Introduction to Administrative Law

Introduction to Administrative Law Spring 2017

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

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.

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.

Areas of Administrative Law Practice • Tax • Environmental and climate change law • Securities law • Land use law • Health law • Energy law • Etc.

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 all of 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.

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. • In many of these cases the agency is making a policy decision under an ambiguous statute.

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.

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.

Learning Objectives for the Course • Develop administrative law literacy • Learn key cases and the APA • Learn to recognize administrative law issues • Learn to how to deal with agencies • Learn about decisionmaking under uncertainty • Cost-benefit analysis • Unintended consequences of regulatory decisions • Scientific uncertainty about outcomes • Take a hard look at a few regulatory examples.

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 • 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

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

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

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 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.

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, FAA • This lead to the constitutional fight over the delegation doctrine.

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

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.

The Modern Administrative State

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.

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.

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. • Unless a treaty has also been enacted into law, the president can abrogate it without congress. • Federal law preempts conflicting state laws.

Agencies are Established by the Legislature • The agency enabling statute establishes the agency's: • Powers and Duties • Organization • Funding – easiest to change • Standards for the judicial review of the agency's actions • Some state agencies are established by the state constitution or constitutional amendments.

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

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.

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

Legislative Oversight of Agency Appointments • The US Constitution provides that the presidents appoints and the senate approves 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 cripple agencies when the president is from another party.

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

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.

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

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

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/adlaw/index.htm • The APA is secondary to the statutes that establish an agency. • The APA only controls when the enabling act is silent.

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.

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 be as informal as inspecting a restaurant or processing a FAFSA form

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.

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

Judicial Review • 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.

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.

Introduction to Administrative Law