1	The Bureaucracy-The Executive Branch American bureaucracy today is an important fourth branch of the government. The administrative branch is lumped under the Executive and is considered to be subordinate to the president.
2	The Administrative Branch The administrative branch today stands at the very center of our governmental process; it is the keystone of the structure. Administrative agencies exercise legislative and judicial as well as executive functions--a fact that is often overlooked.
3	Administrative Accountability The bureaucracy is often autonomous, acting outside of the control of Congress, the president, and even the judiciary. This fact raises an important problem for our constitutional democracy: How can the bureaucracy be kept responsible if it does not fit into the constitutional framework that was designed to guarantee limited and responsible government?
4	Constitutional Context Even though the Constitution does not explicitly provide for the bureaucracy, it has had a profound impact upon the structure, functions, and general place that the bureaucracy occupies in government. The administrative process was incorporated into the constitutional system under the heading of "The Executive Branch." But the concept of "administration" at the time of the adoption of the Constitution was a very simple one, involving the "mere execution" of "executive details," to use the phrases of Hamilton in The Federalist.
5	Hamilton's Executive Branch Federalist 72: The persons, therefore, to whose immediate management the different administrative matters are committed ought to be considered as Assistants or Deputies of the Chief Magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence.
6	Role of Congress Congress retains primary control over the organization of the bureaucracy. It alone creates and destroys agencies, and determines whether they are to be located within the executive branch or outside it. This has enabled Congress to create a large number of independent agencies beyond presidential control.
7	Congressional Powers Congress has the organic power, to create agencies and define their powers and jurisdiction. Congress has the authority to control appropriations and exercise administrative oversight (Legislative Reorganization Act of 1946) Finally, the Constitution gives to the legislature the power to interfere in high-level presidential appointments, which must be "by and with the advice and consent of the Senate."
8	The President as Chief Administrator Hamiltonian Norm Presidents Committee on Administrative Management (1937) Constitution Unclear on Control of the Administrative Branch--Separation of Powers Means Separation of Control
9	Agencies Exercise Quasi-Legislative and Quasi-Judicial Powers Agency Rule-Making: Notice and Comment Requirements of the Administrative Procedure Act (1946 as amended) Agency Adjudication: Formal and Informal Administrative Discretion in Enforcement of the Laws of Congress
10	Presidential Controls Appointive Power (by and with the advice and consent of the Senate) Directive Power (Limited by Law and Political Considerations--agency and department clientele groups
11	Presidential Limits Agencies must act under their delegated powers given by Congress Presidential Power is the Power to Persuade, not Prerogative Power (Neustadt) Courts Limit Presidential Powers to Remove Quasi-legislative and Quasi-Judicial Officials (Humphrey's case, 1935)
12	Judicial Review of Agency Rule-Making and Adjudication Administrative Procedure Act sec. 702. Right of review A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
13	Scope of Judicial Review 706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.
14	Judicial Review APA sec. 706 The reviewing court shall - (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;
15	Judicial Review sec. APA sec. 706 The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be – C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;
16	Judicial Review--APA Sec. 706 The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be: E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.