ADMINISTRATIVE LAW
BROWN
SPRING 2013
I. Introduction to Administrative Law:
a. Formalism v. Realism
i. Formalism
1. Approach to the law that is a very clear form with defined lines for what is and what is not ok .
a. Rule v. standards
ii. Realism
1. Look at the objective/consequences of the law.
a. Standards v. rules
b. Overview of Administrative Law:
i. Recent phenomenon (last 100 years)
ii. Prior to 3/1936, economic policy was mostly Lasse Faire (market regulates market).
iii. Then Great Depression/New Deal:
1. Shift in political policy from hands off to increased involvement by government in the economy.
2. Once agencies were created, they expanded.
3. The expansion of agencies prompted the Administrative Procedures Act (APA).
a. Purposes:
i. Provide public review, participation in rulemaking process.
ii. Require agencies to keep public informed of their operation, procedures, and rules.
iii. ONE MORE (see slide from 1/15 class).
iv. Another Boom in 1970s in administrative agencies.
1. More emphasis on government in managing social welfare.
v. Deregulation push in the 1980s
1. There were attempts to modify the APA.
c. Agencies:
i. An agency is defined by the APA:
1. Each authority of the Government of the United States
2. Does NOT include Congress or the Supreme Court (in terms of APA).
3. VAGUE about if it includes the President and Vice-President.
ii. Where they come from:
1. Necessary and Proper Clause:
a. Congress shall have the power to…; and to make laws which are necessary and proper for carrying into execution the foregoing powers.
iii. Original Agencies:
1. Departments (referenced in the Constitution).
iv. Agencies include:
1. Departments
a. Sub Agencies in the Departments (or managed by a Department)
2. Independent agencies.
3. Government Chartered Corporations.
a. Think:
i. Amtrak
ii. Government contractor
b. Not subject to the APA (only subject to the Constitution).
v. What Agencies do:
1. Generally:
a. Create regulations
b. Enforce the law
c. Adjudicate adherence to regulations.
2. Regulate:
a. Manage “spillover” costs/externalities
b. Espouse special values we hold dear.
c. Correct Market failures
d. Public good/correct unequal bargaining power.
3. Additionally:
a. Administer entitlements.
b. Collect information/taxes
c. Issue Passports
d. Issue permits
e. Administer National Lands
vi. Agency Regulations:
1. Have same force and effect as laws passed by legislature.
d. Administrative law Process (Admin Law Cheat Sheet)
i. Congress enacts a statute to solve a problem (assume it is constitutional)
ii. Agency interprets the statute and issues rules.
iii. Private parties comply (or not) and agency adjudicates compliance.
iv. Judicial Review of Agency Action.
1. Administrative Procedures Act (APA)
2. Constitution
3. Agency Charter
II. Ethics and the Agency Lawyer:
a. There are other goals besides zealous advocacy (when a agency attorney).
i. Can include public considerations.
b. A lawyer for an administrative agency needs to determine who the client is:
i. Government
ii. President
iii. Department
iv. Public
v. Agency
1. Office within an agency.
c. There are different expectations of government v. private attorneys.
d. Ethical rules governing the interest of lawyers govern depending on who the lawyer works for.
III. Rulemaking
a. Overview:
i. What a rule is:
1. Something defining general application with future effect.
ii. Ways of Rulemaking:
1. Informal Rulemaking
a. Using the §553 APA procedure
b. Timeline:
i. Rule initiation.
ii. Notice of Proposed Rule Making (NPRM)
iii. Comment Period
iv. Adoption (publish final rule)
v. Application (parties have to comply)
vi. Judicial Review (court can review)
2. Formal Rulemaking
a. Imposes an adjudicatory procedure.
3. Hybrid Rulemaking
a. Agency can have specific rules.
iii. Barriers to Judicial Review:
1. Standing
2. APA
3. Exemptions
4. Finality
5. Exhaustion of Administrative Remedies.
b. Rulemaking Initiation:
i. Three formats:
1. Top-Down Approach:
a. Congress:
i. Can adopt an enabling act
ii. Can proscribe that agency adopt certain rules/certain kinds of rules.
iii. Can control the agency budget
b. President
i. Can direct how the agency functions
2. Bottom-up:
a. Employee recommendations
i. Memo-writing from the bottom-up about what may need to be changed.
b. Enforcement Actions.
c. Informal petition/lobbying
i. Try to find someone with access (with relationship with the right person).
3. Formal Petition:
a. APA § 553(e) –
i. Gives people (an “interested person”) the right to petition for a rule to be issued, amended, or repealed.
b. APA § 555(e) –
i. Agency must respond to a formal petition.
1. They must have a formal letter of denial if they are denied.
c. If the agency “ignores” the petition:
i. APA § 706 – generally – gives the courts the ability to review.
ii. Judicial Review:
1. Two standards:
a. Deference
b. De Novo
iii. Agency Delay:
1. Possible reasons:
a. Agency priority of matters
b. Pressure to bench the matter.
2. Remedies:
a. APA § 706(1)
i. Court can compel agency action if the agency sits around and does nothing.
b. APA § 511(13)
deral Register is “constructive notice” and legally sufficient.
i. This is true EVEN IF the affected or interested party is unaware of it being published in the Federal Register.
c. NOTICE SHALL INCLUDE:
i. Two basic parts:
1. Preamble
2. Text of Proposed Rule
ii. Statement of time, place, and nature of public rule making proceedings;
iii. Reference to the legal authority under which the rule is proposed; and
iv. Either the terms or substance of the proposed rule OR a description of the subjects and issues involved.
d. Amount of INFORMATION needed in the NPRM:
i. Chocolate Manufacturers:
1. FNS provided inadequate notice (when changing flavored milk rules) – was forced to reopen the comment period of the rule.
a. Agency had initially said flavored Milk was ok – but after getting more comments, flavored milk was cut from the program.
b. Agency did not provide adequate notice in NPRM that it was considering disallowing flavored milk from be included in the program.
2. The Agency does not have carte blanche to establish a rule contrary to its original proposal SIMPLY because it receives suggestions to alter it during the comment period.
a. An interested party must be alerted by the NPRM TO CHANGES EVENTUALLY ADOPTED from the comments.
3. Notice is ADEQUATE IF the changes in the original plan “are in character with the original scheme,” and the final rule is a “logical outgrowth” of the NPRM and Comment Period already given.
4. Notice is INADEQUATE IF the federal rule materially alters the issues involved in the rulemaking or, if the final rule “substantially departs from the terms or substance of the proposed rule.”
2. Opportunity to Comment/Comments from the Public – APA § 553(c)
a. After NPRM is issued, agency SHALL give interested persons an opportunity to participate in the rulemaking through:
i. Submission of written data;
ii. Views
iii. Arguments (with OR without the opportunity for oral presentation).
b. NOT Required:
i. Oral presentation or hearing.
ii. No specific time period mandated
c. Benefits of Comments from the Public:
i. Gives a “legislative history” for the purposes of judicial review.
ii. Gives additional information that may not have been previously considered.
iii. Gives alternatives.
