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Legislative and Judicial Functions of Agency in American Administrative Law

  • Public Land Law Review
  • Abbr : KPLLR
  • 2009, 45(), pp.433-454
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

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1가톨릭대학교

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ABSTRACT

Today, most agencies implement their mandates using both rulemaking and adjudication, although some use more of one the other. This combination of methods might raise issues of separation of powers if found in courts and legislatures, but the combination is essential for modern agencies to carry out the responsibilities assigned to them. There are two approaches that can be used in examining the practices regarding administrative agencies and comparing them to courts and legislatures. First, one can look at an agency that is issuing a rule and ask why the additional requirements of §553 were imposed, instead of allowing the agency to do what a legislature would do in enacting a statute that might closely resemble the agency's rule. Second, one can examine the question from the congressional perspective. Thus, because agencies function differently from Court, some of the judicial checks, such as strict on the record proceedings or complete separation of functions, will not be workable in an agency. Therefore, to both agency level, it is necessary to adopt additional agency procedure to assure that the essence of a neutral judiciary is protected at the administrative level without losing the advantages of having an entity that makes policy, enforces policy, and decides wether third parties have complied with that policy.

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