Introduction to Administrative Law
Spring 2014
What does Administrative Law Deal With?
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The formation, staffing, and funding of agencies.
Rulemaking (legislation) by agencies
Adjudications (trials) by agencies
Judicial review of agency action
Access to private information by agencies
Public access to agency information
Agency liability
Law Practice Reasons to Study
Administrative Law
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Some is on the bar
 Procedural due process and standing
The majority of lawyers do admistrative practice
some or most of the time.
 Malpractice trap if you do not recognize adlaw
problems.
Fundamentally different approach than nonagency courses.
Administrative Law Practice
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Work for agencies.
Counsel clients how to operate within regulations.
Represent clients before agencies.
Litigate against agencies.
Represent clients in the development of agency
policy and regulations.
Areas of Administrative Law Practice
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Tax
Environmental law
Securities law
Land use law
Health law
Energy law
Etc.
Learning Objectives for the Course
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Administrative law literacy
Key cases
Recognize administrative law issues
How to deal with agencies
How agencies are and must be political
Cost-benefit analysis
Unintended consequences of regulatory decisions
A hard look at a few regulatory problems.
Course Materials
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The E&E book
 Basic intro to administrative law – read it all
Full text cases in specific regulatory areas.
 Learn to sort out issues in real cases
 Learn to deal with the underlying facts
Regulatory materials
 What do regulatory documents look like?
 How do you read long documents?
Class discussion of issues that come up in the news.
Study and Discussion Aids
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PowerPoint slides
 Study questions to aid class discussion, not a canned lecture on the
course nor a summary of the material.
 They are study aids, not substitutes for reading.
Exam study questions
 The exam will be based on these questions
 Simple, clear, straightforward
 There may also be quizzes
Class discussion
 Elucidating the text.
 Better understanding of agency function and how agencies execute
policy.
 I reserve the right to use participation points.
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 more complex
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
 Boards of health
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 was urban
Articles of Confederation
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After independence, but before the Constitution,
the states were independent sovereigns
All agency action was state and local
 The Articles did not provide for a central
government with binding powers
 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 (most traditional state and local
regulation)
 The 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
Original intent analysis does not work in adlaw
Administrative Law in the States until the
New Deal
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The states and cities had extensive regulatory laws and
agencies
 While some see this period as one of limited
regulation, that is only true at the federal level
Most administrative law (most government) is still
carried out at the state level
 Most federal regulatory programs are shared
federalism
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Environmental law
Medicaid
The Great Depression
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While there was federal regulation before the
1930s, the modern regulatory state began with the
Great Depression.
Federal agencies were formed to provide jobs
 WPA
Agencies were formed or strengthened to regulate
business
 FDIC, SEC
This lead to the constitutional fight over the
delegation doctrine.
World War II
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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
Modern Supreme Court admistrative law
jurisprudence starts in the 1960s
Organization of the Government
Legislative Branch
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Is there a head of Congress?
How much control do the heads exercise?
What Does Congress Do?
Judicial Branch
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Is there a head of the courts?
How much control does the head exercise?
What do the Courts do?
Executive Branch
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Who heads the executive branch?
What is the domestic role of the executive
branch?
How is this different in Louisiana?
The Creation of Agencies
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Since the Constitution is mostly silent on agencies,
federal agency powers are rooted in statutes
Congress delegates power to the agency and provides
the money to run the agency.
Congress can abolish agencies, change their powers,
and fund or defund them, subject only to presidential
veto power.
 Congress cut off money to move Guantanamo
prisoners to US prisons
Congress ultimately holds the power in government
 Congress has political trouble using the power
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
Executive branch agencies are under the control
of the President through the appointments
process, as laid out in the Constitution
 The president has more attenuated control of
independent agencies
Agency Practice
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.
 http://biotech.law.lsu.edu/Courses/study_aids/adla
w/index.htm
The APA is secondary to the statutes that establish
an agency.
 The APA only controls when the enabling act is
silent.
Rulemaking
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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.
 Proposed rules are published in the Federal Register
 Final rules are codified in the Code of Federal Regulations.
Rulemaking is very important because most statutes passed
by Congress do not contain sufficient detail to be enforced
without additional agency rulemaking.
 The terms rule and regulation are interchangeable.
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
The Collection of Data by Agencies
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What types of data does the government collect?
 IRS? - NSA?- HHS?
Reporting duties
Administrative subpoenas
Administrative searches
 Not based on probable cause
 No exclusionary rule
Little expectation of privacy unless provided for by a
federal law or common law privilege.
Access to Agency Information
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Freedom of Information Act
 What is available?
 When can the government withhold
information?
 What is the standard for judicial review?
The Privacy Act
Open Meeting Act
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 individual’s constitutional
rights?
Biggest difference from private and criminal law:
 The courts generally defer to the agency.
Suing Agencies for Torts
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Learn about exhaustion of remedies
Learn about how the standards for judicial review of
agency decisionmaking differ from private and
criminal litigation
Learn the procedure and limits on the government for
damages caused by agencies
 Sovereign immunity
 Tort claims acts
 Statutory immunity such as the Flood Control Act
of 1928.