ADMINISTRATIVE LAW
I. ADMINISTRATIVE LAW PRACTICE
A. What is Admin. Law?
1. Two Facets of Admin. Law
i. the law that governs agencies
ii. the law that agencies make
2. What is an Agency?
i. APA § 551 – Definitions
a. Agency – defined in terms of what an agency is not
-an individual can be an agency
-the President is not an agency, per the Supreme Court in
Franklin v. Massachusetts,
-Departments are agencies
-have the highest status
-comprised of sub-entities that may be considered
agencies for legal purposes
-Independent Agencies – freestanding agencies
-agencies that are not part of a department
-slightly more independent from the President
than an executive agency
-Executive Agencies – President has great influence over
these agencies
-all Departments and almost all their sub-entities
are executive agencies
ii. Congress
-creates agencies through “organic” statutes or enabling acts
3. What do Agencies Do?
-Federal agencies execute the laws of the United States
i. agencies regulate private conduct
a. two justifications for regulation of private conduct
1. a private market system that is subject to imperfections
that the govt. can remedy, or at least mitigate
2. to conform market outcomes to social values; when
unregulated markets produce results or consequences
that a majority of the citizens consider unacceptable,
even if efficient from an economic perspective
ii. administer entitlements programs
-dispensing federal and state funds for specified purposes to the
proper recipients
-ensure that the recipients qualify for the program and that those
who qualify will receive the benefits with a related regulatory
effect
iii. everything else
-not everything agencies do can be characterized as regulation or
administration of entitlements
-EX: IRS – collects taxes
4. Types of Agency Actions
i. Three types of agency action
a. Rulemaking: a quasi-legislative function where the agencies
promulgate rules and regulations
-Congress delegates power to agencies to make rules
-agencies can only regulate the subject matter contained
within their respective enabling acts
-United States v. Grimaud
-agency rules are valid only when the agency
follows the proper procedures for promulgating
such rules
-agency rules are subject to judicial review
b. Adjudication: a quasi-judicial function where the agencies apply existing rules or statutes to a set of facts to determine what outcome is required by that rule or statute
-an agency’s power to adjudicate is limited only to the
adjudicatory functions contained in the enabling act
-many agencies have not been granted authority to
adjudicate alleged violations of statutes or regulations
which they enforce
-these agencies must bring actions in a federal court
-agency adjudication is subject to judicial review
c. Investigations: a quasi-executive function where the agencies
determine whether a person has violated agencies rules or
regulations
-with this function, agencies have the power to compel
persons to turn over to them information in those persons’
possession or to inspect the premises where those persons
work or reside, provided Congress grants this authority to
compel
-an agency’s power to compel is subject to judicial review
ii. Separation of Powers Issues
-all functions of the three branches of govt. can be combined to
such a degree, so that an agency may make law – by rulemaking – and enforce it against persons through agency adjudications
-while the legislative and executive branches of govt. are
accountable to the electorate, agencies are not
B. Administrative Procedure Act – APA
1. Definition of Adjudication and Rulemaking
i. Adjudication
-accomplished through an order, which is the whole or part of a final
disposition other than rulemaking – APA § 551(6)
-in most instances adjudication looks to the past, and applies existing agency rules and regulations to a specific set of facts
-licensing decisions are adjudications, because they apply to specific circumstances and parties
-adjudications, though they may announce general principles, are technically binding positive law only onthe parties to the adjudication
-Note: These distinctions are not perfect ones; there are rulemakings that look a lot like an individual adjudication, and there are adjudications that look a lot like general rulemakings
a. Two Types of Adjudication
1. Formal Adjudication –
-APA § 554 provides for
-notice to interested parties and an offer of an
opportunity to settle
-exceptions to agency adjudications
-no ex parte communications between presiding officer
and others
-the hearing to follow APA §§ 556 – 557
-APA § 556 addresses
-procedures for conducting the hearing, especially
regarding Administrative Law Judges (ALJ)
-while ALJs are agency employees, there are
two features of appointment that give ALJs
independence from the agencies for which
they work
-their pay is determined by a separate
agency outside of their own; and
-they are not subject to removal
except after a hearing before the
Merit Systems Protection Board,
procedures on new programs or agencies
-they are referred to as “hybrid” because
they add some additional procedures to
§ 553’s requirements, while not going so
far as to mandate the procedures of
§§ 556 – 557
2. Judicial Review
-both adjudicatory and rulemaking decisions are subject to judicial
review; however,
-the APA contains several rules that may limit if or when judicial
review may be obtained
-APA § 701
-if statutes preclude review then a party is not entitled to review; also no review if an agency action is committed to agency discretion by law
-an agency action must be final before the decision can be subject to review
-the party challenging the agency action must have standing
-according to the APA, a party has standing if it suffers a
legal wrong or it is adversely affected within the meaning
of the relevant statute
-if a court undertakes judicial review, it may review:
-the constitutionality of the agency action
-whether the agency action is contrary to statute
-the adequacy of the procedures used by the agency
-the substantive adequacy of the agency’s decision
-three standards of review for substantive adequacy
-de novo standard
-the court must agree with the agency decision to uphold it
-substantial evidence standard
-the court need not agree with the agency’s decision to affirm it, but it needs only to
find that the agency’s decision is reasonable
-arbitrary and capricious or abuse of discretion
-courts may affirm an agency decision
unless judges can say the decision is
arbitrary
-most deferential to agencies
II. RULEMAKING
A. Rulemaking Initiation
-top down approach (Congress or the President initiate a rule)
-bottom up approach (staff of the agency may propose a rule)
-lobbying
-if a petitioner gets no where with the agency, it can approach the
legislature to enact a statute or to initiate the rule – even before it
seeks judicial review of the agency’s disposition regarding its petition
1. Petitions for Rulemaking
