1) Administrative Law Practice
a) What is administrative law and why should we study it? – 1) Work for an agency, 2) client vs. agency, 3) extension of ConLaw
i) What is an agency?
(1) 551(1) – Any gov’t entity not congress, the courts, state government, or the military.
(2) Departments are the head of the administrative law food chain. A department head is a secretary, and under each department are many agencies.
(3) There are also independent agencies and executive agencies.
(a) Independent Agencies
(i) Independent from the president
(ii) Independent agencies are headed by a multimember group (commission, board, council, or conference)
(iii) Normally, the members of the group can only be removed for cause.
(iv) Agency heads usually serve a term of years
(v) Generally, political alliances are limited (on a commission of 5, no more than 3 could be of the same political affiliation).
(b) Executive agencies are usually the converse of independent agencies for the factors mentioned above.
(4) State agencies usually model federal agencies, but in many state agencies the head of the agency is an elected official.
ii) What do agencies do?
(1) Regulate Private Conduct
(a) Regulatory Agencies generally do this function (i.e. EPA).
(b) Justifications for regulation of private conduct
(i) The government can remedy or mitigate problems associated with a private market system.
(ii) The operation of unregulated markets may also produce results or consequences that a majority of citizens consider unacceptable, even if they are efficient from an economic perspective.
(iii) Regulations can make markets more efficient when the government reduces or eliminates such market failures.
(iv) Protect inadequately informed consumers.
(v) Protect against monopolies.
(vi) Internalize Collateral Damage – when the activity of a company harms other persons or the environment, government regulation can lessen the damage.
(2) Administer Entitlements Programs
(a) Some agencies administer benefits.
(b) Generally the focus is identify who can receive the benefits, then get the benefits to the person.
(c) In terms of socialism – it “spreads the wealth.”
(3) Everything Else
(a) Collect taxes
(b) Admit/deport aliens
(c) Issue passports, etc.
iii) Types of Agency Action
(1) Rulemaking
(a) Congress delegates the authority to make rules to agencies.
(b) The rules are published in the Federal Publisher.
(c) Agencies rulemaking is limited authority and subject to judicial review.
(i) Scope
(ii) Agency must justify
(iii) Procedural limitations
(d) An agency’s lawyer will
(i) Ensure agency compliance with procedure
(ii) Ensure agency stays within statutory authority
(iii) Defend agency in court in court if needed
(2) Adjudication
(3) Investigations
(a) Compel production of documents, witnesses, records, reports, and conduct inspections.
iv) Separation of Powers
b) A Walk Through the APA
i) Definition of Adjudication and Rulemaking – Adjudication is the agency process for the formulation of an order. In other words, adjudication is any final agency disposition except dispositions produced by rulemaking. Rulemaking is the agency process for formulating, amending
y mandates determine if formal adjudication is required. Formal adjudication is covered by section 554.
(b) 554 Requires several procedures:
(i) Notice
(ii) Offer an opportunity to try to settle
(iii) Adjudicator is prohibited from ex parte communications
(iv) And adhere to the procedures of 556 & 557.
1. 556 (hearing) authorizes the use of an ALJ.
a. ALJ’s are special. Their pay is determined by OMB, and can only be fired after a hearing before the Merit Systems Protection Board.
2. 557 addresses the appeal procedure.
a. ALJ shall initially decide the case (but that step can be bypassed by the agency).
(2) Informal Adjudication – if an agency’s mandate does not require adjudication to be “on the record” then the APA has no prescribed procedures for adjudication.
(a) But –
(i) The mandate may require some other form or procedures for a hearing
(ii) The Due Process Clause still limits the extent of “informal hearings”
1. “A full trial-like hearing is not generally required to satisfy due process; instead, what is required is “some kind of hearing.”
iv) Judicial Review
(1) The APA has several rules that may limit if or when judicial review may be obtained.
(a) 701 – a person is not entitled to judicial review
(i) if “statutes preclude review” or
