Overview of Administrative Law

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

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

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

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

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

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

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

Organization of Agencies

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

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.

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

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.

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.

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

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.

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.

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

Areas of Agency Practice

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

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.