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Admin law slideshare

  1. 1. U.S. Law An Introduction to Administrative LawFebruary 1, 2009 Page 1
  2. 2. Structure of Government● What do we mean by separation of powers? – give examples● What do we mean by checks and balances? – give examples February 1, 2009 Page 2
  3. 3. Source of Administrative Law● Constitution● Statutes – enabling acts● Case Law● Regulations – Enforcement rules and interpretations● Administrative Decisions February 1, 2009 Page 3
  4. 4. Agencies● Broad Definition – every non-military entity other than courts and legislature. – Kinds: regulatory and welfare, Executive and Independent. – Each exist on Federal and State levels● Each has rule-making, enforcement and adjudication powers. – how does this fit within the idea of separation of powers and check and balances? February 1, 2009 Page 4
  5. 5. Independent Agencies● Exist “outside” of the Executive Branch● Created by Congress to be independent – Usually headed by a commission or board ● Appointed by President, confirmed by Senate, serving staggered terms. ● President can removed commissioners pursuant to statutory authority.● Examples: – Federal Communications Commission (FCC), Federal Election Commission (FEC) February 1, 2009 Page 5
  6. 6. Creation of Agencies● Created by enabling statutes which describe the agencys structure, purpose and powers. – The enabling statute contains a legislative delegation of rule making power.● The delegation of power must specify: – Who and what are the subject of the regulation. – The harm to be prevented. – Guidance as to how the prevention will be carried out. February 1, 2009 Page 6
  7. 7. Executive AgenciesFebruary 1, 2009 Page 7
  8. 8. U.S. Department of InteriorFebruary 1, 2009 Page 8
  9. 9. The Fourth Branch● Explosion of number and size of administrative agencies in 1900s.● Administrative Procedures Act (1946) created to create uniformity. – Regulates rule-making, adjudication and other activities. February 1, 2009 Page 9
  10. 10. Types of Agency Actions● Rulemaking – Promulgation of regulations that generally have the same effect of law as if it was passed by Congress.● Adjudication – Applying existing rule to set of facts to determine what outcome is required by statute or rule.● Investigations – Determining whether someone may be in violation of rule. February 1, 2009 Page 10
  11. 11. Rule-Making● “Legislative Rules” set substantive and procedural law that must be followed by the agency and those over which it has jurisdiction. – Informal Rule-Making ● Notice and Comment Procedure – Formal Rule-Making – Hybrid Rule-Making – Exception allows for “interim final rule” ● only in cases of “emergency” where notice and comment would be impracticably, contrary to public interest. February 1, 2009 Page 11
  12. 12. Administrative Procedures Act● Defines: – Procedural rights of people outside government who are impacted by agency actions, and – the manner is which persons inside the government make decisions.● Applies primarily to rulemaking and adjudication. February 1, 2009 Page 12
  13. 13. Informal Rule-Making● § 553 of APA establishes 3-step informal rulemaking procedure: – Publication of notice ● Exceptions: interpretative rules and when good cause exists. – Opportunity for public input ● Can be written or oral at agency discretion – Publication of final rule with statement of basis and purpose. February 1, 2009 Page 13
  14. 14. Formal Rule Making● Rarely used. – Required when “rules are required by statute to be made on the record after an opportunity for agency hearing.”● Looks like a formal adjudicatory hearing. – A “trial-like hearing.” February 1, 2009 Page 14
  15. 15. Hybrid Rulemaking● Not required by APA. Usually required by Congress in enabling statute.● Combines elements of both informal and formal rulemaking. – EXAMPLE – Federal Trade Commission ● Must include “informal hearing” at which interested parties can give oral testimony and possibly present and cross-examine witnesses. February 1, 2009 Page 15
  16. 16. Finding Regulations● All regulations are published in the Code of Federal Regulations (C.F.R.). – Organized by subject matter – The Code is usually quite out-of-date.● All regulations are published immediately in the Federal Register. – Daily publication. February 1, 2009 Page 16
  17. 17. Federal Register 1, 2009 Page 17
  18. 18. Rule-Making Outside the APA● Interpretive Rules – interpret existing legal standard – no procedural requirements● Statement of Policy – states future intentions of the agency February 1, 2009 Page 18
  19. 19. Interpretive RuleFebruary 1, 2009 Page 19
  20. 20. Adjudicatory Functions● Adjudication takes place every time an agency takes action that is not in the form of a rule. – Two types: formal and informal● Examples: – appeal for denial of welfare benefits – unfair labor practices claim against employer – revocation of stock brokers license● Whether formal adjudication is available depends on the statute. February 1, 2009 Page 20
  21. 21. Adjudication under the APA● If an agency is required to provide a formal process, the general requirements of the process are: – Notice must be given to the parties – Parties must be given opportunity to reach settlement – Person presiding over hearing is prohibited from ex parte communications – Hearing must meet certain procedural guidelines February 1, 2009 Page 21
