Introduction to Administrative Law
For International LL.M. Students
Edward P. Richards
1
Administrative Law


Administrative law governs the organization and
functioning of government agencies, and how
their actions are reviewed by the courts.
Administrative law is the heart of the modern
state, and keeps life from being nasty, brutish,
and short.
2
Cross-Cultural View

The US administrative law system has many
parallels with non-Louisiana civil law systems
 An emphasis on codes, rather than case
precedent
 Inquisitorial rather than adversarial
adjudications
 The combination of functions in a single
agency, rather than in different branches of
government
3
Administrative Law Background


Non-US law schools put a much higher priority on
administrative law teaching so foreign law grads
are already more familiar with administrative law
than are US law grads
I will focus on the structure of the US system, but
assume you understand the basics of agency
functions.
4
Separation of Powers – Federal
Government





The US Governments is divided Into three branches:
 Legislative Branch
 Executive Branch
 Judicial Branch
The executive branch is headed by the president. The
president and the vice president are the only nationwide
office holders.
Each branch has unique powers.
Each branch was intended to keep the others in check.
The founders did not anticipate political parties.
5
Separation of Powers – State Government


State governments are also divided Into three
branches:
 Legislative Branch
 Executive Branch
 Judicial Branch
The executive branch in state governments is
divided among several statewide office holders
with powers independent of the governor.
6
Hierarchy of Laws



The United States Constitution is the ultimate
source of law, preemption conflicting state and
federal laws.
In theory, treaties prevail over conflicting state
and federal laws, but congress is reluctant to
ratify treaties that preempt domestic law.
Federal law preempts conflicting state laws.
7
Agencies are Established by the
Legislature


The agency enabling statute establishes the
agency's:
 Powers and Duties
 Organization
 Funding
 Standards for Judicial Review of the Agency's
Actions
Some state agencies are established by the state
constitution or constitutional amendments.
8
Agencies only have the Power Given by
the Legislature




General Grant of Power
 Public health laws
Specific Grants of Power
 Narrowly drawn statutes such as the Americans
with Dishabilles Act.
Contingent Grants of Power.
 Laws that are triggered by a declaration of a state
of emergency.
The Legislature cannot grant the agency more power
than the legislature itself can exercise
9
Executive Control in the Federal
Government


All enforcement agencies are in the Executive
branch.
 Enforcement can include orders to comply with
the law, fines, and criminal prosecution.
Congress can control agencies that only do
studies and investigations, such as the
Congressional Budget Office or the Library of
Congress.
10
Executive Control in the States


States have several elected executives that
control agencies, not a single head like the
president.
 The governor controls most agencies.
 The attorney general controls the legal office.
 Other state offices, like state auditor, also have
elected heads.
Some states even allow legislative agencies with
enforcement powers
11
Legislative Oversight of Agency
Appointments



The US Constitution provides that the senate
must approve the appointment of officers of the
United States.
The heads of most executive branch agencies,
and some of their subordinates, are officers of the
United States and thus must be approved by the
Senate.
The Senate can use this to threaten agencies
when the president is from another party.
12
Removal of Agency Heads


Most agency directors in the state and federal system
serve at the pleasure of the executive
 This is a major source of executive control over
agencies
Some agencies, called independent agencies, are run by
boards or commissions.
 Members have fixed, staggered terms and can only be
removed for bad conduct
 This limits executive control and gives the agency
some independence from political pressure
13
Non-Agencies and Administrative Law



The President is not an agency.
The military is a quasi-agency
 An agency for many organizational and procurement
purposes
 Not an agency for military actions
DOJ, police departments, and courts
 Agencies for basic governance
 Not agencies for their substantive criminal law work.
14
Agencies are the Vehicle for Carrying out
Political Policy



Enforcement policy
 When does a business get a second chance and when
do they get closed for violating regulations?
 When do you use quarantine and isolation?
Fiscal policy
 Which diseases do you investigate when you have
limited staff?
 What programs are cut when the budget is cut?
Changes of government can profoundly change agencies
15
Changing Agency Policy



Executive branch control
 Replace the agency director
 Use Executive Orders to direct agency policy
Legislature
 Change the enabling law
 Increase or eliminate the funding for agency functions
Citizens
 Petition the agency to change regulations
 Participate in pubic hearings
 Lobby the executive and legislature
 Elect different politicians in the executive and legislature
16
Carrying Out Agency Policy
17
Administrative Procedure Act (APA)


