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General Introduction to Administrative Law
Administrative law may be defined as the following: • A body of law (constitutional provisions, statutes, regulations, court decisions, executive orders, directives, etc.) that: o Regulates the procedures agencies use in making rules and related policy decisions; o Controls the exercise of agency authority to enforce laws and regulations, and; o Governs the extent to which administration is open to public scrutiny (required transparency in agency decisions and processes). • A process that provides for review of agency decisions to ensure those decisions respect the requirements identified above.
The first bullet identified immediate above suggests administrative law is, in part, a way of relating to other areas of law. This suggestion means administrative law is not solely a category of law in itself, but rather a way of understanding how public entities that administer government are controlled by legal frameworks. Consider the fact that much of our government is premised on interactions with the public through administrative units: the Social Security Administration, Internal Revenue Service, Food and Drug Administration, Environmental Protection Agency, Immigration and Customs Enforcement, Federal Bureau of Investigation, etc. All of these ‘units’ of government are administrative entities, meaning they administer government benefits and obligations. The basis for most of these benefits and obligations comes from laws that are passed by Congress (the legislature). Congress does not have the capacity to personally implement all of policy goals identified in laws it passes (nor does it have the expertise in many instances), so it delegates the responsibility for implementing policy goals contained in passed legislation to administrative bodies (under the executive branch of government).1 The degree to which agencies can act is bounded by the powers delegated by Congress; agencies can only act within the powers granted to them, primarily through the laws that delegate those powers to the agency. A conceptual representation of these limits through a continuum of congressional power is provided here:
For example, Congress has the power to tax the populace under the United States Constitution. Congress has acted upon this power by passing a law (statute) for taxing purposes, the Internal Revenue Code. This law sets forth the basis of taxing various sources of income (wages, investment, etc.) from different entities (individuals, corporations, etc.), and includes a process for collecting taxes, monitoring collections, identifying potential abuses of the law, and seeking enforcement of the provisions of the law. Congress does not do these activities itself, but rather delegates the responsibility to an administrative unit of government created specifically for implementing the tax code. This administrative unit is the Internal Revenue Service, or IRS.
As noted in the figure, there is a set limit on the amount of authority Congress may grant to agencies. For example, Congress cannot grant authority that exceeds its powers granted by the United States Constitution (separation of powers doctrine)2; the black line in the figure represents the entire amount of space in which Congress may legally authorize agency action. The green line represents an actual delegation of congressional authority to an agency. In this case Congress has passed a statute that delegates authority to an administrative entity. The extent of authority granted to the agency is bound by the green line; the agency cannot act beyond the green line in implementing the goals of the statute. The red line represents potential congressional authority that was not granted to the agency in the particular statutory delegation. For example, Congress may have the authority to grant the agency Powers A and B to meet a policy goal, but may choose to only grant the agency Power A under the statute to meet the goal; this is a choice by Congress bounded in the statutory language expressing the delegation of authority to the agency.
The limitations on congressional powers will be explained in greater detail later. However, as an example, we certainly know Congress cannot pass laws that violate basic constitutional protections like a law that requires individuals suspected of a crime to mandatorily provide selfincriminating information to law enforcement. Such a law would violate the Fifth Amendment right to protect oneself from self-incrimination (one can always voluntarily provide such statements to law enforcement, but they cannot be forced to do so).
