Overview of Administrative Law

1. Overview of Administrative Law

2. History of Administrative Law

3. 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.

4. The Colonial Period • Colonial governments had agencies that were either controlled by the king or by local governments • 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

5. Articles of Confederation • After independence, but before the Constitution, the states were independent sovereigns • The Articles did not provide for a central government with binding powers • All agency action was state and local • This did not work very well and almost cost us the revolutionary war

6. 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 federal delegation was flexible, not enumerated

7. 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

8. Administrative Law in the States • From the Constitutional period until the Great Depression, most government was state and local • While some see this period as one of limited regulation, that is only true at the federal level • The states and cities had extensive regulatory laws and agencies • Most administrative law (most government) is still carried out at the state level • Many regulatory system are shared federalism • Environmental law • Medicaid

9. The Federal Administrative Law System • While there was federal regulation before the 1930s, the modern regulatory state began with the Great Depression • 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 • Most major Supreme Court cases on adlaw date from the 1970s

10. Organization of Agencies

11. Branches of Government • Legislative Branch • Creates agencies and pays for government • Executive Branch • Enforces laws • Protects the national security • Judicial Branch • Determines the constitutionality of laws • Resolves conflicts between state and federal law

12. Separation of Powers • Enforcement agencies must be in the executive branch • Agencies that do not do enforcement may be in any branch • Most executive branch agencies are under the control of the President through the appointments process, as laid out in the Constitution • Independent agencies are under more limited control.

13. 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 • Congress has political trouble using the power

14. Independent Agencies • Congress created independent agencies to reduce the power of the president. • These are headed by boards whose members are appointed by the president • They serve fixed, staggered terms • They can only be removed for good cause • They are still in the executive branch • This limits the ability of a new president to affect the course of the agency, and prevents political pressure on sitting agency commissioners. • This is not in the constitution but has been accepted by the courts.

15. Agency Practice

16. 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.

17. 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

18. 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 • Rulemaking is very important because most statutes passed by Congress do not contain sufficient detail to be enforced without additional agency regulation. • The terms rule and regulation are interchangeable.

19. 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 individuals constitutional rights or commit a tort? • Biggest difference from private and criminal law: • The courts generally defer to the agency.

20. Administrative Law Practice • Counsel clients how to operate within regulations • Represent clients before agencies • Litigate against agencies • Represent clients in the development of agency policy and regulations

21. Areas of Agency Practice • Tax • Environmental law • Securities law • Land use law • Health law • Energy law • Etc.

22. 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.