The set of laws in each state and the federal
government that specifies how the agencies in
that jurisdiction carry out basic functions such as
rulemaking, adjudications, and how citizens can
petition the agencies.
 APAs were first adopted post-WWII
The APA only applies if the legislature has not
made special rules for a given agency.
18
Administrative Rules


The Legislature can delegate the power to make
rules to the agency
 Some agencies do not have rulemaking
authority
 Rules cannot exceed the authority in the
agency's enabling legislation or the
Constitution
Properly promulgated rules have the same effect
as statutes
19
Why Make Rules?




Legislatures do not have the expertise or the time to
legislate in technical areas
National standards can be adopted through agency rules,
harmonizing practice across jurisdictions
 National building codes
 CDC guidelines on food sanitation
 Recommendations of the Advisory Committee on
Immunization Practices
Rules give the public and regulated parties guidance
Rules limit the issues that can be reviewed by the courts
20
Public Participation in Rulemaking


Proposed rules must be published for public
comment.
 The agency must take written comments.
 Some states require public hearings if
requested by enough people.
 Federal agencies sometimes use public
hearings on important policy issues.
The agency must review and respond to the
comments.
21
When Agencies Make Decisions Adjudications


How is an adjudication different from a rule?
 Rules apply to everyone in the affected class.
 Adjudications decide questions in individual
cases and only bind those parties.
Parties to an adjudication are entitled to be heard.
 Adjudications may include oral hearings.
 Some adjudications are done on written
documents only.
22
Administrative Law Judge (ALJ)



A fact-finder in the administrative law system.
ALJs usually act as inquisitorial judges and try to
assure that the case is fairly presented and
decided.
ALJ's do not make final decisions but make
recommended rulings to the agency
 Some states give more power to ALJs in the
name of fairness.
 Louisiana gives all the power to the ALJs.
23
ALJs versus Article III Judges




Article III Judges
Protections
 Lifetime tenure
 Cannot reduce salary
 Cannot fire, only impeach
 Cannot discipline
Why do we have these
protections?
How are state judges
different?




ALJs
Civil service protections
 Can be fired
 Can have salary lowered,
but hard to do this
 Can set work standards
and discipline
How are the pressures
different than those on an
Article III judge?
What about contract ALJs that
some states use?
24
How are the expectation for ALJs Different
from Article III Judges?


What does the judge know?
 Administrative law judges (ALJs) may use their own
knowledge of the subject.
 Judges can be disqualified if they know about the
subject.
Conflict of Interests
 ALJs often know the parties and may have worked on
the case.
 Judges in courts cannot know the case or the parties.
25
Agency ALJs v. Central Panel ALJs


All federal and many state ALJs are part of the agency
 Decide the same type of cases all the time
 May be hired for their expertise
 Will develop expertise
Central Panels
 Not part of the agency
 No expertise
 Trades off the value of expertise for "fairness"
26
How are Adjudications different from
Judicial Opinions?






ALJs are primarily fact finders.
ALJs often follow Attorney General Opinions.
Judges decide legal questions on their own.
ALJ decisions are recommendations to the
agency and may be changed by the agency.
An adjudication is not binding in other cases.
Court decisions can be binding on lower courts.
27
Agency Enforcement Tools
28
Permits and Licenses


You have to show you have met the standards set by law
or regulation before you get the license or permit.
 Standards must be clear.
 Must treat all applicants equally.
Conditioned on accepting enforcement standards
 You agree to be bound by the administrative rules.
 You must allow inspections during business hours.
 Licenses and permits can be revoked without a court
order
29
Administrative Searches




License and permit holders may be inspected without a
warrant.
Other inspections may require an administrative warrant.
Requirements for an administrative warrant.
 No probable cause.
 Must show the reason for the search and the locations
Administrative searches cannot be used when a criminal
warrant is necessary.
 Special rules for national security law
30
Inspections are Adjudications





The inspector determines the facts through the
inspection.
The defendant may present its case explaining the
problem during the inspection.
The inspector must provide a written record.
Local government often allows appeals to the city
council.
The courts will defer to the inspector's findings if
the case is appealed to the courts.
31
Administrative Orders

