Introduction to Administrative Law

1. Introduction to Administrative Law Spring 2014

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. 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.

7. 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.

8. Study and Discussion Aids • PowerPoint slides • Study questions to aid class discussion, not a canned lecture on the course nor a summary of the material. • They are study aids, not substitutes for reading. • Exam study questions • The exam will be based on these questions • Simple, clear, straightforward • There may also be quizzes • Class discussion • Elucidating the text. • Better understanding of agency function and how agencies execute policy. • I reserve the right to use participation points.

9. History of Administrative Law

10. 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.

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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.

17. World War II • The role of the federal government was greatly expanded to fight World War II • 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 • Modern Supreme Court admistrative law jurisprudence starts in the 1960s

18. Organization of the Government

19. Legislative Branch • Is there a head of Congress? • How much control do the heads exercise? • What Does Congress Do?

20. Judicial Branch • Is there a head of the courts? • How much control does the head exercise? • What do the Courts do?

21. Executive Branch • Who heads the executive branch? • What is the domestic role of the executive branch? • How is this different in Louisiana?

22. The Creation of Agencies • Since the Constitution is mostly silent on agencies, federal agency powers are rooted in statutes • Congress delegates power to the agency and provides the money to run the agency. • Congress can abolish agencies, change their powers, and fund or defund them, subject only to presidential veto power. • Congress cut off money to move Guantanamo prisoners to US prisons • Congress ultimately holds the power in government • Congress has political trouble using the power

23. Separation of Powers • Enforcement agencies must be in the executive branch • Agencies that do not do enforcement may be in any branch • Executive branch agencies are under the control of the President through the appointments process, as laid out in the Constitution • The president has more attenuated control of independent agencies

24. Agency Practice

25. 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.

26. 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.

27. 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

28. 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.

29. 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

30. 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.

31. 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.