Administrative law

1. Administrative Law
Advanced Legal Research
Winter 2006

2. Legislative Branch
Judicial Branch
Executive Branch
Administrative Agencies
Judicial Functions
Legislative Functions
Executive Functions
investigation
enforcement
rulemaking
adjudicative hearings

3. “An administrative agency is a governmental
authority, other than a court and other than
a legislative body, that affects the rights of
private parties through either adjudication,
rulemaking, investigating, prosecuting,
negotiating, settling, or informally acting.”
Kenneth Culp Davis, Administrative Law and
Government 6 (2d Ed. 1975)
Definition

4. BIRTH OF ADMINISTRATIVE LAW
Franklin D. RooseveltFranklin D. Roosevelt
 Began about a century ago
 Greatly expanded during the New
Deal.
 Economic situation required rapid
governmental action and flexible
solutions.
 Amount/complexity of legislation
generated required specialized
oversight that Congress could not
provide.
 Next wave – 60s and 70s on
environment and health

5. AdministrativeAdministrative AgencyAgency StrengthsStrengths
 Agency deals with limited area of public
policy and can develop expertise
 Can hire people with skills and talents
needed for specific situations.
 Techniques and decision-making can be
tailored to meet the problem at hand.
 Action can be taken quickly.

6. Administrative Agency WeaknessesAdministrative Agency Weaknesses
 Administrative flexibility may simply mask
unchecked power by unelected officials.
 Continued exposure to the same issues may
lead to rigidity and ineffectiveness.
 Potential for overgrown bureaucracy and
burdensome regulations.

7. ENABLING LEGISLATIONENABLING LEGISLATION
 Congress creates the agency.
 Grants and enumerates the agency powers.
 Delegates rulemaking and decision-making
authority to the agency.
 Agency actions and powers may not exceed
the delegated authority.

8. Agency Powers Must Be Based
on Proper Delegation
 Article I, §1, of the Constitution vests ”all legislative powers in
the Congress.”
 Article 11 on Executive Branch: “[President] shall take care
that the law be faithfully executed.”
 Courts have used this clause to limit congressional delegation
of power to executive agencies. This text permits no
delegation of those powers.
 When Congress confers decision-making authority on
agencies it must “lay down by legislative act an intelligible
principle to which the person or body authorized to [act] is
directed to conform.” J.W. Hampton, Jr. & Co. v. U.S., 276
U.S. 394 (1928)

9. Types of Administrative
Actions
 Rules and Regulations
 Orders
 Licenses
 Advisory Opinions
 Decisions

10. Early Years of Agencies
 No official source for publication of rules
and regulations of federal agencies
existed.
 Agencies were not required to make their
rules and regulations available to the
public.
 This raised due process problems.

11. PANAMA REFINING CO. v. RYAN,
293 U.S. 388 (1935)
“The Hot Oil Case”
o Court invalidated agency’s enabling act
because “Congress has declared no policy,
has established no standard, has laid down
no rule.”
o Regulation at issue had been repealed prior
to defendant’s prosecution, repeal was not
discovered until the case reached the
Supreme Court.
o Led to legislation requiring that all federal
agency regulations be published.

12.  Federal Register Act - any regulation with general
applicability and legal effect must be published in the
Federal Register (Ch. 417, 49 Stat. 500 (1935))
 Federal Register first published in 1936.
 Contains, in chronological order, every regulation
and corresponding amendments, issued by federal
agencies.
 Published every business day.
Resulting Legislation

13. More Resulting Legislation…
 Federal Register Act was amended in 1937 to
create the Code of Federal Regulations (Ch. 369,
50 Stat. 304 (1937)).
 Provides a method of accessing federal
regulations currently in force by subject.
 Bears the same relationship to the Federal
Register as the United States Code bears to the
Statutes at Large.

14. And More Resulting Legislation..
 Administrative Procedure Act passed in
1946 (Ch. 324, 60 Stat. 237 (1946))
 Agency required to publish notice of
proposed rulemaking and to provide the
public with an opportunity to comment.

