Administrative Law Outline- Hughes
Spring 2012
I) Introduction
A) Admin law includes 3 bodies of law
1) Statutory (APA)
2) Common law (judicial decisions)
3) Constitutional law (due process)
B) Agencies are created by statute
1) Statute is the main law controlling what an agency can do and how the agency does whatever it does
(a) Substantive provisions- control what an agency does (mission, powers)
(b) Procedural provisions- control how an agency does things
2) Organic or enabling act- law that creates an agency or authorizes the agency’s creation
3) Only created by legislative bodies
C) Agencies executive laws in two ways
1) Collect and spend govt’s money
2) Regulate our behavior
D) 3 different kinds of agencies
1) Departments
(a) Heads- in the cabinet, have title of secretary
(b) Have a number of agencies within the dept
(c) Serve “at will” of president
2) Non-departmental agencies
(a) President appoints head with advice/ consent of senate
(b) President can interfere with regulations
3) Independent agencies
(a) Heads are appointed by president with advice/ consent of senate
(b) About 15 of these
(c) Common characteristics:
(i) Headed by multi-member groups rather than a single head
(ii) No more than a simple majority of these members may come from one political party
(iii) Members of the group have fixed, staggered terms so that their term does not expire at the same time
(iv) Can only be removed from their position for “cause”
(d) Advantages of independent agencies
(i) Adj. decisionmaking- president shouldn’t control outcome of adj. disputes based on political beliefs
(ii) Rulemaking- enhance objectivity
(e) Disadvantages of independent agencies
(i) Adj.- head of agency should be accountable
(ii) Rulemaking- policy decisions lack political accountability and constitutional legitimacy
(iii) Rulemaking- lack of coordination between agencies
4) There are some nonprofit corporations that the govt charters to provide a service, rather than create an agency to do it
(a) Not considered agencies, not subject to APA
(b) Subject to constitutional limitations
E) 3 types of agency action
1) Rulemaking- rules that have the same effect of law as if it had been passed by Congress
(a) Published in the Federal register (FR) daily
(b) Annually, the regulations are published in the Code of Federal Regulations (CFR)
(c) Advantages over adj
(i) Agency can decide issue and set a standard in a single proceeding
(ii) Rulemaking is faster than N & C
(iii) Rule is law, not just precedent
2) Adjudication- applies an existing rule or statute to a set of facts to determine what outcome is required by the rule or statute
(a) Some agencies don’t have this authority so they must bring an action in federal court to enforce statute/ reg
(b) Advantages over rulemaking
(i) Agencies can see correct policy in the context of a particular fact situation
(ii) Agencies can choose the best case for establishing a standard
(iii) Typically involve a few parties, easier to manage process and avoid outside pressure
3) Investigation- agencies determine whether someone may be in violation of an agency rule of the agency’s legislative mandate
(a) Subpoena power
(b) Reporting requirements
(c) Inspections
F) Law of agencies (in order of importance)
1) Constitutional- both substantive and procedural
(a) 1st amendment- substantive, telling govt not to do something
(b) 5th amendment- procedural, due process
2) Agency specific statute
(a) Organic act
3) Agency general statute
(a) Law that imposes duties on a number of agencies
4) APA
G) 3 ways a rule can come about
1) Statute can command to make regs
2) Agency can make rules on their own
3) Interested party has the right to petition for the issuance, amendment or repeal of a rule
H) 4 different kinds of claims
1) Ultra vires- does the agency have statutory authority to do these things?
2) Prohibition- does the action the agency has taken violate any other law or the constitution?
3) Procedural- did the agency promulgate the rule in the correct way?
4) Substantive- this rule is stupid and it shouldn’t be supported
I) Misc black letter topics
1) Consistency- agencies must follow their own rules, must treat similar cases similarly
2) Equitable estoppel- if you say something to someone that induces them to take action, the people are allowed to rely on those representations- but estoppel doesn’t run against the govt b/c there are too many actors out there working for the govt
3) Collateral estoppel- if you litigate a case and lose, you can’t litigate the same issues again, appeal time has run
4) Retroactivity- when an agency changes its rule or a decision in an adj
II) Introduction to APA
A) Defines the procedural rights of people outside the govt and structures the manner in which people inside the govt make decisions
B) Does NOT grant jurisdiction!