The first step in enforcement is to issue an order
explaining the violation and how to correct it
 Most persons comply with the order
 If the person does not comply, the order proves
that the person was on notice of the problem
 In some cases there may also be a fine for not
complying with the order
32
Enforcement of Agency Orders

If the target of the order does not comply, then the
department must seek a judicial order to force
compliance
 Most agencies don't make arrests or use force
 Some agencies do have police and prosecutors
33
Court Orders



In many cases the agency must ask the court to issue
orders to enforce agency regulations or adjudications
Injunctions
 Orders to prevent an actions, such as operating a
restaurant
 Temporary injunctions
 Permanent injunctions
Personal restriction orders
 These order individuals to refrain from dangerous
behavior
34
The Advisory and Consultative Role

There are some agencies that do not have
enforcement powers
 They do research and education
 They shape policy by funding other agencies or
private projects
35
Public Health Examples


The CDC is a non-enforcement agency
 The CDC's primary role is providing guidance to state
and local health departments
 Most guidance is voluntary, but can be tied to the
receipt of grant funds
State and local health departments
 Departments with enforcement powers also have an
important research and educational role
 This includes epidemiology, health education, and
technical assistance to businesses such as
restaurants
36
Judicial Review
37
Is the Agency Acting Legally?





Does the activity violate the US constitution or
treaties?
Does a state agency activity violate the state
constitution?
Is the agency activity allowed by the agency's
enabling act?
Is the activity prohibited by other laws?
Is the agency following its own rules?
38
The Legislature Sets the Standard for
Judicial Review of Facts




De Novo Review
 The court ignores the agency decision
Review on the Record
 The court uses the record of the agency proceeding but makes
an independent review
Deference to the Agency - Most Common
 The court upholds the agency decision unless it is arbitrary and
capricious
No Review
 In some cases, such as the smallpox compensation fund, the
legislature does not allow judicial review of the agency
decision
39
Courts Defer to Agency Policy Decisions

"It is not the function of a court to determine
whether the public policy that finds expression in
legislation of this order is well or ill conceived.
The judicial function is exhausted with the
discovery that the relation between means and
end is not wholly vain and fanciful, an illusory
pretense. Within the field where men of reason
may reasonably differ, the legislature must have
its way." (Williams v. Mayor of Baltimore, 289 U.S.
36, 42 (1933)
40
Why Do the Courts Defer to the Agency?




Efficiency
 Legislatures do not have the expertise to draft detailed
directions for the health department
 Broad authority lets the agency use its own expertise
Flexibility
 Health departments must deal with new conditions and
emergencies that were not anticipated by the legislature
Speed
 If the courts required specific laws for all actions, it would take
months to years to get laws passed for new problems
Separation of Powers
 The courts should not usurp the executive's power to make
policy.
41
What if the Law is not Clear?


Courts use a standard from an environmental law
case, Chevron v. NRDC, to decide if the agency
action is legal
 The first step is to determine if the law clearly
prohibits the agency action
 If the law would allow the action, then the second
step is to decide if the agency action is reasonable
in light of the objectives of the law
 If the action is reasonable under the statute, then it
is allowed
Is the law ever clear if the court does not like the
agency action?
42
Can the Court Change the Agency
Decision?



If the court finds the agency action is illegal, it can
prevent the agency from acting.
A federal court cannot change an agency ruling,
only block it and send it back to the agency for
reconsideration.
Some state courts can change the agency ruling
and substitute their new ruling.
43
Exhaustion of Remedies


Many agencies provide an internal appeals or
review process for agency decisions
 The courts require that persons who want to
challenge agency actions in court first go
through all the agency appeals
 The court does not require exhaustion of the
agency process if the agency is acting illegally
If the litigant goes directly to court and the court
decides the action was legal, it will be too late to
finish the agency process
44
Public Access to Agency Information
45
Freedom of Information Acts



Provide public access to information held by
agencies
Have exceptions to protect trade secrets and
information that will affect agency function or
public safety
Modified by state and federal privacy laws to
protect personal information
46
Open Meetings Laws



Provide for public attendance at agency
governing body meetings.
Require public notice of meetings
Allow for closed meetings on personnel matters
and other topics such as bids that require secrecy
47