Administrative Law Outline
Professor Craig Oren
Fall 2015
Asimow, Levin: State and Administrative Law, Fourth Edition
Chapter 1: Introduction
§1.1 Administrative Agencies and Administrative Law
· Administrative Agencies: units of government other than the legislature or other courts
o Regulatory: enforce a mandatory scheme of prohibitions or obligations
· Powers are delegated by statutes
· Administrative Law: legal principles common to all administrative agencies
· Violators can be injunctioned, fined, or throwin in jail
§1.4 Administrative Procedure Acts (APAs)
· Principle sources of administrative law are federal and state constitutions, statutes, and judge-made common law.
· General: apply to most agencies
· Comprehensive: deal with the main problems—rulemaking, adjudication, and judicial review
§1.5 A Snapshot of the Administrative Process
· Enforcing Statutes
o Research and Publicity
§ Identify problems and solutions
§ Publicize findings
o Rulemaking
§ Strike a compromise between proponents and opponents
§ APAs require agencies to notify the public, seek its comments, and explain their regulations
§ Notice-and-Comment
o Licensing
§ Authorizes an individual or entity to engage in a specified activity
§ Establish rules for qualifications; specify what licensees may and may not do, and sets forth the sanctions for violating the rules
§ Permits are a form of license: a permit may be required to take certain steps before proceeding with a planned course of action.
· The agency must take affirmative steps to stop the action otherwise the party may proceed.
o Investigation and Law Enforcement
§ Requires regulated parties to file routine reports and it must be prepared to receive complaints from the public
§ Agencies function like a police department and a prosecutor
o Adjudication
§ Particular Applicability: affects legal rights or duties of a specified person or persons
§ General Applicability: affects legal rights or duties of a class of persons
§ The agency would operate like a court
§ State and Federal APAs prescribe the procedures that agencies must follow when engaging in adjudication
o Ratemaking:
§ Rates can only be set after detailed economic information is collected and analyzed and a fair rate of return is determined
o Judicial Review:
§ Courts review final agency action for errors of law and for reasonableness in finding facts or exercising discretion
§ Dividing power between agencies and reviewing courts is a major subject
o Freedom of Information
§ Freedom of Information Acts require government agencies to publish their rules and adjudicatory decisions
o Legislative and Executive Review
§ Heads of independent agencies can only be removed for good cause
§1.6 Agency Legitimacy and Administrative Law
· The administrative process should be lawful, fair, and produce accurate results at an acceptable cost
· Legitimacy: the exercise of power is recognized by regulated parties and the community at large as politically acceptable
· Theories to legitimate agency lack comprehensively, so scholars turn to procedural regularity and checks and balances:
o Procedural Regularity: agency rulemaking is legitimate because agencies must employ APA notice and comment procedure, which guarantees a measure of direct democratic participation
o Checks and Balances: agency power is subject to a variety of important controls that help to ensure both legality and political responsiveness.
o Fire Alarm Theory: once alerted to the problems, legislative or executive assistance is sought to bring the agency back to the correct path.
· Give the power to agencies because courts might not have the expertise to handle the issues. Court is neither time nor cost effective.
o Give the agency the power to make rules about who can do what under what standards and procedures
o The procedure to follow must be in compliance and not to exceed the jurisdiction of the legislature.
o To insure that the rules are being followed people with a lot of knowledge, the agency staff, should carry out investigations.
· Ensuring agency legitimacy:
o Have procedures that give the outside world a fair chance to participate
o Give the courts or political branches opportunities to check what the agency is doing
§ There is need for review. Courts should probably overturn an agency if it's arbitrary and capricious or unreasonable. Courts defer to the facts that were previously found. There shouldn't be too much judicial review so the agencies can still carry out the legislature.
· Agencies should explain their actions for public review and understanding.
· Legislatures can influence what agencies do by creating statutes for agencies to follow.
· If Congress doesn't like what agencies are about to
rule because it gives the agency unprecedented power, and that wasn't the intent of Congress and it would be unconstitutional. Congress would have to be explicit in their meaning of enacting something broad.
Whitman v. American Trucking Ass'ns, Inc. (440)
The EPA revised ozone air quality standards. The issue was whether the intelligible principle standard was met. Congress must give an intelligible principle. The EPA setting standards fits within the scope of discretion.
o Intelligible principle has only lacked in two instances: where there is no guidance for discretion, and where it confers authority to regulate entire economy
Chapter 2: The Constitutional Right to a Hearing
§2.1 Hearings and Welfare Termination: Due Process and Mass Justice
Goldberg v. Kelly (17)
When one has a statutory entitlement, the entitlement guarantees that one receives some kind of due process as far as the government taking it away. A hearing might be constitutionally necessary when facts are against one person, but not necessary when dealing with legislation. The government is trying to stop continued payments. There is a property interest in the next payment and there is a right to receive a process before the right to a future payment is taken away. A hearing must be held before benefits are taken away.
o What procedure is necessitated by the due process clause?
§ Compare the recipient's interest in avoiding a loss with the government's interest in summary adjudication.
o The hearing doesn't have to be formal; but does require:
§ The hearing must be at a meaningful time and in a meaningful manner (21)
§ Adequate notice detailing the reasons for a proposed termination (21)
§ Having an oral hearing which have heavier weight of veracity—cannot mold arguments
· Gain a right to confront opposing witnesses
· Right to cross examine
· Right to bring council
· Right to impartial decision maker
· Right to decision solely on the hearing
