Overview of Administrative Law. History of Administrative Law

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  • Overview of Administrative Law

  • History of Administrative Law

  • The Administration of GovernmentMoving beyond feudalism, all governments are divided into functional units that behave as agenciesAdministrative law deals with agencies in the executive branch of the federal governmentState administrative law is more complex because states have multiple executives and less separation of powers.

  • The Colonial PeriodColonial governments had agencies that were either controlled by the king or by local governmentsMajor cities were more powerful entities than most statesTo this day, old cities have varying degrees of special legal statusMuch of the regulatory state was urban

  • Articles of ConfederationAfter independence, but before the Constitution, the states were independent sovereignsThe Articles did not provide for a central government with binding powersAll agency action was state and localThis did not work very well and almost cost us the revolutionary war

  • The Constitutional Allocation of PowersThe Constitution provided for a national executive, legislature, and courts with binding powers over the statesThe states were left all powers not allocated to the federal governmentPolice powers (most traditional state and local regulation)The federal delegation was flexible, not enumerated

  • Administrative Law in the ConstitutionThe Constitution did not contemplate a large federal governmentThe Constitution established the framework for separation of powers and basic functions of the government, but is largely silent on the law of agenciesThis was not important at the time because day to day government was run by states and citiesOriginal intent analysis does not work in adlaw

  • Administrative Law in the StatesFrom the Constitutional period until the Great Depression, most government was state and localWhile some see this period as one of limited regulation, that is only true at the federal levelThe states and cities had extensive regulatory laws and agenciesMost administrative law (most government) is still carried out at the state levelMany regulatory system are shared federalismEnvironmental lawMedicaid

  • The Federal Administrative Law SystemWhile there was federal regulation before the 1930s, the modern regulatory state began with the Great DepressionThe role of the federal government was greatly expanded to fight World War IIThe military did not disband after WW II because we went into the Cold WarThe federal government also did not disband, beginning the modern regulatory stateMost major Supreme Court cases on adlaw date from the 1970s

  • Organization of Agencies

  • Branches of GovernmentLegislative BranchCreates agencies and pays for governmentExecutive BranchEnforces lawsProtects the national securityJudicial BranchDetermines the constitutionality of lawsResolves conflicts between state and federal law

  • Separation of PowersEnforcement agencies must be in the executive branchAgencies that do not do enforcement may be in any branchMost executive branch agencies are under the control of the President through the appointments process, as laid out in the ConstitutionIndependent agencies are under more limited control.

  • The Creation of AgenciesSince the Constitution is mostly silent on agencies, federal agency powers are rooted in statutesCongress 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 prisonsCongress ultimately holds the powerCongress has political trouble using the power

  • Independent AgenciesCongress created independent agencies to reduce the power of the president.These are headed by boards whose members are appointed by the presidentThey serve fixed, staggered termsThey can only be removed for good causeThey are still in the executive branchThis 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.

  • 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/adlaw/index.htmThe APA is secondary to the statutes that establish an agency.The APA only controls when the enabling act is silent.

  • AdjudicationsCongress can give agencies the power to make factual determinations and issue ordersThis determination of facts and enforcement in individual cases involving specific named parties is called an adjudicationThese can look like trials, complete with independent judges and rules of evidenceThey can also be as informal as inspecting a restaurant or impounding a bad dog

  • RulemakingCongress can give agencies the power to make rules that have the same legal effect as statutesThe public is given a chance to see and comment on these rules before they become finalRulemaking 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.

  • The Role of the CourtsIs 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.

  • Administrative Law PracticeCounsel clients how to operate within regulationsRepresent clients before agenciesLitigate against agenciesRepresent clients in the development of agency policy and regulations

  • Areas of Agency PracticeTaxEnvironmental lawSecurities lawLand use lawHealth lawEnergy lawEtc.

  • Suing Agencies for TortsLearn about exhaustion of remediesLearn about how the standards for judicial review of agency decisionmaking differ from private and criminal litigationLearn the procedure and limits on the government for damages caused by agenciesSovereign immunityTort claims actsStatutory immunity such as the Flood Control Act of 1928.