ENFORCEMENT ADMINISTRATION and the FEDERAL BUREAU OF INVESTIGATION, are also administrative agencies, and they have procedures and rules of their own.

An administrative agency that falls under the direction of the EXECUTIVE BRANCH is referred to as an executive agency. However, an enabling statute may establish an independent agency, commission, or board, which does not fall under the direction of the president. The primary distinction between an executive agency and an independent agency is that the statute creating an independent agency typically precludes the president from removing the head of the agency without cause. By contrast, a head of an executive agency generally serves at the pleasure of the president. The U.S. Supreme Court on several occasions has considered whether independent agencies are constitutional. In Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), the Court held the President FRANKLIN D. ROOSEVELT could not remove the commissioner of the FEDERAL TRADE COMMISSION (FTC) without cause. The statute that created the commission permitted removal of the commissioner only for inefficiency, neglect of duty, or malfeasance of office. Roosevelt purported...