2. What does Administrative Law Deal With?
The formation, staffing, and funding of agencies.
Rulemaking (legislation) by agencies
Adjudications (trials) by agencies
Judicial review of agency action
Access to private information by agencies
Public access to agency information
Agency liability
3. Law Practice Reasons to Study
Administrative Law
Some is on the bar
Procedural due process and standing
The majority of lawyers do admistrative practice
some or most of the time.
Malpractice trap if you do not recognize adlaw
problems.
Fundamentally different approach than non-
agency courses.
4. Administrative Law Practice
Work for agencies.
Counsel clients how to operate within regulations.
Represent clients before agencies.
Litigate against agencies.
Represent clients in the development of agency
policy and regulations.
5. Areas of Administrative Law Practice
Tax
Environmental law
Securities law
Land use law
Health law
Energy law
Etc.
6. The Approach in this Course
This is not a first year course.
You will be expected to learn basic material on
your own (reading) outside of class.
You do not have to dig this out of cases, you
will have the book and notes (modules) to use.
Class time and discussion will be used to look
more deeply into the legal and policy issues in
administrative law.
I reserve the right to use participation points.
7. Why Do We Talk about Policy in Adlaw?
90% of private administrative law practice is working
with the agency for your client, not suing the agency.
90% of the time of agency lawyers is spent outside of
litigation.
Internal adjudications
Rulemaking
Problem solving with regulated parties.
You have to know the law, but you also have to know
how the agency functions.
8. Course Materials
The E&E book
Basic intro to administrative law – read it all
Full text cases in specific regulatory areas.
Learn to sort out issues in real cases
Learn to deal with the underlying facts
Regulatory materials
What do regulatory documents look like?
How do you read long documents?
Class discussion of issues that come up in the news.
9. Study and Discussion Aids
PowerPoint slides
These will be used at times in the course to present
background material on regulatory problems or special legal
areas.
They will also be used in some class to present discussion
questions.
They are not meant to be a summary of the course.
Modules
These are meant to be basic class notes to help you learn the
basics so we can have a higher level discussion in class.
They include evaluation questions to help you prepare for
the exam.
10. Learning Objectives for the Course
Administrative law literacy
Key cases
Recognize administrative law issues
How to deal with agencies
How agencies are and must be political
Cost-benefit analysis
Unintended consequences of regulatory decisions
A hard look at a few regulatory problems.
12. 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.
13. The Colonial Period
Colonial governments had agencies that were
either controlled by the king or by local
governments
Boards of health
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
14. Articles of Confederation
After independence, but before the Constitution,
the states were independent sovereigns
All agency action was state and local
The Articles did not provide for a central
government with binding powers
This did not work very well and almost cost us
the revolutionary war
15. 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 delegation was flexible, not enumerated
16. 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
17. Administrative Law in the States until the
New Deal
The states and cities had extensive regulatory laws and
agencies
While some see this period as one of limited
regulation, that is only true at the federal level
Most administrative law (most government) is still
carried out at the state level
Most federal regulatory programs are shared
federalism
Environmental law
Medicaid
18. The Great Depression
While there was federal regulation before the
1930s, the modern regulatory state began with the
Great Depression.
Federal agencies were formed to provide jobs
WPA
Agencies were formed or strengthened to regulate
business
FDIC, SEC
This lead to the constitutional fight over the
delegation doctrine.
19. World War II
The role of the federal government was greatly
expanded to fight World War II
Took over private business for the war effort.
Intruded in private life (rationing, etc.) for the
war effort.
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
20. Post World War II
Modern administrative law starts with the
Administrative Procedure Act in 1946.
Modern Supreme Court admistrative law
jurisprudence starts in the 1960s as the
regulations increase and Court starts to work out
the proper role of agencies.
22. 22
Separation of Powers – Federal
Government
The US Governments is divided Into three branches:
Legislative Branch
Executive Branch
Judicial Branch
The executive branch is headed by the president. The
president and the vice president are the only nationwide
office holders.
Each branch has unique powers.
Each branch was intended to keep the others in check.
The founders did not anticipate political parties.
