Chapter 5
Administrative Law
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Quote
• “I don't know jokes; I just watch the
government and report the facts.”
– Will Rogers, Humorist, 1879-1935
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Administrative Rules and Regulations
• Six hours on the tarmac: how can we protect ourselves against
this possibility?
• Can Congress act to prevent such action?
• Do the courts have authority to resolve such a problem?
• How about the President? Governor? Mayor?
• What gives the federal Dep’t of Transportation the authority
to order airlines to limit tarmac waits?
• Was the DOT correct in implementing the three-hour rule?
• Do the voters have any control over the DOT?
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What Is Administrative Law?
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Law of administrative agencies, a vast portion
of government sometimes called the “fourth
branch of the government.”
Probably affects citizens of the United States
far more than judicial proceedings or
legislation
Term used to describe two very different
subjects of law
– Law governing agency process and procedure
– Law that agencies create and apply
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Administrative Agencies
• Administrative agencies are a consequence of an
industrialized society
– Need exists for standing bodies to administer fluid rules
for specialized aspects of our society
– First true independent administrative agency was the
interstate commerce commission (ICC) established in
1887 to monitor private railroad activity
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EXAMPLES OF ADMINISTRATIVE AGENCIES
• Federal:
– IRS
– Dep’t of Justice
– SEC
– FTC
– ICC
– FAA
– Homeland Security
– EPA
– EEOC
– NLRB
SEE Exhibit 5.3
• Washington State:
– Dep’t of Social and Health
Services
– Attorney General
– Securities Division
– Consumer Protection Div.
– Dep’t of Transportation
– State Patrol
– Dep’t of Ecology
– Human Rights Commission
– PERC
– Secretary of State
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Administrative Agencies
• Agencies are created by
– Constitution
– Statute creating agency (Enabling Statute) – most
common
– Executive fiat authorized by statute
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Types of Administrative Agencies
• Executive Departments
– A dependent executive agency or department Is headed by
a single appointment at the pleasure of the president –
Example FBI; Homeland Security
• Independent administrative agency
– Members appointed by the president with the consent of
congress
– Administered by group rather than a single agency head.
Usually five to eleven members
– Members cannot be terminated except for cause or upon
completion of term of office
– Example: National Labor Relations Board/William
Humphrey and the FTC
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History of Administrative Agencies
• Early executive agencies: Departments of
State, Treasury, War, Post Office, AG
• ICC: 1880s
• FTC: 1914
• New Deal: SEC, FCC, NLRB
• 1960s and 1970s: EPA, EEOC, OSHA
• Continual tension between regulation and
deregulation
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Enabling Statute
• Congress creates the agency and the agency further
defines itself and its mission
• Delegations are lawful provided they are not overly
broad. Adequate guidelines need be provided in the
enabling statute
• The legislature recognizes the complexity of detailed
government regulation of the subject activity and the
necessity that persons who create the law be experts in
the field they regulate
• Agencies are given various powers to accomplish the
objectives of the enabling statute
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Administrative Procedure Act (APA)
• Law that mandates various procedures for
most federal administrative agencies.
• Basic purposes
– Require agencies to keep the public informed of
their organization, procedures and rules
– Provide for public participation in the rulemaking
process
– Establish uniform standards for the conduct of
formal rulemaking and adjudication
– Define scope of judicial review
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Delegation of Power
• Guidelines to determine whether delegation is valid:
– To whom is the delegation made?
– Is the delegation for a proper purpose?
– Have guidelines for delegated conduct been provided in the
legislation?
– Does a fair process for creating regulations or administering
tasks exist?
– Reason for the delegation
– Does delegation affect personal rights?
• The APA provides answers to most procedural questions
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State Agencies
• Executive: WSP, DSHS, Department of
Licenses, Department of Employment Security,
Department of Labor and Industries
• Independent/ administered by board: UW,
Utilities and Transportation Commission
• Independent/elected by voters: Attorney
General, Secretary of State, Insurance
Commissioner
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Leading Areas of Administrative Law
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Business Finance – SEC, Federal Reserve Board
Communications - FCC
Employment Practices – NLRB, PERC, EEOC
Environment – EPA, Dep’t of Ecology
Energy – FERC, NRC
Free Enterprise and Healthy Competition - FTC
Other Areas of Administrative Law
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Administrative Functions
• Quasi-legislation - Rule making
– Licensing
– Regulations
• Investigation
– Findings
– Reports
– Search/seizure
• Enforcement
– Quasi-adjudication – Formal fact finding and review
– Orders/decisions
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Rulemaking quasi-legislation - regulation
• Primarily controlled by the Administrative Procedure Act
(APA)
• Process for rulemaking: Rulemaking agencies are subject
to the same constitutional procedural requirements as
the legislature
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Informal consultation
Correspondence
Polls
Questionnaires
Conferences
Interviews
Legislative type hearings
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Types of agency rules
• Regulations
– Substantive - Legal equivalent of a statute.
