Prof. Amos Admin Law Spring 2016
OVERVIEW
Administrative Law Broadly Defined. (1) The law that governs agencies and (2) the law that agencies make.
Philosophical debate → It’s all about how to allocate power to the agencies and the relationships between: (1) Congress, (2) Agencies, and (3) Courts.
Agency. § 551(1)
Agencies execute the laws of the United States.
An agency is ALWAYS created by statute.
An agency has no power without Congressional action
Agency Structure.
Departments. The highest ranking agency in terms of status.
Executive Branch Agencies. Subject to the control of the President. A Secretary serves until he/she resigns or is fired by the President.
Independent Regulatory Agencies. Not subject to the immediate control of the President. (APA still applies) (pg. 9 for list of agencies)
Headed by multi-member group, not a Secretary. (i.e. commission, board, council or conference. Typically 5-7 members.)
Members can only be removed for cause. (i.e. malfeasance)
Heads typically serve a fixed term, the terms are staggered terms so that the composition of the agency members never expires at one time.
No more than a simple majority may come from one political party. (i.e. if 5 members, only 3 could be in same party).
State v. Federal Agencies. Pg. 11.
Agency Categories. Congress delegates power to executive branch agencies. The agency uses its power to make and enforce regulations. The agencies decisions and laws are subject to review by the court.
Regulatory Agencies. Agencies that regulate private conduct. (i.e. FTC regulates practices by commercial entities). These agencies exist at state, federal and local levels.
Justification for regulation of private conduct.
Market imperfections
Unregulated markets
Note. Legislators may adopt regulatory programs for non-economic reasons.
Entitlement Agencies. Agencies that administer entitlement programs. (i.e. Social Security, Medicare, Medicaid, welfare, and food stamps – Federally created insurance programs). Focus is on dispensing federal and state funds to the right individuals.
Justification for entitlement programs.
Note.There may be a subsidiary or related regulatory effect with entitlement programs. (i.e. Medicare and Medicaid regulating the delivery of the health care in the nation by payment schedules adopted by Centers for Medicare and Medicaid Services).
Everything Else. (i.e. Internal Revenue Service, the U.S. Citizenship Immigration Services, Department of the State, etc. – pg. 16).
TIP: Understanding the purpose of a regulation is the first step in constructing arguments against that regulation.(i.e. convince an administrator that regulation is unwise or unnecessary from the public’s point of view).
Agency Action. There are three types of actions agencies can perform: (1) Rulemaking, (2) Adjudication, (3) Investigation. Congress authorizes agencies to take these actions, specifying which agencies can do what. Agencies can exercise all three powers because an agency doesn’t derive it’s power from the Constitution, but from Congress. Thus it has derivative power. If it exceeds its power – it is subject to review by Congress and the Courts. Further, Congress can modify an agency’s regulations.
Rulemaking. Agencies can promulgate rules that have the same force and effect as a law passed by Congress (i.e. regulations). This reflects the legislative power of agencies.
Adjudication. Agencies can apply an existing rule or statute to a set of facts to determine what outcome is required by the rule or statute. An agency decision from adjudication will have the same force of law as if it had been made by a court. This reflects the judicial power of agencies.
Note. An agency can create a rule and enforce it through adjudication.
Investigation. Agencies can determine whether someone may be in violation of an agency rule or legislative mandate. This power is necessary to obtain information outside of agency. This reflects the executive power of agencies.
Rulemaking v. Adjudication
Adjudication. The nature of facts in issue = past. Individualized.
Rulemaking. The nature of facts in issue = future. General applicability.
Separation of Powers: Agency Limitations.
Agencies are the fourth branch of government- Justice Scalie
Overview of the Administrative Procedure Act (APA)
Definitions → §551
Structure.Divided into two parts:
Agency Procedures (553-559)
Judicial Review (701-706)
Rulemaking
Informal Rulemaking → §553
Agency must publish notice of the proposed rule in the Federal Register.
Exception: (1) interpretive rules, general statements of policy, or rules of agency organization, procedure, practice and when (2) an agency has “good cause” for bypassing the notice. § 533(B)
Agency must give “interested persons the opportunity to participate in the rule making…” § 533(c)
Agency must “incorporate in the rules adopted a concise general statement of their basis and purpose” § 533(c)
Formal Rulemaking →554, §556 & §557
APA does not impose formal RM Vermont Yankee
Choice is Congress
TEST Formal RM 553(a)
“made on the record after an opportunity for an agency hearing”
Adjudication → § 554
Informal Adjudication → No procedures required.
Formal Adjudication → §556 & §557
Notice 554(b)
Opportunity to reach settlement 554 (c)(1)
Must be conducted in accordance with 556 & 557
556- hearing procedures
557 – decision based on evidence in record
TEST Formal Adj 554(a)
Statute requires determination on the record after a hearing
Judicial Review → §701. Courts may review whether the agency action is contrary to a statute or conflictive with the constitution. Courts may also review the substantive adequacy of an agency decision. Judicial Review Types 706
Constitutional review. Determine if agency action is constitutional.
Procedural review. Determine if procedure complied with the APA or other statutes.
Substantive review. Did agency correctly interpreted
ot enact rule retroactively (unless Congress has provided so).
Standard of Review. Informal rulemaking cases arbitrary and capricious 706(2)(A)
a court will only overturn an agency’s rule under 706(2)(A)
Formal rulemaking, it’s substantive evidence. 706(2)(E)
Adequate Notice.Federal agencies publish their regulations in the Federal Register – this is primary way agencies give notice. They are then published in the Code of Federal Regulations. (CFR)
Legislative Power.Agencies can promulgate rules that have the same force and effect as a law passed by Congress. This reflects the legislative power of agencies.
Notes.
Rate making = rulemaking.
Note. Lawyer Functions in the rulemaking process.
TYPES OF RULEMAKING. To determine what type of rulemaking an agency is engaging in, look to § 553 (c). In this section, formal rulemaking will be required if “rules are required to by statute [i.e. agency’s mandate/organic statute] to be made on the record after an opportunity for agency hearing.”
Informal Rulemaking → § 553 involves fewer procedures than formal rulemaking.
An agency is first required to publish a notice of the proposed rule in the Federal Register.
Second, an agency must give “interested persons the opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”Thus, the agency has the option to permit oral presentation.
Last, the agency must “incorporate in the rules adopted a concise general statement of their basis and purpose” [in-depth explanation of each later…]
Certain types of rules are excluded from 553:
Exception: (1) interpretive rules, general statements of policy, or rules of agency organization, procedure, practice and when (2) an agency has “good cause” for bypassing the notice. § 533(B)
Formal Rulemaking → §556 & 557 governs agencies when they engage in formal rulemaking. An agency must follow the procedures in sections 556-557 after publishing a notice of the rule in the Federal Register. In short, sections 556-557 require an agency to undertake the same type of trial as it would use for adjudication in formal rulemaking.
Hybrid Rulemaking. Although the APA only identifies informal and formal rulemaking, since the APA’s passage – Congress has created new agencies (or programs) while also imposing particular rulemaking procedures on those agencies. The imposed rulemaking procedures are called “hybrid rulemaking procedures.”
