Module 01
Learning Objectives for the Course
Administrative law literacy
Key cases
Recognize administrative law issues
How dealing with agencies is different from litigation
How agencies are and must be political
How cost-benefit analysis is at the core of regulatory decisionmaking
How the unintended consequences of regulation can outweigh the benefits of the
regulation.
A deep look at a few representative regulatory problems.
Learning Objectives for this Material
This material is intended to introduce the student to the modern context of
administrative law.
There are no analytical standards for this material.
Students should learn:
That administrative law has a limited constitutional mandate.
That the political support for the administrative state is cyclical through time.
That the states differ significantly in their support for regulation and the power
of the state.
The basics of separation of power in the states and federal government.
The Administrative Procedure Act (APA) establishes basic agency
procedures.
Agencies have both legislative and judicial functions.
Data collection and surveillance is a major function of government.
The courts are deferential to agency decisions.
There are special limitations and procedures for suing agencies for damages.
What is Administrative Law?
What does Administrative Law Deal With?
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
Administrative Law Practice
Areas of Administrative Law Practice
Tax
Environmental law
Securities law
Land use law
Health law
Energy law
Federalism
Most government, and thus most administrative law, is state and local
Many federal programs, such as environmental regulation, depend on state
level enforcement and local standards.
Who are your clients?
Federal, state, and local agencies.
Governmental bodies dealing with agencies.
LSU dealing with FEMA
CPRA dealing with the Corps
Private individuals and businesses regulated by agencies.
NGOs representing private interests before agencies
NGOs representing public interests before agencies.
Law Practice Reasons to Study Administrative Law
Some is on the Louisiana bar and more is on out of state bars
Procedural due process
Standing
Most lawyers do some administrative practice
Tort lawyers who want to sue an agency.
Land development lawyers need permits
Banking lawyers must meet FDIC and other regs
More lawyer do primary administrative law practice than any other type of
practice.
Fundamentally different approach than non-agency courses.
It is a malpractice trap if you do not recognize adlaw problems.
History of Administrative Law
The Colonial Period
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
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
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
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
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
Environmental law
Medicaid
The Great Depression and the New Deal
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
The Social Security Insurance System was formed to insure a pension for all
working Americans.
Retirement age was 65
Average life expectancy was 59.7
Average life expectancy today – 78.9
If you reach 65, you will, on average, live to 84.3
Jurisprudence Note - This lead to the constitutional fight over the delegation
doctrine.
World War II and its aftermath
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
Social Security Disability passed in 1956
Modern Supreme Court admistrative law jurisprudence starts in the 1960s
The Great Society and the 1970s
Medicare – medical care for the elderly as part of Social Security – 1965
100% federal program
Medicaid – medical care for the poor – 1965
Shared state federal program
Mostly pays for nursing home care for the elderly
The modern environmental laws – 1969-1976
CWA
CAI
NEPA
CERCLA (Superfund) 1980
These were all bi-partisan, many by huge margins
The Unwinding of Faith in Government
Vietnam War, Pentagon Papers, Watergate and the Nixon resignation, The
Church Committee
By 1976, the federal government had been discredited, a president forced
from office, and a congress of reformers elected.
By 1980, stagflation, the Iranian hostage crisis, and the failure of reform, led
to election of Regan and the mantra that government is the problem.
Politicians run against government.
The Modern Administrative State
Federal
The Congress no longer provides effective direction to federal agencies.
Jurisprudential note – this spawns increasing litigation
Agency and presidential interpretation of statutes as agencies deal with
new situations under laws that have not kept pace with society
Attempts to run agencies with vacant positions because the Senate will not
approve appointments to fill vacancies.
State and local – laboratory of the states
Most of the most prosperous states have strong state regulatory systems
and relatively high benefits and taxes
The poorest states that are most dependent on federal support are the most
hostile to government and taxes.
Your average citizen
Does not understand the role of government in daily life
Wants the benefits of clean water, clean air, and sanitary food, but does
not like government regulation.
Keep your government hands off my Medicare!
Organization of the Government
Legislative Branch
Is there a head of Congress?
How much control do the heads exercise?
What Does Congress Do?
Judicial Branch
Is there a head of the courts?
How much control does the head exercise?
What do the Courts do?
Executive Branch
Who heads the executive branch?
What is the domestic role of the executive branch?
How is this different in Louisiana and other states?
The Creation of Agencies
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
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 Covered in this Course
The Administrative Procedure Act (APA)
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/adlaw/index.htm
The APA is secondary to the statutes that establish an agency.
The APA only controls when the enabling act is silent.
Rulemaking
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
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
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 Information held by Agencies
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
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
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.