774
Breyer, J., dissenting
scope of Article I or Article III of the Constitution. Schechter Poultry, supra, at 529-530; Crowell, supra, at 50-53; see also INS v. Chadha, 462 U. S. 919, 953, n. 16 (1983) (agency's use of rulemaking "resemble[s]," but is not, lawmaking). Consequently, in exercising those powers, the agency is engaging in an Article II, Executive Branch activity. And the powers it is exercising are powers that the Executive Branch of Government must possess if it is to enforce modern law through administration.
This constitutional understanding explains why both commentators and courts have often attached the prefix "quasi" to descriptions of an agency's rulemaking or adjudicative functions. E. g., Humphrey's Executor v. United States, 295 U. S. 602, 629 (1935); 3 C. Koch, Administrative Law and Practice § 12.13 (2d ed. 1997); Shapiro, The Choice of Rule-making or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921, 954-958 (1965); Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 863, 869-870 (1962). The terms "quasi legislative" and "quasi adjudicative" indicate that the agency uses legislative like or court like procedures but that it is not, constitutionally speaking, either a legislature or a court. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472-473 (2001); Freytag, supra, at 910 (Scalia, J., concurring in part and concurring in judgment).
The case before us presents a fairly typical example of a federal administrative agency's use of agency adjudication. Congress has enacted a statute, the Shipping Act of 1984 (Act or Shipping Act), 46 U. S. C. App. § 1701 et seq. (1994 ed. and Supp. V), which, among other things, forbids marine terminal operators to discriminate against terminal users. § 1709(d)(4) (1994 ed., Supp. V). The Act grants the Federal Maritime Commission the authority to administer the Act. The law grants the Commission the authority to enforce the Act in a variety of ways, for example, by making rules and
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