Introduction to Administrative Law For International LL.M. Students

1. Introduction to Administrative LawFor International LL.M. Students Edward P. Richards

2. Administrative Law • Administrative law governs the organization and functioning of government agencies, and how their actions are reviewed by the courts.  • Administrative law is the heart of the modern state, and keeps life from being nasty, brutish, and short.

3. Cross-Cultural View • The US administrative law system has many parallels with non-Louisiana civil law systems • An emphasis on codes, rather than case precedent • Inquisitorial rather than adversarial adjudications • The combination of functions in a single agency, rather than in different branches of government

4. Administrative Law Background • Non-US law schools put a much higher priority on administrative law teaching so foreign law grads are already more familiar with administrative law than are US law grads • I will focus on the structure of the US system, but assume you understand the basics of agency functions.

5. 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.

6. 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.

7. 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. • The President can abrogate a treaty without senate approval or judicial review. • Federal law preempts conflicting state laws.

8. Agencies are the Building Blocks of Government • The agency enabling statute establishes the agency's: • Powers and Duties • Organization • Funding • Standards for Judicial Review of the Agency's Actions • Some state agencies are established by the state constitution or constitutional amendments.

9. 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

10. 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.

11. 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

12. The Appointments Clause • The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.... • ARTICLE II, SECTION 2, CLAUSE 2

13. Legislative Oversight of Agency Appointments • The heads of 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 block appointments and cripple agencies when the president is from another party.

14. Removal of Agency Heads • Most agency heads 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

15. Impeachment

16. Article 1, Section 2, Clause 5 • The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

17. Article 1, Section 3, Clauses 6 and 7 • The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present. • Judgement in Cases of Impreachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

18. Article 2, Section 4 • The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

19. Article 3, Section 1 • . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour. . . .

20. 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.

21. 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.

22. Agency Discretion Allows 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

23. 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

24. History of Administrative Law in the United States

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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

33. 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 Trump administration is destroying the norms of administrative law which give great discretion to the president.

34. 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.

35. Carrying Out Agency Policy

36. Administrative Procedure Act (APA) • The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rulemaking, adjudications, and how citizens can petition the agencies. • APAs were first adopted post-WWII • The APA only applies if the legislature has not made special rules for a given agency.

37. Administrative Rules • The Legislature can delegate the power to make rules to the agency • Some agencies do not have rulemaking authority • Rules cannot exceed the authority in the agency's enabling legislation or the Constitution • Properly promulgated rules have the same effect as statutes

38. Why Make Rules? • Legislatures do not have the expertise or the time to legislate in technical areas • National standards can be adopted through agency rules, harmonizing practice across jurisdictions • National building codes • CDC guidelines on food sanitation • Recommendations of the Advisory Committee on Immunization Practices • Rules give the public and regulated parties guidance • Rules limit the issues that can be reviewed by the courts

39. Public Participation in Rulemaking • Proposed rules must be published for public comment. • The agency must take written comments. • Some states require public hearings if requested by enough people. • Federal agencies sometimes use public hearings on important policy issues. • The agency must review and respond to the comments.

40. When Agencies Make Individualized Decisions - Adjudications • How is an adjudication different from a rule? • Rules apply to everyone in the affected class. • Adjudications decide questions in individual cases and only bind those parties. • Parties to an adjudication are entitled to be heard. • Adjudications may include oral hearings. • Some adjudications are done on written documents only.

41. Administrative Law Judge (ALJ) • A fact-finder in the administrative law system. • ALJs usually act as inquisitorial judges and try to assure that the case is fairly presented and decided. • ALJ's do not make final decisions but make recommended rulings to the agency • Some states give more power to ALJs in the name of fairness. • Louisiana gives all the power to the ALJs.

42. Article III Judges Protections Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline Why do we have these protections? How are state judges different? ALJs Civil service protections Can be fired Can have salary lowered, but hard to do this Can set work standards and discipline How are the pressures different than those on an Article III judge? What about contract ALJs that some states use? ALJs versus Article III Judges

43. How are the expectation for ALJs Different from Article III Judges? • What does the judge know? • Administrative law judges (ALJs) may use their own knowledge of the subject. • Judges can be disqualified if they know about the subject. • Conflict of Interests • ALJs often know the parties and may have worked on the case. • Judges in courts cannot know the case or the parties.

44. Agency ALJs v. Central Panel ALJs • All federal and many state ALJs are part of the agency • Decide the same type of cases all the time • May be hired for their expertise • Will develop expertise • Central Panels • Not part of the agency • No expertise • Trades off the value of expertise for "fairness"

45. How are Rulings by ALJs different from Judicial Opinions? (Not Louisiana) • ALJs are primarily fact finders. • ALJs often follow Attorney General Opinions. • Judges decide legal questions on their own. • ALJ decisions are recommendations to the agency and may be changed by the agency. • An adjudication is not binding in other cases. • Court decisions can be binding on lower courts.

46. Agency Enforcement Tools

47. Permits and Licenses • You have to show you have met the standards set by law or regulation before you get the license or permit. • Standards must be clear. • Must treat all applicants equally. • Conditioned on accepting enforcement standards • You agree to be bound by the administrative rules. • You must allow inspections during business hours. • Licenses and permits can be revoked without a court order

48. Administrative Searches • License and permit holders may be inspected without a warrant. • Other inspections may require an administrative warrant. • Requirements for an administrative warrant. • No probable cause. • Must show the reason for the search and the locations • Administrative searches cannot be used when a criminal warrant is necessary. • Special rules for national security law

49. Inspections are Adjudications • The inspector determines the facts through the inspection. • The defendant may present its case explaining the problem during the inspection. • The inspector must provide a written record. • Local government often allows appeals to the city council. • The courts will defer to the inspector's findings if the case is appealed to the courts.

50. Administrative Orders • The first step in enforcement is to issue an order explaining the violation and how to correct it • Most persons comply with the order • If the person does not comply, the order proves that the person was on notice of the problem • In some cases there may also be a fine for not complying with the order