Compels compliance Creates rights and duties
– Procedural - How to perfect rights and comply
with mandated duties
• Rules
– Interpretative - what an agency determines a
statute or regulation means. Internal rules
• Once regulations are adopted, they have the
same force of law as a statute
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Rulemaking quasi-legislation - regulation
• Federal register - Publication and notice
– Requirements for comment proceedings
– Proposed rules, and final rules
• Parties are usually given sixty days to comment
• Public hearing may be part of the process
• Notice must provide indication of what will take place
• Negotiated Rule Making: Brings together representatives
of a rulemaking agency and stakeholders to seek
consensus rules before the agency formally submits the
rule to the rulemaking process
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How do people find out about proposed
regulations?
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Trade associations
Legal specialists
Special legal publications
Sometimes specially directed notice from
the agency
• E-mail and or fax notice
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Agency Information Gathering
• How does government get information?
– Is it voluntarily given?
– Use of subpoena if authorized by statute.
– Reports required by law
• Physical inspections: Right to be secure from unreasonable
search and seizure - warrant requirements are less demanding
for administrative search than a criminal investigation
– Search warrants
– Warrantless searches
• Self-incrimination protection exists
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Administrative Hearing - Quasi-Adjudication
• Policy making by hearing and resolution of individual
disputes
• Decides fact based cases when an agency’s action
denies a person a license, right, entitlement, or
privilege
• General Requirement of Due Process: Fair Treatment
– Balance of private interest with the government’s interest
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Nature of Administrative Hearings
• Administrative due process concerns: Judge Friendly
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Prompt notice of hearing
Timely notice of hearing
Convenience of parties in scheduling hearing
No prior involvement by hearing officer
Hearing officer agency member or Administrative Law Judge
Exclusive record provided by the process
Opportunity to present evidence and witnesses
Opportunity to rebut and cross-examination the other party
Right to attorney with cost borne by party
Statement of reasons for the decision
Public right to attend?
Judicial review?
What is missing?
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Example of Federal Administrative
Action
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The 2004 Super Bowl
Janet Jackson/Justin Timberlake
FCC fine
Court review and decision
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Example of Administrative Action
• Day care center licensed by State
• Inspected regularly by DSHS social worker
• Rule: license may be revoked if licensee abuses drugs or
alcohol
• Center’s license revoked
• Licensee appealed; hearing set before ALJ
• Nature of hearing; reconsideration
• Court appeal?
• Resolution negotiated
• Note: balance between public interest in safeguarding
individuals versus business interests
• ADR?
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Limits on Agency Power
• Political control
– Appointment
– Legislation
– Budget
• Constitutional guarantees
• Public accountability
– Sunshine laws – Open meeting
– Regulatory Flexibility Act
– Freedom of Information Act
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Freedom of Information Act
• Requirement that governmental agencies make information available
to the public. Part of the APA
• Each agency required to make information available
– Statements of general task of agency, organizational work flow,
formal and informal procedures.
– Rules of procedure and forms in use
– Adopted rules and statements of policy, and interpretations of general
applicability
– Final adjudication opinions
– Statements of policy not published in the federal register
– Administrative staff manuals and instructions to the staff that affect
member of the public
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Judicial Review
• Ultimate power to declare the law exists in the
courts
• The extent and nature of the review is subject
to limitation. Limiting factors:
– Legislative
– Executive
– the courts themselves
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Judicial Review- Questions
• Judicial deference to agency rationale
– Superior agency expertise
– Review may destroy value of more efficient
administrative process
– Inroad on already crowded court calendar
• Broad questions of review
– Scope of the courts’ reviewing power
– Standing to sue
– Exhaustion of administrative remedies – still a
valid requirement?
– Is a review available in a given case?
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Defenses to Agency Action
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Agency exceeded statutory authority
Agency improperly interpreted laws
Agency violated a constitutional provision
Agency acted in violation of procedural
requirements
• Agency acted arbitrarily or capriciously, or abused
its discretion
• The Agency’s conclusion was not supported by
substantial evidence.
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Your take-away from today’s class
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