C) If a specific agency statute has a procedural provision that differs from the APA, the specific provision controls
D) 1887- first modern agency is the ICC- empowered to regulate rates for the RR
E) After New Deal, agencies were struck down b/c of delegation
1) 1946- APA drafted
F) Adj.- agency process for the formulation of an order
1) An order is the whole or part of a final disposition other than rule making but including licensing
2) 2 kinds
(a) Informal
(i) APA has no mandated procedures
(b) Formal
(i) APA requires the agency to use procedures that resemble a trial
(ii) Must give notice to parties of the hearing, offer an opportunity to reach a settlement, no ex parte communications, agency must conduct the hearing in accordance with § 556 and 557
G) Rulemaking- agency process for formulating, amending or repealing a rule
1) Agency statement of future effect designed to implement, interpret or prescribe law or policy
2) Only binding on future conduct
3) 3 kinds
(a) Informal
(i) Also called “notice and comment”
(ii) Fewer procedures and less formality
(iii) More common and quicker
(iv) 3 step process
(01) Agency publishes notice of proposed rule in FR
a Exceptions: interpretative rules, general statements of policy or rules of agency organization, procedure and practice OR when an agency has good cause
(02) Agency must give interested persons an opportunity to participate in the rulemaking thru submission of written data, view or arguments with or without opportunity for oral presentation
(03) Agency must incorporate in the rules adopted a concise general statement of their basis and purpose
(b) Formal
(i) Must undertake the same type of trial it would use for formal adj
(ii) Required when magic words are in statute
(01) Magic words- “when rules are required by statutes to be made on the record after opportunity for an agency hearing”
xisting sources in the region
5) Allowances- a company is given a certain number of allowances, if the emissions exceeds that number, it must buy the excess in allowances the next year to pay back its debt and pay a civil fine
(a) 3 sources of allowances- allocated to existing plants, buy allowances from other plants, EPA auctions
IV) Rulemaking
A) Two kinds
1) Informal
(a) 3 basics
(i) Public must be given notice of proposed rulemaking
(ii) Public must be given opportunity to comment orally or in writing
(iii) Agency must incorporate in the final rule a concise general statement of its basis and purpose
(b) Biggest issue is the adequacy of notice after § 553 N & C is required
2) Formal
(a) 3 justifications for formal rulemaking hearings
(i) To develop info so that the agency may make a reasonable decision
(ii) To create a record for judicial review
(iii) To give persons affected by proposed opportunity to question the agency’s facts
3) Negotiated rulemaking- supplements N & C procedures of the APA with a negotiation process that occurs before the agency issues a proposed regulation
B) Claims against rules
1) Ultra vires
2) Procedural
3) Prohibition
4) Substantive
C) 4 kinds of rules
1) Legislative- have the force of law
(a) Substantive rule
(b) Bowen- these grant rights, impose obligations, or produce other significant effects on private interests or which effect a change in existing law or policy
(c) Anthony- something that has gone through notice and comment/ formal rulemaking OR is binding without having gone through N & C
2) Interpretive- agency’s opinion on what the law means
(a) Restate/ explain pre-existing legislative acts and intentions of Congress
(b) Substantive rule
(c) Non-legislative rule, can make this without express statutory authority
3) Policy statements- all substantive nonlegislative issuances that are not interpretations are policy statements
(a) Allows an agency to announce their tentative intentions for the future without binding themselves
(b) Not legally binding
(c) Substantive rule
(d) Non-legislative rule, can make this without express statutory authority
(e) American Business Assoc v US- two criteria test
(i) Unless a pronouncement acts prospectively, it is a binding norm (a policy statement may not have a present effect)
(ii) Does the policy statement leave the agency and its decision makers free to exercise discretion?
4) Procedural rules
(a) Non-legislative rule, can make this without express statutory authority
(b) Does the agency action encode a substantive value judgment or put a stamp of approval/disapproval on a given type of behavior?
5) Interpretive rules, policy statements and procedural rules are EXEMPT from § 553
