Introduction to Administrative Law

Spring 2016
 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
 Law Practice Reasons to Study
Administrative Law

 Some is on the bar

 Procedural due process and standing

 The majority of lawyers do admistrative practice

some or most of the time.
 Malpractice trap if you do not recognize adlaw

problems.
 Fundamentally different approach than non-
agency courses.
 Administrative Law Practice

 Work for agencies.

 Counsel clients how to operate within regulations.
 Represent clients before agencies.
 Litigate against agencies.
 Represent clients in the development of agency
policy and regulations.
 Areas of Administrative Law Practice

 Tax
 Environmental law
 Securities law
 Land use law
 Health law
 Energy law
 Etc.
 The Approach in this Course

 This is not a first year course.

 You will be expected to learn basic material on
your own (reading) outside of class.
 You do not have to dig this out of cases, you
will have the book and notes (modules) to use.
 Class time and discussion will be used to look
more deeply into the legal and policy issues in
administrative law.
 I reserve the right to use participation points.
 Why Do We Talk about Policy in Adlaw?
 90% of private administrative law practice is working
with the agency for your client, not suing the agency.
 90% of the time of agency lawyers is spent outside of
litigation.
 Internal adjudications

 Rulemaking

 Problem solving with regulated parties.

 You have to know the law, but you also have to know
how the agency functions.
 Course Materials
 The E&E book
 Basic intro to administrative law – read it all

 Full text cases in specific regulatory areas.

 Learn to sort out issues in real cases

 Learn to deal with the underlying facts

 Regulatory materials
 What do regulatory documents look like?

 How do you read long documents?

 Class discussion of issues that come up in the news.

 Study and Discussion Aids
 PowerPoint slides
 These will be used at times in the course to present
background material on regulatory problems or special legal
areas.
 They will also be used in some class to present discussion
questions.
 They are not meant to be a summary of the course.

 Modules
 These are meant to be basic class notes to help you learn the
basics so we can have a higher level discussion in class.
 They include evaluation questions to help you prepare for
the exam.
 Learning Objectives for the Course
 Administrative law literacy
 Key cases
 Recognize administrative law issues
 How to deal with agencies
 How agencies are and must be political
 Cost-benefit analysis
 Unintended consequences of regulatory decisions
 A hard look at a few regulatory problems.
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
 Took over private business for the war effort.

 Intruded in private life (rationing, etc.) for the

war effort.
 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
 Post World War II

 Modern administrative law starts with the

Administrative Procedure Act in 1946.
 Modern Supreme Court admistrative law
jurisprudence starts in the 1960s as the
regulations increase and Court starts to work out
the proper role of agencies.
The Modern Administrative State
 Separation of Powers – Federal
Government
 The US Governments is divided Into three branches:
 Legislative Branch

 Executive Branch

 Judicial Branch

 The executive branch is headed by the president. The

president and the vice president are the only nationwide
office holders.
 Each branch has unique powers.
 Each branch was intended to keep the others in check.
 The founders did not anticipate political parties. 22
 Separation of Powers – State Government

 State governments are also divided Into three

branches:
 Legislative Branch

 Executive Branch

 Judicial Branch

 The executive branch in state governments is

divided among several statewide office holders
with powers independent of the governor.
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 Hierarchy of Laws

 The United States Constitution is the ultimate

source of law, preemption conflicting state and
federal laws.
 In theory, treaties prevail over conflicting state
and federal laws, but congress is reluctant to
ratify treaties that preempt domestic law.
 Federal law preempts conflicting state laws.

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 Agencies are Established by the
Legislature

 The agency enabling statute establishes the

agency's:
 Powers and Duties

 Organization

 Funding

 Standards for Judicial Review of the Agency's

Actions
 Some state agencies are established by the state
constitution or constitutional amendments. 25
 Agencies only have the Power Given by
the Legislature
 General Grant of Power
 Public health laws

 Specific Grants of Power

 Narrowly drawn statutes such as the Americans
with Dishabilles Act.
 Contingent Grants of Power.
 Laws that are triggered by a declaration of a state
of emergency.
 The Legislature cannot grant the agency more power
than the legislature itself can exercise
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 Executive Control in the Federal
Government

 All enforcement agencies are in the Executive

branch.
 Enforcement can include orders to comply with

the law, fines, and criminal prosecution.

 Congress can control agencies that only do
studies and investigations, such as the
Congressional Budget Office or the Library of
Congress.
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 Executive Control in the States

 States have several elected executives that

control agencies, not a single head like the
president.
 The governor controls most agencies.

 The attorney general controls the legal office.

 Other state offices, like state auditor, also have

elected heads.
 Some states even allow legislative agencies with
enforcement powers
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 Legislative Oversight of Agency
Appointments

 The US Constitution provides that the senate

must approve the appointment of officers of the
United States.
 The heads of most executive branch agencies,
and some of their subordinates, are officers of the
United States and thus must be approved by the
Senate.
 The Senate can use this to threaten agencies
when the president is from another party.
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 Removal of Agency Heads
 Most agency directors in the state and federal system
serve at the pleasure of the executive
 This is a major source of executive control over
agencies
 Some agencies, called independent agencies, are run by
boards or commissions.
 Members have fixed, staggered terms and can only be
removed for bad conduct
 This limits executive control and gives the agency
some independence from political pressure
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 Non-Agencies and Administrative Law

 The President is not an agency.

 The military is a quasi-agency
 An agency for many organizational and procurement

purposes
 Not an agency for military actions

 DOJ, police departments, and courts

 Agencies for basic governance

 Not agencies for their substantive criminal law work.

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 Agencies are the Vehicle for Carrying out
Political Policy

 Enforcement policy
 When does a business get a second chance and when

do they get closed for violating regulations?

 When do you use quarantine and isolation?

 Fiscal policy
 Which diseases do you investigate when you have

limited staff?
 What programs are cut when the budget is cut?

 Changes of government can profoundly change agencies

32
 Changing Agency Policy
 Executive branch control
 Replace the agency director

 Use Executive Orders to direct agency policy

 Legislature
 Change the enabling law

 Increase or eliminate the funding for agency functions

 Citizens
 Petition the agency to change regulations

 Participate in pubic hearings

 Lobby the executive and legislature

 Elect different politicians in the executive and legislature

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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 very important because most statutes passed

by Congress do not contain sufficient detail to be enforced
without additional agency rulemaking.
 The terms rule and regulation are interchangeable.
 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?
 Biggest difference from private and criminal law:
 The courts generally defer to the agency.
 Suing Agencies for Torts
 Learn about exhaustion of remedies
 Learn about how the standards for judicial review of
agency decisionmaking differ from private and
criminal litigation
 Learn the procedure and limits on the government for
damages caused by agencies
 Sovereign immunity

 Tort claims acts

 Statutory immunity such as the Flood Control Act

of 1928.