Administrative Agencies

     Administrative agencies, often described as an informal "fourth branch" of your government, combine legislative, executive, and judicial powers. Congress delegates its power to agencies when it lacks the time or expertise to delve into details Delegation doctrine attempts to resolve conflicts between the need to dele gate on the one hand, and the need to preserve the Constitution's formal arrangement of powers, on the other.

     The history of federal agencies is largely a history of increasing government regulation of the marketplace. Agencies created before and during the New Deal tend to regulate specific industries. In the 1960s and 197Os, Congress set up agencies that attempted to achieve social goals cutting across industry lines. The concept of market failure is one explanation of the government's efforts at regulation. Business and government can be adversaries, but the U. S. government also supports business in many ways.

     The Administrative Procedures Act outlines the process for notice-and comment rule-making formal rule-making, and formal adjudication, all of which cover only about 10 percent of agency actions. Formal adjudication remedies past wrongdoing by settling factual disputes among individuals. Rule-making applies to the future and to the public at large, but adjudication, too, produces general policy because each case sets a precedent. Many scholars think it would promote fairness and efficiency if the older agencies relied more on rule-making and less on adjudication. Agency-made procedures that provide for due process govern the remaining 90%o of agency actions.

     All three formal branches of government control the "fourth branch. " The President runs the executive agencies by appointing and removing executive officials, reorganizing the structure of the executive branch with the consent of Congress, issuing executive orders, wielding substantial fiscal power, and controlling litigation on behalf of agencies. The 57 independent agencies and government corporations are protected from executive control. However, all agencies get both their political authority and their budgets from Congress, which controls them through fiscal power, the power to withdraw or modify their operating authority, the power to veto appointments, and direct oversight of agency action. Although the legislative veto has been ruled unconstitutional, Congress can still override agency actions by passing new laws.

     Nearly all the decisions and rules that federal agencies make can be appealed to the federal courts. Federal courts, however, usually judge only questions of law, not questions of fact, and they consider only cases that meet the tests of standing, ripeness, and exhaustion. When the federal courts do try a case arising from an agency's acts or failure to act, they can compel action or set aside any agency action that has been ruled arbitrary, unconstitutional, or unwarranted. In the 1970s and early 198Os, many industries were deregulated-a course whose wisdom is still being debated.