Now back to the definition of administrative law. Subparts of the first bullet and the second bullet above identify that administrative law is also a discrete area of law in itself. Thus, administrative law is both a way of understanding the process of administering government services and a discrete set of rules that regulate how administrative units go about doing their work. The main law that regulates how administrative units go about doing their work is the Administrative Procedures Act, or APA. The APA is a federal law (copied in many states) that identifies the rules by which administrative entities go about doing their work. These rules are meant to ensure these agencies are consistent, fair, and open in the way they go about implementing their statutory responsibilities. In summary, the APA does this by first identifying the powers granted to agencies in general, and then identifying the rules (limitations) by which agencies can carry out those powers. Agency Powers: • Power to ‘Legislate’ (quasi-legislative powers): Agencies have the power to create regulations, or rules, that are official statements about how the agency is going about implementing its statutory obligations. These rules must be within the powers granted to the agency by Congress. We can know the limits of this power by looking to the statute and its delegation of responsibilities to the agency. For example, the IRS is empowered to make rules for the collection and enforcement of tax law. However, the IRS is not empowered to under tax laws to create new taxes; creating taxes is the purview of Congress and this power has not been delegated to an agency (and likely cannot under separation of power limitations). Power to ‘Administer’ (quasi-executive powers): In order to carry out its delegated functions, agencies often have to engage in executive branch-type functions that include, primarily, the power the enforce its responsibilities under statutory delegation. This includes the power to investigate, charge, and prosecute those it believes are violating the rules it has created to carry out a statutory goal. For example, the IRS has the power to audit your personal tax return to determine if you have properly identified all of your tax obligations. If it feels you have not done so the IRS can ‘audit’ you to investigate whether or not you have complied with tax law. If it believes you have acted fraudulently, then the IRS can bring ‘charges’ against you to determine the validity of your actions. Power to ‘Adjudicate’ (quasi-judicial powers): Finally, agencies have the power to act as a finder of fact by creating tribunal settings in which evidence is presented to help the agency in carrying out its statutory obligations. For example, the IRS has the power to create ‘trial-like’ settings where evidence is presented before it to determine whether or not an individual has complied with federal tax law.
Agency Rules: • Rulemaking Process: Agencies must go through a specific set of procedures when making regulations (rules) that are intended to implement the policy goals of a law that allows for the development of such rules by delegating this power to
the agency. Assuming the agency has the power to make the rule (assuming the agency is acting within the scope of the delegation from Congress), the APA requires the agency follow specific procedures in creating the rule. These procedures are laid out in the statutory provisions of the APA itself. The purpose of the rules are to ensure the process engaged in for the rulemaking is transparent to the public; a key to transparency is following notice and comment procedures where the proposed rule is made available for review and comments from the public. The main way this transparent process of rulemaking is done today is through informal rulemaking procedures identified by the APA. For more controversial rules, the APA provides the option of formal rulemaking procedures that are more substantial than informal procedures, including a process that acts more like a judicial trial where evidence is presented and ‘cross-examined’ to discuss the pros and cons of a proposed rule. • Enforcement of Rules: Agencies must follow procedural due process requirements under the APA (based in constitutional law requirements) when they are taking action against an individual (or other recognized entity) based on enforcement of a rule. For example, if the IRS audits someone they expect to be evading tax obligations, the ‘audit’ must include due process; a procedure that allows the individual to: o Receive the charges against them; o Examine the evidence against them; o Cross-examine (challenge) the evidence against them; and o Present evidence in their defense. So, agencies are interesting entities. They have the ability to act in all areas of government, including quasi-legislative, -executive, and -judicial roles. However, these roles are not absolute. Agency conduct is bounded in a number of ways. • Agencies are limited through the process of legal doctrines that emanate from our framework of laws in the United States. For example, agencies cannot go beyond the powers delegated to them by Congress under a particular statute that grants them power; the delegation ‘bounds’ agency power to the extent of the delegation itself (as noted in the figure above and explained in greater detail later). Agencies, like Congress, are also limited by constitutional constraints. No agency can take an action that violates the constitution and is thus found to be unconstitutional. The same holds true for Congress; it cannot pass a law that is facially unconstitutional (like a law segregating humans based on race) or asapplied unconstitutional (like a law that ends up being applied in a way that segregates humans based on race). Thus, agencies cannot implement a statutory goal in a way that violates constitutional protections. This can include substantive violations (the rule establishes a constitutional violation) and procedural violations (the way the rule is being followed results in a violation of due process rights).
The Administrative Procedures Act (APA) is a statute that bounds agency conduct by requiring certain processes be followed. Agencies must follow the rulemaking process and enforcement of rules established within the APA.
Understanding how agencies are empowered to act, and also the limitations on their powers, is the foundation of administrative law. Once you have this understanding down you are in a prime position to fully begin to understand public policy within the context of the legal frameworks that define the implementation of policy directives once they have been legitimized by turning policy proposals into law. In addition, knowing the legal frameworks influence on administering government is essential to effective policy development, management, and evaluation. END OF SECTION.
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