Administrative Law Practice
What is Administrative Law?
Agencies are almost the fourth branch of government. Agencies actually make up most of the law that we consider statutory. This is somewhat of a product of the New Deal.
– Pg. 6-9 is an incomplete chart of agencies.
Departments have the highest status.
Usually headed by a secretary, all heads used to be considered the Cabinet.
Executive Agencies- Agencies within Departments
Headed by a single person
President can remove whenever he wants.
Members serve until they resign or are fired.
There is a large difference between executive agency and independent agency.
Freestanding agencies are not part of a department.
Headed by a group of people. (5-7 people)
Members can only be removed for cause.
Members serve for a term of years. This does not fit within presidential terms, therefore it is difficult to “capture” an independent agency.
A majority cannot come from any one political party.
Usually headed by elected officials, not appointed by governor. So many agencies are directly accountable for their actions. This removes an aspect of accountability because there is no-one to fire they if they mess up (they just won’t be reelected).
Franklin v. Massachusetts (S.Ct.1992)- The president is not an agency under the APA. Therefore the President does not have to act pursuant to the APA.
What do Agencies Do?
1. Regulate Private conduct-
Generally called regulatory agencies. Most important type of agency. Operate at federal, state, and local levels.
i. Reasons to have it
1. Private market system that must have imperfections regulated.
a. Regulates/prevents monopolies.
2. Unregulated markets can create situation that majority disapproves of. (fairness/equity)
a. Employment discrimination/civil rights regulation.
ii. Imposes a set of rules, norms, guidelines on the free market.
2. Administer Entitlements Programs-
The bulk of the federal governments budget is spent redistributing resources. Redistribution of wealth. Social Security, Medicare/Medicaid, welfare, food-stamps. Also includes highways, etc.
an actual court.
ii. Concept of judicial review. Prevents the 4th branch of government from running away with the show. Limits the ultimate power of the administrative agencies.
1. De novo- Court substitutes its judgment for the agency.
2. substantial evidence- Uphold if reasonable
3. arbitrary and capricious- Abuse of discretion
Executive branch function of law enforcement. (Will not spend much time on this). Subject to the same as a traditional police force.
i. Could be a site investigation
ii. Subpoena power is the most common investigative tool.
Agencies originally publish in the federal register, and the CFR is published annually.
o CFR is where all the detail that congress left out is published.