15.  Freedom of Information Act – agencies must publish
organizational descriptions, rules of procedure, and
policy statements (Pub. L. No. 84-487, 80 Stat. 237
(1966))
 Government in the Sunshine Act – agencies must publish
notices of most meetings (Pub. L. No. 94-409, 90 Stat.
1241 (1976))
 Regulatory Flexibility Act – twice a year the agency is
required to publish an agenda of proposed actions on
rules and an approximate schedule (Pub. L. No. 96-354,
94 Stat. 1164 (1980))
Just when you thought that was it…

16. FEDERAL
REGISTER
RULES AND REGULATIONS
PROPOSED RULES
NOTICES (now includes Sunshine
Act notices)
PRESIDENTIAL DOCUMENTS

17. Federal Register
 Published every business day.
 Libraries usually get it about a week or ten days
after it is published.
 Contents are required to be judicially noticed.
 Index issued monthly, cumulates throughout the
year.
 Chronological; whole year paged consecutively

18. Codification of
administrative
regulations
currently in effect
CODE OF FEDERALCODE OF FEDERAL
REGULATIONS (C.F.R.)REGULATIONS (C.F.R.)

19. Code of Federal Regulations
 Access by citation, subject, or from Parallel Tables
 Titles similar, but not identical to the U.S.C. titles.
 Updated annually, but only a quarter at a time.
 Official and Unofficial indexes available – unofficial
index is much easier to use.
 Every regulation includes citation to enabling act
(AUTHORITY) and to all previous iterations of rule
(SOURCE).

20. C.F.R. ANNUAL
REVISIONS
TITLES 1-16TITLES 1-16 JANUARY 1JANUARY 1
TITLES 17-27TITLES 17-27 APRIL 1APRIL 1
TITLES 28-41TITLES 28-41 JULY 1JULY 1
TITLES 42-50TITLES 42-50 OCTOBEROCTOBER 1

21. Regulations – 2 Steps
1. Locate Regulations
Statutory Regulations – Citations to CFR
CFR Index and Finding Aids; Annual
2. Update Regulations
LSA – List of CFR Sections Affected (by Federal
Registers)
-Monthly; cumulative year-to-date
Update from newest LSA to present
-Newest Register – “CFR Parts Affected Table”
Call Agency

22. Shepard’s CFR Citations
 CFR itself is not annotated
 Shepardize rule
-Did a federal court rule on the regulation’s
validity?
-Locate court cases, law review articles and
ALR annotations citing the regulation
 Also has Presidential Proclamations and
Executive Orders

23. Electronic Access to
Regulations
 Lexis
 Westlaw
 Loislaw
 Internet: www.gpoaccess.gov
 Individual agency websites
 Updating: check dates!

24. Other Administrative
Resources
 States have administrative compilations similar
to the Federal Register and C.F.R.
 Administrative decisions are published
separately
 Most attorneys use unofficial versions of
administrative decisions because they are
easier to use
 Looseleaf services

25. Presidential Documents
 Constitutional and/or statutory authority
 Proclamations and Executive Orders
-Fed. Reg., Title 3 CFR, USCCAN, USCS Adv.
 Reorganization Plans
 Nominations
 Other Documents – Administrative orders,
executive agreements
 Weekly Compilation of Presidential Documents

26. Agency Decisions
 Quasi-Judicial functions
 Not standardized as rule-making is
 No Fed. Reg. or complete publishing system
 Official publications – slow, poor indexing
 Unofficial commercial publications of decisions
-looseleaf sets
 USCS has administrative decisions, as well as
rules, in its annotations

27. PRESIDENTIAL
DOCUMENTS

28. Massachusetts Admin. Law
 C.M.R. – Code of Mass. Regulations
 Mass. Register – bi-weekly updates Sec’y
of State www.sec.state.ma.us
 Mass. Trial Court Libraries site
www.lawlib.state.ma.us
 Social Law Lib’y paid subscriptions
www.socialaw.com
 NUSL Library site:
www.slaw.neu.edu/library/statema.htm
 Westlaw/Lexis