Administrative Law Outline

Administrative Law

I. Why agencies? Why not stick to traditional notions of law (Congress makes law, judiciary interprets, executive enforces)?

*Book hypo—Migrant worker example: no water, bathroom facilities. Causes public health issues, etc.

-Other than agencies, how do you create a system to remedy this problem?

A. Legislature could create a statute—

PROBLEMS:

1) Based upon politics. The farmworkers don’t vote. [counter—it still effects the rest of the electorate by spreading diseases] *Special interest politics—to what extent do you trust legislature to properly take care of the problem?
2) Competency—is Congress best suited to making these decisions? Does Congress have requisite expertise?
-Congress does have staff…but there may be a tension between politics and expertise.
3) If the statute is incorrect, it will be difficult to correct the statute. One shot—and often, if the issue is detailed, it will require correction.
4) Efficient use of resources
5) How to monitor? Legislative Prescription—
a) If private, subject to the same problems as common law
b) If public, still reactive in nature

B. Courts could regulate—make this a tort–

PROBLEMS:

1) Jurisdictional problems—limited to state courts; reactive in nature
2) Expertise of courts—judiciary is not best equipped to deal with sweeping societal issues. Hard for judges to get the kind of information available to legislatures.
3) Private causes of action—letting the workers sue for unsanitary conditions:
a) Problems with incentives
b) sophistication of workers
c) civil suits are reactive in nature
d) cost of suit/access to attorneys/cost of state resources

C. What are the Criteria for Evaluating competing systems?

1) Competence to set standards
a) Expertise
b) Accountability for value judgment
c) Processes for Deliberation
2) Monitoring and Enforcement
a) Incentives and resources (all kinds of problems for private parties)
b) Proof of violation and causation
3) Jurisdictional Limits—if system, at point 1, causes problems at point 2, want system that corrects problems at all points

D. So, Create an Administrative Agency- Seidenfeld likes agencies

1) Can develop expertise
2) Accountability—somewhat politically accountable (less than legislature, more than courts).
-Can the agency legitimately resort to pure value judgments? Depends on how closely constrained by politics
3) Generally flexible and proactive—need not define precise rules before implementing, but can adjust to problems as they occur.
4) Overcome coordination and jurisdictional problems—can define and implement public interest as defined by deliberative process.

PROBLEMS:

1) Potential lack of respect for legal rights
2) Interest group influence & capture (good or bad?)—S thinks agencies are less beholden to interest groups than legislature.
3) Runaway agencies and imposition of idiosyncratic values
4) Inefficiency and sloth—problem of entrenched bureaucracy.

ConclusionàAgency structure should:

1) Encourage, and respect, the participation of stakeholders
2) Ensure democratic accountability
3) Create incentives for agency to pursue public, rather than idiosyncratic, interests

E. What is Administrative Law?

1. In a sense, it’s procedure; in other senses, it’s more substantive (e.g. standard of review/agency accounting for it’s actions—substance or procedure??)
2. Admin law is any aspect of the government that is not the legislature, president, or court (not in the whitehouse or capitol), attorney general is the head of the department of justice – job is not to just do what the president tells you rather it is to run the agency.
3. So, what is Administrative Law? Seidenfeld: the interaction of the agency with other entities/institutions. [see slide on p.2 of materials]. Interaction with:
a. President (president advises agencies & vice versa; additionally, the president appoints (& fires) some agency heads)
b. Judiciary [Article 3 courts] (all different ways)
c. Congress (one way—Congress to agencyàenables agency; gives discretion; provides procedure); What kind of oversight does Congress have
d. Press (one way—agency to press) – freedom of information act
e. Regulated entities (2 ways—agencies tell entities what to do; entities give agencies information)
f. Regulatory beneficiaries (Mostly one way—beneficiaries give agencies information [exception—regulations which only create beneficiaries, e.g. welfare])

* If an entity/beneficiary sues an agency, there are hurdles one must clear (standing, ripeness, finality, exhausted administrative remedies)…however, this is another form of agency interaction.

4. Admin. Law DOES NOT cover internal agency action (this is public administration; Exception—how agency treats its internal review officers/ALJs)

F. Agency structure

1. Agency head (i.e. EPA Administrator)(“on top of the graph”)( this is an individual or a body and makes the decisions)
2. Program Offices (i.e. Air, Water, Hazardous Waste) – defined by the substantive areas that the agency regulates
3. Enforcement (police force within agency) – this is for agencies that have responsibility for enforcing the rules – thus there