ADMINISTRATIVE AGENCIES, PART 4--REGULATING THE REGULATORS

Except for limits imposed by legislatures, most constraints on the power of administrative agencies are judicial, arising in court cases. These include:

1. Administrative action beyond the scope of statutory power and authority. Since agencies are creatures of statutes, they have only the powers delegated to them by legislatures, as those statutes are interpreted by courts. If a court concludes that an agency action exceeds its authority, the action will be void.

2. Denial of procedural due process. The constitutional guarantee of due process extends to agency adjudicatory proceedings. Examples of denials of due process could include the denial of a hearing or appeal to a court from adverse agency decisions.

3, Confiscation. An agency decision which takes property without just compensation would also be contrary to a constitutional protection. An example could be an agency setting rates for utility service below the costs of service.

4. Arbitrary or prejudicial action. Obviously, if an agency rejects uncontroverted, relevant evidence, a court may find its decision to be arbitrary and capricious.

5. Decisions contrary to the manifest weight of the evidence. While courts generally do not make new evidentiary decisions per se on appeal from agency decisions, they do review the agency's record to determine whether the decision may be contrary to the manifest weight of the evidence.

6. Failure to make findings of fact. Agency adjudicatory decisions generally are required to include the agency's findings of fact based upon the evidentiary record before the agency. The primary purpose of the findings requirement is to enable courts on appeal to determine whether the agency decisions are supported by the evidence. Courts have differed as to what makes findings sufficient and sufficiently specific.

7. Failure to follow agency rules. Courts have reversed agency decision in situations where an agency has failed to follow its own procedural or substantive rules in reaching a decision.

8. Misconstruing a statute or prior court decisions. In the event that an agency incorrectly interprets a relevant statute or court precedent, a reviewing court may reverse an agency decision as a matter of law.

How effective are such constraints in regulating the action by administrative agencies? As a practical matter, the recourse for a party adversely affected by an agency decision is to appeal to the courts or to accept the decision. Requests for rehearing generally not granted. Appeals can be costly, take time, and may not suspend the effectiveness of the adverse agency action. Appellants also may find that some reviewing courts tend to slant toward the agency, particularly where the subject matter may be technical or scientific. Thus, some courts simply defer to the alleged "expertise" of the agency.