ADMINISTRATIVE LAW OUTLINE
a. Administrative law is the power of government agencies
i. How agencies function and what they can and cannot do
b. Important parts of class
i. Federal Administrative Procedure Acts- main act
1. enacted in 1946
2. provides for judicial review
ii. Freedom of Information Act
iv. Administrative decisions
1. and judicial review of actions
c. most cases:
i. involve an agency and someone/thing outside the agency as being unhappy with what the agency has done.
1. As well as a person being happy about what was done.
ii. Usually 3 different perspectives
iii. Most deal with stuff that happens before the agency made the decision. People try and influence the agency (formally and informally) and others may bring suit based on those actions.
II. Chapter 1
a. APA § 551- What is an agency
i. “each authority of the government of the US whether or not it is within or subject to review by another agency, and then it exempts entities including Congress, courts and governments of DC and territories, military and court martials.
1. cases have excluded President states
ii. The broad authority of federal government
1. must be created by statute
iii. Chart 1-1: list important federal agencies
1. known as executive agencies- headed and served by the president
2. departments- heads of which were part of cabinet
iv. Chart 1-2: list state agencies
v. Independent agencies
1. headed by a panel of people- members appointed by president, serve staggered terms, majority vote, can only be removed for cause, bipartisan
b. What do agencies do?
i. Execute laws that Congress pass
1. Regulate private conduct (SEC, OSHA, etc)
a. Regulation can make markets more efficient when the government reduces or eliminated market failures, address inadequate consumer information, and deal with insufficient competition
2. administer entitlement programs (medicare, food stamps, etc)
a. dispense federal and state funds for specific purposes to the proper recipients by assuring that
i. the recipients qualify for the program AND
ii. they will in fact receive benefits
3. carry out other government tasks (NASA, National park Service, etc)
a. manage federal property- ex: National Park service
ii. what agencies do is defined by statute, must be acting to power granted to them
c. types agency actions:
i. rulemaking- corresponds to legislative actions
1. it promulgates a regulation that has the same force and effect of law as if it have been passed by congress of a state legislature
2. issuing rules or regulations to fill in gaps of statutes that they are supposed to be enforcing
3. rulemaking authority is limited to what it has been delegated
a. look to law that creates and mandate law
4. agency rules are only valid if they follow proper procedural requirements
5. come out on a daily basis in a federal register
a. updated annually in CFRs
ii. adjudication- corresponds to the judicial function of courts
1. applying the rules/statute to a set of facts before them to determine if the regulated entity is in violation of the statute, or if the entity is entitled to the benefits of the program
2. can seek judicial review of agency decisions to ensure that it is consistent with the enabling act and the agency has obeyed procedure in reaching its decision.
3. Many agencies have not been granted the authority to adjudicate alleged violations of statute for regulations which those agencies enforce. ??
4. subset of adjudication is licensing- whenever it grants permission to someone to do something
a. not necessarily adverse parties
iii. investigation- corresponds to executive
1. occur as incident or preliminary to rulemaking or adjudication- when agency seeks information or data to support such action.
2. power to subpoena documents, report to agency, inspect premises, compel agency to file reports
a. ex: investigating health code violations at a restaurant.
iv. Separation of powers
1. problems with having all these functions in one agency: no checks and balances
a. the headless fourth branch-
i. can’t vote for the head of these agencies and they regulate everything. Basically can do whatever they want, they have legislative, executive, and judicial functions
ii. APA enacted to respond to these problems. Created guidelines for these agencies and set up judicial review of their actions.
i. Applicable to all federal agencies but there are certain additional procedures that may be required by the agencies themselves
1. defines the procedural rights of persons outside the government and structures the manner in which person inside of government make decisions
ii. Look at the mandate statutes of law in addition to the APA
1. these may substitute or add requirements to the APA
iii. Procedural requirements of the APA
1. adjudication- agency process for the formulation of an order §551(7)
a. order §551(6)- final disposition… of an agency in a matter other than rulemaking but including licensing.
b. So adjudication is a
nd capricious standard
i. affirm decision unless the judge can say it was arbitrary
ii. most deferential standard
iii. usually used for informal
c. substantial evidence
i. uphold decision if it is reasonable
ii. need not agree with agency’s conclusion to affirm it, it only needs to find agency action was reasonable.
v. Advantages of more processes
1. more opportunity for public comment and participation
2. more time to go through process and allows more time to lobby against it (could be a con)
3. come up with better law if you go through all the processes
III. Chapter 2- Rule Making
i. Rule Making- “agency process for formulating, amending or repealing a rule.”
ii. Rule- “agency statement of future effect designed to implement, interpret or prescribe law or policy.”
1. general applicability
2. future effect unless statute authorizing the rule explicitly empowers the agency to adopt a retroactive rule
b. Where Rules Come From (Sources of Proposed Regulations)
i. Legislation requiring specific regulations, often by a particular time or upon the occurrence of certain events
ii. Mandate Statute empowers Agency to promulgate rules
1. Generally broad
2. Rules necessary to implement Act in accordance with the statute
iii. Staff members may suggest that a rule is necessary when they identify problems that the agency should address
iv. White House or Congress can ask the agency to act
v. The Public has the ability to ask the agency to act
1. Lobbying, public interest groups, corporations, and organizations
2. Official way is to submit a petition for a ruling, pursuant to APA 553(e)