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    Admin law slideshare Admin law slideshare Presentation Transcript

    • U.S. Law An Introduction to Administrative LawFebruary 1, 2009 Page 1
    • 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
    • Source of Administrative Law● Constitution● Statutes – enabling acts● Case Law● Regulations – Enforcement rules and interpretations● Administrative Decisions February 1, 2009 Page 3
    • 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
    • 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
    • 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
    • Executive AgenciesFebruary 1, 2009 Page 7
    • U.S. Department of InteriorFebruary 1, 2009 Page 8
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • Federal Register http://www.gpoaccess.gov/February 1, 2009 Page 17
    • 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
    • Interpretive RuleFebruary 1, 2009 Page 19
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • 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
    • Administrative Law Judicial ReviewFebruary 1, 2009 Page 31
    • 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
    • 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
    • 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
    • Review of Discretionary Action Overton Park v. VolpeFebruary 1, 2009 Page 35
    • 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
    • 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
    • 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