Where is administrative law found?
· 1. Administrative Procedure Act (APA)
· 2. Organic statute
o Statute giving power to the agency
o May sometimes trump or change the default of the APA, so this can be controlling over the APA
· 3. Regulations (procedural)
o Governing how the agencies will procedurally exercise their power
o What they must do before handing out an order/rule
· 4. Constitutional rules
o Rarely come into play, but they trump everything else when they do
§ Due process
§ Separation of powers
· 5. Policy
o What makes good policy, what makes sense from a policy standpoint
§ Floodgates of litigation, arbitrary decision making, etc.
o a. Accuracy, need a decision that is technically correct and factually well founded
§ Need to have policies and procedures in place that lend themselves to good decisions.
o b. Legitimacy
§ Keep agencies accountable in order to be perceived as legitimate, and give people a vehicle to affect change or oppose/use the agency
o c. Efficiency
§ need to keep the process within this and allow facts to be found quickly enough that things can get done.
§ Sometimes less people need to be heard so that the process can actually move.
o On the exam, don’t start with policy but don’t ignore it either
II. The Relationship of the Individual to the State
A. Rules vs. Orders
v RULES(rulemaking) APA §551(4)
General, prospective statements of law that apply to a class of persons or entities
(i.e., speeding law; posted speed limit)
· Generally, it’s a rule if it has the “force and effect of law” (Sugar Cane Growers Cooperative of Florida v. Veneman)
· Generally/Broadly applicability (i.e., value of all property in a city, general facts=”leg facts”)
· Minimal process
· Future Affect/Forward looking (unless there is a “clear statement” that it may be retroactive)
èTrigger= concerns about future conduct
(If the agency finding is based on “legislative facts”à r
greater process being required
· Individualized (i.e., agency action affects a particular party and is based on facts specific to a situation of that party= “adjudicative facts”)
· Order: specifically applicable to people/group of people for a past action, even if potentially framed so as to look like it is generally applicable (Londoner v. City and County of Denver)
· Backward looking
è Trigger=is something that happened in the past
(If the agency finding is based on adjudicative factà adjudication)
LONDONER v. CITY AND COUNTY OF DENVER
An agency, with delegated authority to tax property owners for street paving, was constitutionally required to hold individual hearing. The agency taxed the property owners based on the benefit conferred on the particular piece of property. Because the agency’s decision was particualrlzied to the situation of each property owner the Court held that Dp requires a hearing with the right to present arguments and evidence.