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Chapter One

Chapter One. State and Federal Administrative Law, 2nd ed. 1998. Ripped from the Headlines. Who should sort out the power grid problems? What are the conflicting issues? What is the trade off between price and reliability? Who must pay?

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Chapter One

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  1. Chapter One State and Federal Administrative Law, 2nd ed. 1998

  2. Ripped from the Headlines • Who should sort out the power grid problems? • What are the conflicting issues? • What is the trade off between price and reliability? • Who must pay? • What is the role of the Federal Energy Regulatory Commission (FERC)? • What about the states? • What about deregulation?

  3. Virus that Makes Plants Freeze Resistant • Assume this would let you grow oranges in LA • Industry wants to test it • The citizens are scared that it will spread and no one will buy their crops • Jeremy Rifkin is going to picket so you will get national publicity • You really do not know the risks, but it might really be a good think because you cannot grow sugar much longer

  4. What does the Governor do? • What agency should be in charge? • What are the political issues you have to balance? • Who is going to sue you if you allow the tests? • Who is going to sue you if you do not allow the tests? • What is the worst threat?

  5. Introduction to Administrative Law

  6. The Two Core Agency Functions • Regulation • This is similar to law enforcement • Most agency enforcement is civil • Agencies can refer to the Department of Justice (DOJ) for criminal prosecutions • Beneficence • Social Security • Medicare, Medicaid • Other benefit programs are run by agencies

  7. Where do Agencies Come From? • Not in the Constitution • Formed when the Legislature passes a law that sets them up • Organic Act • Enabling Act • Agencies only have the Powers they are Granted • Every Branch of Government is an Agency • DOJ • Courts • Military

  8. Agency Powers • Rulemaking • Adjudication • Permits • Licenses • Inspections • Publicity

  9. Advantages of Agencies • Flexible • Can respond to new threats • Can change rules without involving the legislature • Non-Adversarial • Does not depend on prowess and resources of the private lawyers • Can balance societal needs as well as those of parties • Can use its own expertise

  10. Disadvantages of Agencies • Agency capture • Agency is controlled by interest groups or regulated parties • Hard to avoid if the regulated parties have all the expertise • Depends on the expertise of the agency personnel and directors • Many directors are political appointments with no expertise • Special Problem in Public Health and Health Care at the State Level

  11. What are the alternatives to agency regulation? • Criminal Law • Expensive because of Due Process Requirements • Demands Specific Prior Law (Homeland Security Notwithstanding) • Private Litigation • Impossible to predict what is correct behavior • Penalties out of line with harm

  12. How is Administrative law different from first year courses? • Not litigation based • Based on non-adversarial process • Not a common law system • More like a code system • Must learn to work with the agencies through time • Litigation is one shot • Agency practice is ongoing with both clients and regulators

  13. State and Federal Administrative - Key Differences • Different separation of powers issues • Multiple executives • AG and Governor • Other Independently Elected Agency Heads • Some unicameral legislatures • Many states do not defer as much to agency • LA really limits agency power

  14. Why is the New Deal Important in Administrative Law? • Beginning of Modern Agency Government • Prior to the New Deal, Few Federal Agencies • FCC - Antitrust • Most Regulation was done by States • Very Active in the 1800s • Reined in by the United States Supreme Court for Interfering with Interstate Commerce • Big Growth was During World War II

  15. Administrative Procedure Acts • Code of Procedure and Bill of Rights for Agency Actions • When was the Federal APA passed? • 1946, after 10 years of fighting • It was opposed by Republicans and Southern Democrats who opposed the New Deal • Provides uniform rules for agency practice

  16. Does the APA completely define the procedures for every agency? • Most agencies have specific procedures in their organic acts, and some are very different from the APA • The APA controls when the organic act is silent • States have their own versions of the APA • When you represent a client before an agency, you must know the state APA • Local government agencies are often exempt from the APA

  17. Public Information Laws • Freedom of Information Acts (FOIA) • The federal government and the states have law FOIA laws that allow access to information held by agencies • Anyone can get access and you do not need a reason • Exceptions to protect privacy and agency functions • Open Meetings Laws • There are federal and state laws that require public access to meetings • Failure to comply can make the agency action void in some cases

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