Introduction to Administrative Law

1. Introduction to Administrative Law Fall 2018

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. 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.

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

5. Reasons to Study Administrative Law • Some is on the Louisiana bar, hiding as conlaw • 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.

6. Class Materials and Philosophy • This is not a casebook course such as Constitutional law, where you extract nuggets of jurisprudence from massively edited cases. • You have a plain language text with problems to read to learn the basic concepts. It will be supplemented with notes to help you focus your reading. • We will read full text cases, briefs, agency documents, and articles for class discussion. • The objective is for you to learn the basics of administrative law practice and how to read administrative law materials. We will study the core areas of administrative law. There is not enough time in one course to comprehensively cover the subject. • I reserve the right to use class participation points.

7. Study and Discussion Aids • PowerPoint slides • These will be used to present background material on regulatory problems, special legal areas and class discussion questions. • They are not a summary of the course or Cliff’s Notes. • Study Guides • These take various forms. Some are guides to the cases, to focus you reading of the case. • Some contain additional class notes to help orient you so we can have a higher level discussion in class. • Each chapter has a study guide with learning objectives and evaluation questions to help you prepare for the class discussion and the eventual exam.

8. 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. • Agency adjudications • Rulemaking • Problem solving with regulated parties. • In many situations you are arguing policy because the statute or regulation is ambiguous.

9. Why Do We Talk about Politics in Adlaw? • Admistrative agencies are the vehicle for carrying out executive and legislative policy. • Elections change government by changing the direction of agencies. • High level agency personnel are appointed based on their political views because that is how we assert pollical control over agencies. • Except in the rare cases where Congress writes a specific and unambiguous statute, agency decisions always have a political component.

10. 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.

11. History of Administrative Law

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, under the Articles of Confederation, 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 Founders planned for a small federal government with limited powers for a country that would have a limited role in the world. • They saw the primary role of the federal government as referring fights among the states and national defense. • The Constitution established the framework for separation of powers and basic functions of the government, but is largely silent on the law of agencies because the day to day government was run by states and cities.

17. Administrative Law in the States until the Great Depression • The states and cities had extensive regulatory laws and agencies from the colonial period to the 1930s, when the feds began to have a larger role. • While some see the this period as one of limited regulation, that is only true at the federal level. • The states were aggressive in some areas of regulation and some of these were very intrusive. • Most administrative law (most government) is still carried out at the state level.

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 to prevent another crash and for public safety. • FDIC, SEC, FAA • This lead to the constitutional fight over the nondelegation doctrine – the right of congress to give its powers to agencies under the president.

19. The Impact of the Founder’s Limited Conception of the Federal Government • The constitutional support for agencies is thin. • The nondelegation doctrine cases, which you read in Constitutional Law, (Schechter Poultry Corp, Panama Refining, etc.) represent the United States Supreme Court resisting the power of the federal government by restricting the power of agencies. • The court allowed agency power after these cases and has been pragmatic (mostly) since then.

20. 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

21. 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. • This is still happening, as the court reexamines basic administrative law doctrine. • The Lucia case from last term is roiling the adjudication world.

22. Current Controversies over Agency Power • Since the government acts through agencies, small government advocates focus on constitutional attacks on agencies. • If the Court abandons its pragmatic approach to administrative law, it could read the constitution to dramatically narrow agency power. • This is at the heart of several cases before the Court.

23. The Modern Administrative State

24. 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.

25. 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.

26. Hierarchy of Laws • The United States Constitution is the ultimate source of law, preempting 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 statutes, the president can abrogate it without congressional approval. • Most agreements, such as the Paris Climate Accord are executive agreements, not ratified by Congress. • Federal law preempts conflicting state laws, subject to constitutional protections of state powers.

27. 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.

28. 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 Disabilities 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. • The president has national security powers directly from the constitution, subject to funds for implementation from Congress.

29. 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. • Independent agencies – those with protections on the removal of directors – are still in the executive branch. • Agencies that do not do enforcement can be controlled by Congress or the Courts.

30. 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

31. 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 hold up the approval of officers to cripple agencies when the president is from another party.

32. 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

33. 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. • Prisons are agencies.

34. 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? • Who do you get to shoot? • 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. • Never before to the extent of the Trump administration.

35. 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

36. Agency Practice

37. 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.

38. 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. • The Courts have made rulemaking a slow, deliberate process that puts the brakes on quick agency policy changes.

39. 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

40. 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. • The Carpenter case on cell phone location maybe an indication that the court will broaden warrant requirements.

41. 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 • Can the public get personal information about you? • Open Meeting Act

42. 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.

43. Suing Agencies over Regulatory Actions • Learn how constitutional standing applies to suing agencies. • Learn about exhaustion of remedies • Learn about how the standards for judicial review of agency decisionmaking differ from private and criminal litigation • Learn about mandamus and injunctions as remedies against agencies.

44. Suing Agencies for Torts • Learn the procedure and limits on the government for tort damages caused by agencies. • Sovereign immunity • Tort claims acts and discretionary authority • Bivens and 42 USC 1983 • Statutory immunity such as the Flood Control Act of 1928.