Professional Documents
Culture Documents
Spring 2016
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
Law Practice Reasons to Study
Administrative Law
Some is on the bar
Procedural due process and standing
problems.
Fundamentally different approach than non-agency
courses.
Administrative Law Practice
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
Tax
Environmental law
Securities law
Land use law
Health law
Energy law
Etc.
The Approach in this Course
This is not a first year course.
You will be expected to learn basic material on
Rulemaking
You have to know the law, but you also have to know
how the agency functions.
Course Materials
The E&E book
Basic intro to administrative law – read it all
Regulatory materials
What do regulatory documents look like?
questions.
They are not meant to be a summary of the course.
Modules
These are meant to be basic class notes to help you learn the
exam.
Learning Objectives for the Course
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.
History of Administrative Law
The Administration of Government
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
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
effort.
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
Post World War II
Modern administrative law starts with the
Administrative Procedure Act in 1946.
Modern Supreme Court admistrative law
jurisprudence starts in the 1960s as the regulations
increase and Court starts to work out the proper role
of agencies.
The Modern Administrative State
Separation of Powers – Federal Government
The US Governments is divided Into three branches:
Legislative Branch
Executive Branch
Judicial Branch
Executive Branch
Judicial Branch
24
Agencies are Established by the Legislature
The agency enabling statute establishes the agency's:
Powers and Duties
Organization
Funding
Actions
Some state agencies are established by the state
constitution or constitutional amendments.
25
Agencies only have the Power Given by the
Legislature
General Grant of Power
Public health laws
Dishabilles Act.
Contingent Grants of Power.
Laws that are triggered by a declaration of a state of
emergency.
The Legislature cannot grant the agency more power
than the legislature itself can exercise
26
Executive Control in the Federal Government
All enforcement agencies are in the Executive branch.
Enforcement can include orders to comply with the
27
Executive Control in the States
States have several elected executives that control
agencies, not a single head like the president.
The governor controls most agencies.
elected heads.
Some states even allow legislative agencies with
enforcement powers
28
Legislative Oversight of Agency
Appointments
The US Constitution provides that the senate must
approve the appointment of officers of the United
States.
The heads of most executive branch agencies, and
some of their subordinates, are officers of the United
States and thus must be approved by the Senate.
The Senate can use this to threaten agencies when
the president is from another party.
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Removal of Agency Heads
Most agency directors in the state and federal system serve at
the pleasure of the executive
This is a major source of executive control over agencies
30
Non-Agencies and Administrative Law
The President is not an agency.
The military is a quasi-agency
An agency for many organizational and procurement
purposes
Not an agency for military actions
31
Agencies are the Vehicle for Carrying out
Political Policy
Enforcement policy
When does a business get a second chance and when do
Fiscal policy
Which diseases do you investigate when you have limited
staff?
What programs are cut when the budget is cut?
Legislature
Change the enabling law
Citizens
Petition the agency to change regulations
33
Agency Practice
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/in
dex.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
Reporting duties
Administrative subpoenas
Administrative searches
Not based on probable cause
No exclusionary rule
1928.