Chapter One
State and Federal Administrative Law,
2nd ed. 1998
Ripped from the Headlines
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Who should sort out the power grid problems?
What are the conflicting issues?
 What is the trade off between price and reliability?
 Who must pay?
What is the role of the Federal Energy Regulatory
Commission (FERC)?
What about the states?
What about deregulation?
Virus that Makes Plants Freeze Resistant
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Assume this would let you grow oranges in LA
Industry wants to test it
The citizens are scared that it will spread and no
one will buy their crops
Jeremy Rifkin is going to picket so you will get
national publicity
You really do not know the risks, but it might
really be a good think because you cannot grow
sugar much longer
What does the Governor do?
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What agency should be in charge?
What are the political issues you have to balance?
Who is going to sue you if you allow the tests?
Who is going to sue you if you do not allow the
tests?
What is the worst threat?
Introduction to Administrative Law
The Two Core Agency Functions
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Regulation
 This is similar to law enforcement
 Most agency enforcement is civil
 Agencies can refer to the Department of Justice (DOJ)
for criminal prosecutions
Beneficence
 Social Security
 Medicare, Medicaid
 Other benefit programs are run by agencies
Where do Agencies Come From?
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Not in the Constitution
Formed when the Legislature passes a law that sets them
up
 Organic Act
 Enabling Act
 Agencies only have the Powers they are Granted
Every Branch of Government is an Agency
 DOJ
 Courts
 Military
Agency Powers
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Rulemaking
Adjudication
Permits
Licenses
Inspections
Publicity
Advantages of Agencies
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Flexible
 Can respond to new threats
 Can change rules without involving the legislature
Non-Adversarial
 Does not depend on prowess and resources of the
private lawyers
 Can balance societal needs as well as those of parties
 Can use its own expertise
Disadvantages of Agencies
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Agency capture
 Agency is controlled by interest groups or regulated
parties
 Hard to avoid if the regulated parties have all the
expertise
Depends on the expertise of the agency personnel and
directors
 Many directors are political appointments with no
expertise
 Special Problem in Public Health and Health Care at
the State Level
What are the alternatives to agency regulation?
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Criminal Law
 Expensive because of Due Process
Requirements
 Demands Specific Prior Law (Homeland
Security Notwithstanding)
Private Litigation
 Impossible to predict what is correct behavior
 Penalties out of line with harm
How is Administrative law different from
first year courses?
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Not litigation based
 Based on non-adversarial process
 Not a common law system
 More like a code system
Must learn to work with the agencies through time
 Litigation is one shot
 Agency practice is ongoing with both clients
and regulators
State and Federal Administrative - Key
Differences
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Different separation of powers issues
Multiple executives
 AG and Governor
 Other Independently Elected Agency Heads
Some unicameral legislatures
Many states do not defer as much to agency
LA really limits agency power
Why is the New Deal Important in
Administrative Law?
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Beginning of Modern Agency Government
Prior to the New Deal, Few Federal Agencies
 FCC - Antitrust
Most Regulation was done by States
 Very Active in the 1800s
 Reined in by the United States Supreme Court
for Interfering with Interstate Commerce
Big Growth was During World War II
Administrative Procedure Acts
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Code of Procedure and Bill of Rights for Agency
Actions
When was the Federal APA passed?
 1946, after 10 years of fighting
 It was opposed by Republicans and Southern
Democrats who opposed the New Deal
Provides uniform rules for agency practice
Does the APA completely define the
procedures for every agency?
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Most agencies have specific procedures in their
organic acts, and some are very different from the
APA
The APA controls when the organic act is silent
States have their own versions of the APA
 When you represent a client before an agency,
you must know the state APA
 Local government agencies are often exempt
from the APA
Public Information Laws
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Freedom of Information Acts (FOIA)
 The federal government and the states have law FOIA
laws that allow access to information held by agencies
 Anyone can get access and you do not need a reason
 Exceptions to protect privacy and agency functions
Open Meetings Laws
 There are federal and state laws that require public
access to meetings
 Failure to comply can make the agency action void in
some cases