Overview of Administrative Law

1
Overview of Administrative Law
2
History of Administrative Law
3
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.

4
The Colonial Period

• Colonial governments had agencies that were
  either controlled by the king or by local
  governments
• 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

5
Articles of Confederation

• After independence, but before the Constitution,
  the states were independent sovereigns
• The Articles did not provide for a central
  government with binding powers
• All agency action was state and local
• This did not work very well and almost cost us
  the revolutionary war

6
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 federal delegation was flexible, not
  enumerated

7
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

8
Administrative Law in the States

• From the Constitutional period until the Great
  Depression, most government was state and local
• While some see this period as one of limited
  regulation, that is only true at the federal
  level
• The states and cities had extensive regulatory
  laws and agencies
• Most administrative law (most government) is
  still carried out at the state level
• Many regulatory system are shared federalism
• Environmental law
• Medicaid

9
The Federal Administrative Law System

• While there was federal regulation before the
  1930s, the modern regulatory state began with the
  Great Depression
• 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
• Most major Supreme Court cases on adlaw date from
  the 1970s

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Organization of Agencies
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Branches of Government

• Legislative Branch
• Creates agencies and pays for government
• Executive Branch
• Enforces laws
• Protects the national security
• Judicial Branch
• Determines the constitutionality of laws
• Resolves conflicts between state and federal law

12
Separation of Powers

• Enforcement agencies must be in the executive
  branch
• Agencies that do not do enforcement may be in any
  branch
• Most executive branch agencies are under the
  control of the President through the appointments
  process, as laid out in the Constitution
• Independent agencies are under more limited
  control.

13
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
• Congress has political trouble using the power

14
Independent Agencies

• Congress created independent agencies to reduce
  the power of the president.
• These are headed by boards whose members are
  appointed by the president
• They serve fixed, staggered terms
• They can only be removed for good cause
• They are still in the executive branch
• This limits the ability of a new president to
  affect the course of the agency, and prevents
  political pressure on sitting agency
  commissioners.
• This is not in the constitution but has been
  accepted by the courts.

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Agency Practice
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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.

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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

18
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
• Rulemaking is very important because most
  statutes passed by Congress do not contain
  sufficient detail to be enforced without
  additional agency regulation.
• The terms rule and regulation are interchangeable.

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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 individuals
  constitutional rights or commit a tort?
• Biggest difference from private and criminal law
• The courts generally defer to the agency.

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Administrative Law Practice

• Counsel clients how to operate within regulations
• Represent clients before agencies
• Litigate against agencies
• Represent clients in the development of agency
  policy and regulations

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Areas of Agency Practice

• Tax
• Environmental law
• Securities law
• Land use law
• Health law
• Energy law
• Etc.

22
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.