History of Administrative Law
The Administration of Government
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Moving beyond feudalism, all governments are
divided into functional units that behave as
agencies
Administrative law deals with agencies in the
executive branch of the federal government
 State administrative law is broader because
states have multiple executives and less
separation of powers.
The Colonial Period
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Colonial governments had agencies that were
either controlled by the king or by local
governments
Major cities were more powerful entities than
most states
 To this day, old cities have varying degrees of
special legal status
 Much of the regulatory state as urban
Articles of Confederation
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After independence, but before the Constitution,
the states were independent sovereigns
The Articles did not provide for a central
government with binding powers
All agency action was state and local
This did not work very well and almost cost us the
revolutionary war
The Constitutional Allocation of Powers
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The Constitution provided for a national
executive, legislature, and courts with binding
powers over the states
The states were left all powers not allocated to the
federal government
 Police powers
 The federal delegation was flexible, not
enumerated
Administrative Law in the Constitution
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The Constitution did not contemplate a large
federal government
The Constitution established the framework for
separation of powers and basic functions of the
government, but is largely silent on the law of
agencies
This was not important at the time because day to
day government was run by states and cities
Administrative Law in the States
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From the Constitutional period until the Great
Depression, most government was state and local
States have multiple executives and do not have the
same strictures on separation of powers
While some see this period as one of limited regulation,
that is only true at the federal level
The states and cities had extensive regulatory laws and
agencies
Most administrative law is still carried out at the state
level
The Federal Administrative Law System
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While there was federal regulation before the
1930s, the modern regulatory state began with the
Great Depression
The role of the federal government was greatly
expanded to fight World War II
The military did not disband after WW II because
we went into the Cold War
The federal government also did not disband,
beginning the modern regulatory state
Separation of Powers
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Enforcement agencies must be in the executive
branch
Agencies that do not do enforcement may be in
any branch
Most executive branch agencies are under the
control of the President through the appointments
process, as laid out in the Constitution
The Creation of Agencies
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Since the Constitution was silent on agencies, all federal
agencies are rooted in statutes
Congress delegates power to the agency and provides
the money to run the agency.
 Congress cut off money to move Guantanamo
prisoners to US prisons
Congress can abolish agencies, change their powers,
and fund or defund them, subject only to presidential
veto power.
Congress ultimately holds the power, but does not like to
use it for controversial issues.
Independent Agencies
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Congress created independent agencies to reduce the
power of the president.
These are headed by boards whose members are
appointed by the president
 They serve fixed, staggered terms
 They can only be removed for good cause
This limits the ability of a new president to affect the
course of the agency, and prevents political pressure on
sitting agency commissioners.
This is not in the constitution but has been accepted by
the courts.
Agency Powers
The Administrative Procedure Act (APA)
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The Administrative Procedure Act provides the
general framework for the interaction of between
the agency, regulated parties, and the general
public.
The APA is secondary to the statutes that
establish an agency.
 The APA only controls when the enabling act is
silent.
Adjudications
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Congress can give agencies the power to make
factual determinations and issue orders
This determination of facts and enforcement in
individual cases involving specific named parties
is called an adjudication
These can look like trials, complete with
independent judges and rules of evidence
They can also be as informal as inspecting a
restaurant or impounding a bad dog
Rule Making
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Congress can give agencies the power to make rules that
have the same legal effect as statutes
The public is given a chance to see and comment on
these rules before they become final
Rulemaking is very important because most statutes
passed by Congress do not contain sufficient detail to be
enforced without additional agency regulation.
The terms rule and regulation are interchangeable.
The Constitutional Basis for Adjudications
and Regulations
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The constitution does not provide for agency
adjudications or rulemaking
Historically, many courts found these to be
unconstitutional delegation of judicial and legislative
functions
The United States Supreme Court found both
constitutional in the 1930s, more on practical than
jurisprudential grounds.
 Some right wing politicians would like the court to
change this decision, claiming you can only do what is
literally spelled out in the constitution.
The Role of the Courts
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Is the enabling law constitutional?
Are the regulations consistent with the enabling law and
properly promulgated?
Did the agency act in an arbitrary and capricious manner
in an adjudication?
Did the agency violate an individuals constitutional rights
or commit a tort?
Biggest difference from private and criminal law:
 The courts generally defer to the agency.
The Role of Lawyers
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Administrative law has become the single largest
area of legal practice
Explaining regulations and adjudications to
clients
Representing clients in adjudications
Representing clients in rulemakings
Negotiating and problems solving with agencies
Challenging agency actions in court
Example Areas of Agency Practice
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Land use and development
Health care law
Environmental law
Employment, discrimination, and labor law
Energy law
Tax law
Financial regulatory (SEC, FDIC, etc) law
What You Need to Learn
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Administrative law is inquisitorial, not adversarial
Agencies have different rules than courts and you will be
in real trouble if you ever forget that.
Regulations are just as important as statutes
You have to get along with agencies or your clients suffer
Agencies are political and are under the direction of the
president and congress
 Sometimes they are told to do stupid stuff
A lot of agency litigation is just about delaying until the
politics change.