23. Separation of Powers – State Government
State governments are also divided Into three
branches:
Legislative Branch
Executive Branch
Judicial Branch
The executive branch in state governments is
divided among several statewide office holders
with powers independent of the governor.
23
24. Hierarchy of Laws
The United States Constitution is the ultimate
source of law, preemption conflicting state and
federal laws.
In theory, treaties prevail over conflicting state
and federal laws, but congress is reluctant to
ratify treaties that preempt domestic law.
Federal law preempts conflicting state laws.
24
25. 25
Agencies are Established by the
Legislature
The agency enabling statute establishes the
agency's:
Powers and Duties
Organization
Funding
Standards for Judicial Review of the Agency's
Actions
Some state agencies are established by the state
constitution or constitutional amendments.
26. 26
Agencies only have the Power Given by
the Legislature
General Grant of Power
Public health laws
Specific Grants of Power
Narrowly drawn statutes such as the Americans
with Dishabilles Act.
Contingent Grants of Power.
Laws that are triggered by a declaration of a state
of emergency.
The Legislature cannot grant the agency more power
than the legislature itself can exercise
27. 27
Executive Control in the Federal
Government
All enforcement agencies are in the Executive
branch.
Enforcement can include orders to comply with
the law, fines, and criminal prosecution.
Congress can control agencies that only do
studies and investigations, such as the
Congressional Budget Office or the Library of
Congress.
28. 28
Executive Control in the States
States have several elected executives that
control agencies, not a single head like the
president.
The governor controls most agencies.
The attorney general controls the legal office.
Other state offices, like state auditor, also have
elected heads.
Some states even allow legislative agencies with
enforcement powers
29. 29
Legislative Oversight of Agency
Appointments
The US Constitution provides that the senate
must approve the appointment of officers of the
United States.
The heads of most executive branch agencies,
and some of their subordinates, are officers of the
United States and thus must be approved by the
Senate.
The Senate can use this to threaten agencies
when the president is from another party.
30. 30
Removal of Agency Heads
Most agency directors in the state and federal system
serve at the pleasure of the executive
This is a major source of executive control over
agencies
Some agencies, called independent agencies, are run by
boards or commissions.
Members have fixed, staggered terms and can only be
removed for bad conduct
This limits executive control and gives the agency
some independence from political pressure
31. 31
Non-Agencies and Administrative Law
The President is not an agency.
The military is a quasi-agency
An agency for many organizational and procurement
purposes
Not an agency for military actions
DOJ, police departments, and courts
Agencies for basic governance
Not agencies for their substantive criminal law work.
32. 32
Agencies are the Vehicle for Carrying out
Political Policy
Enforcement policy
When does a business get a second chance and when
do they get closed for violating regulations?
When do you use quarantine and isolation?
Fiscal policy
Which diseases do you investigate when you have
limited staff?
What programs are cut when the budget is cut?
Changes of government can profoundly change agencies
33. 33
Changing Agency Policy
Executive branch control
Replace the agency director
Use Executive Orders to direct agency policy
Legislature
Change the enabling law
Increase or eliminate the funding for agency functions
Citizens
Petition the agency to change regulations
Participate in pubic hearings
Lobby the executive and legislature
Elect different politicians in the executive and legislature
35. 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.
36. 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.
Proposed rules are published in the Federal Register
Final rules are codified in the Code of Federal Regulations.
Rulemaking is very important because most statutes passed
by Congress do not contain sufficient detail to be enforced
without additional agency rulemaking.
The terms rule and regulation are interchangeable.
37. 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
38. The Collection of Data by Agencies
What types of data does the government collect?
IRS? - NSA?- HHS?
Reporting duties
Administrative subpoenas
Administrative searches
Not based on probable cause
No exclusionary rule
Little expectation of privacy unless provided for by a
federal law or common law privilege.
39. Access to Agency Information
Freedom of Information Act
What is available?
When can the government withhold
information?
What is the standard for judicial review?
The Privacy Act
Open Meeting Act
40. 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 individual’s constitutional
rights?
Biggest difference from private and criminal law:
The courts generally defer to the agency.
41. 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.