  22. 22. Adjudication under the APA● Hearing before the Administrative Law Judge – the centerpiece of APA formal adjudication. – the ALJ is an expert in the field, an employee of the agency, yet must remain independent of the agency. – APA mandates strict separation between ALJ and the agency. February 1, 2009 Page 22
  23. 23. Hearing Before ALJ● ALJ sits as trier of fact and issues legal opinions. – decision must be based solely on facts gathered at hearing (“on the record”). – Some hearings are adversarial, some are inquisitorial. – No absolute right to oral hearing or cross examination of witnesses – Standard of Proof: Preponderance of the Evidence February 1, 2009 Page 23
  24. 24. Hearing Before ALJ● Rules of Evidence – Federal Rules of Evidence generally do not apply. – Hearsay is generally admissible.● The Impact of ALJ Decision – Varies from agency to agency ● In all agencies ALJs job is collect evidence for Department. ● Recommendation, Decision Subject to Modification, Final Agency Decision February 1, 2009 Page 24
  25. 25. Reach of Agency Decisions● Agency Decision as Precedent – often decisions are not published – when published, may have precedential effect● Agency Decision as Lawmaking – a few agencies give full stare decisis effect to agency decisions. – Isnt this lawmaking? ● No says U.S. Supreme Court February 1, 2009 Page 25
  26. 26. Due Process● No person shall “be deprived . . . of liberty or property without due process of law.” ● 5th and 14th Amendments to the U.S. Constitution● Two Step Analysis: – Is there a deprivation? – What process is due? ● what procedural safeguards are required? February 1, 2009 Page 26
  27. 27. Defining Liberty and Property● Property and Liberty have been defined broadly by courts. – EXAMPLES: ● welfare benefits are property ● denial of parole from prison involves liberty ● a drivers license is property – The deprivation occurs when the claimant is denied liberty or property by the agency. February 1, 2009 Page 27
  28. 28. Procedural Safeguards Required● If there is no deprivation of liberty or property, one never reaches this part of the analysis.● Ranges from: – full hearing (“the standard bundle of rights”) to an informal hearing – depends on nature of the deprivation involved. ● More serious = more safeguards required● Government is allowed to act emergency without regard to due process. February 1, 2009 Page 28
  29. 29. Determining Seriousness● Eldridge “Cost Effectiveness” Test balances three factors: – The seriousness of the deprivation – The risk of erroneous deprivation and the likely effectiveness of the proposed procedure to reduce the risk. – The governments interest in avoiding additional procedure ● Includes analysis of cost and administrative burdens. February 1, 2009 Page 29
  30. 30. Hamdi v. Rumsfeld Example ● American citizen captured in Afghanistan. ● Labeled as “enemy combatant” by Pres. Bush. ● Detained without Yaser E. Hamdi after hearing, access to his arrest in Afghanistan in December 2002. counsel.February 1, 2009 Page 30
  31. 31. Administrative Law Judicial ReviewFebruary 1, 2009 Page 31
  32. 32. Review of Agency Action● No separate Administrative Law court. – Appeals of agency decisions go into state and federal court just like any other matter.● Applies to both rule-making and adjudication.● Goal is to make sure that agency decisions are rational and legally appropriate.● Right to judicial review is either defined specifically by statute or generally in APA. February 1, 2009 Page 32
  33. 33. Procedural Aspects● Exhaustion of administrative remedies. – Claimant must obtain a final decision from the agency before they can go into court. ● Obtaining a “final decision” may be a multi-step process in some agencies. – Exception: when claimant want to challenge the law.● Means of Obtaining Review – usually file petition with court February 1, 2009 Page 33
  34. 34. Scope of Review● Review of Fact Determinations – Generally must be followed if supported by “substantial evidence”● Review of Legal Determinations – Chevron Deference: when agency interpretation of law is part of agency rule created via the notice and comment process, court must follow the interpretation. February 1, 2009 Page 34
  35. 35. Review of Discretionary Action Overton Park v. VolpeFebruary 1, 2009 Page 35
  36. 36. Review of Discretion● When decisions are deemed by statute to be at the sole discretion of agency, they are not reviewable. – However, if statute sets forth standards to be used when exercising discretion, then court can review to see whether process was used. – NOTE – court can also review actions that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” February 1, 2009 Page 36
  37. 37. Checks on Power● What are some examples of how agency power can be controlled by the three branches of government? February 1, 2009 Page 37
  38. 38. The Legislative Veto● Immigration and Naturalization Service v. Chada – What was the adjudicatory process set up by the Immigration Act? – Why does Justice Burger strike down the use of this legislative veto? – This was a veto over an adjudicatory decision. Should Congress still have the right to veto rules? February 1, 2009 Page 38