Introduction to Administrative Law

Spring 2014

What does Administrative Law Deal With?

The formation, staffing, and funding of agencies. Rulemaking (legislation) by agencies Adjudications (trials) by agencies Judicial review of agency action Access to private information by agencies Public access to agency information Agency liability

History of Administrative Law

The Administration of Government

Moving beyond feudalism, all governments are divided into functional units that behave as agencies

Administrative law deals with agencies in the executive branch of the federal government State administrative law is more complex

because states have multiple executives and less separation of powers.

The Colonial Period

Colonial governments had agencies that were either controlled by the king or by local governments Boards of health

Major cities were more powerful entities than most states To this day, old cities have varying degrees of

special legal status Much of the regulatory state was urban

Articles of Confederation

After independence, but before the Constitution, the states were independent sovereigns

All agency action was state and local The Articles did not provide for a central

government with binding powers This did not work very well and almost cost us

the revolutionary war

The Constitutional Allocation of Powers

The Constitution provided for a national executive, legislature, and courts with binding powers over the states

The states were left all powers not allocated to the federal government Police powers (most traditional state and local

regulation) The delegation was flexible, not enumerated

Administrative Law in the Constitution

The Constitution did not contemplate a large federal government The Constitution established the framework for

separation of powers and basic functions of the government, but is largely silent on the law of agencies

This was not important at the time because day to day government was run by states and cities

Original intent analysis does not work in adlaw

Administrative Law in the States until the New Deal

The states and cities had extensive regulatory laws and agencies While some see this period as one of limited

regulation, that is only true at the federal level Most administrative law (most government) is still

carried out at the state level Most federal regulatory programs are shared

federalism Environmental law Medicaid

The Great Depression

While there was federal regulation before the 1930s, the modern regulatory state began with the Great Depression.

Federal agencies were formed to provide jobs WPA

Agencies were formed or strengthened to regulate business FDIC, SEC

This lead to the constitutional fight over the delegation doctrine.

World War II

The role of the federal government was greatly expanded to fight World War II

The military did not disband after WW II because we went into the Cold War

The federal government also did not disband, beginning the modern regulatory state

Modern Supreme Court admistrative law jurisprudence starts in the 1960s

Organization of the Government

Legislative Branch

Is there a head of Congress? How much control do the heads exercise? What Does Congress Do?

Judicial Branch

Is there a head of the courts? How much control does the head exercise? What do the Courts do?

Executive Branch

Who heads the executive branch? What is the domestic role of the executive

branch? How is this different in Louisiana?

The Creation of Agencies

Since the Constitution is mostly silent on agencies, federal agency powers are rooted in statutes

Congress delegates power to the agency and provides the money to run the agency.

Congress can abolish agencies, change their powers, and fund or defund them, subject only to presidential veto power. Congress cut off money to move Guantanamo

prisoners to US prisons Congress ultimately holds the power in government

Congress has political trouble using the power

Separation of Powers

Enforcement agencies such as the EPA must be in the executive branch Agencies that do not do enforcement may be in

any branch Executive branch agencies are under the control

of the President through the appointments process, as laid out in the Constitution The president has more attenuated control of

independent agencies

Agency Practice

The Administrative Procedure Act (APA)

The Administrative Procedure Act provides the general framework for the interaction of between the agency, regulated parties, and the general public. http://biotech.law.lsu.edu/Courses/study_aids/adla

w/index.htm The APA is secondary to the statutes that establish

an agency. The APA only controls when the enabling act is

silent.

Rulemaking

Congress can give agencies the power to make rules that have the same legal effect as statutes.

The public is given a chance to see and comment on these rules before they become final. Proposed rules are published in the Federal Register Final rules are codified in the Code of Federal Regulations.

Rulemaking is important because most statutes passed by Congress do not contain sufficient detail to be enforced without additional agency rulemaking.

The public can petition the agency to make a rule.

Adjudications

Congress can give agencies the power to make factual determinations and issue orders

This determination of facts and enforcement in individual cases involving specific named parties is called an adjudication

These can look like trials, complete with independent judges and rules of evidence

They can also be as informal as inspecting a restaurant or impounding a bad dog

The Collection of Data by Agencies

What types of data does the government collect? IRS? - NSA?- HHS?

Reporting duties Administrative subpoenas Administrative searches

Not based on probable cause No exclusionary rule

Little expectation of privacy unless provided for by a federal law or common law privilege.

Access to Agency Information

Freedom of Information Act What is available? When can the government withhold

information? What is the standard for judicial review?

The Privacy Act Open Meeting Act

The Role of the Courts

Is the enabling law constitutional? Are the regulations consistent with the enabling law and

properly promulgated? Did the agency act in an arbitrary and capricious manner

in an adjudication? Did the agency violate an individual’s constitutional

rights?

Judicial Deference to the Agency

Biggest difference from private and criminal law: The courts generally defer to the agency.

Chevron Deference Does the statute clearly prohibit or allow what the

agency wants? If the statute is ambiguous, the court allows the

agency to act it is reasonable. Skidmore/Barnhart

The agency is only persuasive