Introduction to Administrative Law Fall 2019

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

Areas of Administrative Law Practice Tax Environmental and climate change law Securities law Land use law Health law Energy law Etc.

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.

Reasons to Study Administrative Law Some is on the Louisiana bar, hiding as conlaw Procedural due process The majority of lawyers do admistrative practice some or most of the time. Malpractice trap if you do not recognize adlaw problems. Fundamentally different from non-agency courses.

Agencies are the Vehicle for Carrying out Political Policy Enforcement policy When does a business get a second chance and when do they get closed for violating regulations? When do you use quarantine and isolation? Who do you get to shoot? Fiscal policy Which diseases do you investigate when you have limited staff? What programs are cut when the budget is cut? Changes of government can profoundly change agencies. Never before to the extent of the Trump administration.

Why Do We Talk about Policy in Adlaw? 90% of private administrative law practice is working with the agency for your client, not suing the agency. 90% of the time of agency lawyers is spent outside of litigation. Agency adjudications Rulemaking Problem solving with regulated parties. In many situations you are arguing policy because the statute or regulation is ambiguous.

Why Do We Talk about Politics in Adlaw? Admistrative agencies are the vehicle for carrying out executive and legislative policy. Elections change government by changing the direction of agencies. High level agency personnel are appointed based on their political views because that is how we assert pollical control over agencies. Except in the rare cases where Congress writes a specific and unambiguous statute, agency decisions always have a policy/political component.

Class Materials and Philosophy This is not a casebook course such as Constitutional law, where you extract nuggets of jurisprudence from massively edited cases. You have a plain language text with problems to read to learn the basic concepts. It will be supplemented with notes to help you focus your reading. We will read full text cases, briefs, agency documents, and articles for class discussion. The objective is for you to learn the basics of administrative law practice and how to read administrative law materials. We will study the core areas of administrative law. There is not enough time in one course to comprehensively cover the subject. I reserve the right to use class participation points.

Study and Discussion Aids PowerPoint slides These will be used to present background material on regulatory problems, special legal areas and class discussion questions. They are not meant to be a summary of the course or Cliff’s Notes. Study Guides These take various forms. Some are guides to the cases, to focus you reading of the case. Some contain additional class notes to help orient you so we can have a higher-level discussion in class. Quizzes We will use online quizzes administered through Moodle for periodic evaluations so you will know how you are doing.

The Limitations of this Course In most countries administrative law is a required, multiple course sequence. Most US law school curricula are stuck in the 1950s. I am compressing or eliminating the coverage of areas you have seen in constitutional law or that are mostly of academic, rather than practice interest. This year I am focusing on the key issues needed to practice administrative law and to understand administrative policy making.

Learning Objectives for the Course Develop administrative law literacy Learn key cases and Administrative Procedure Act (APA) sections. Learn to spot administrative law issues Learn to how to deal with agencies Learn about decisionmaking under uncertainty Cost-benefit analysis Unintended consequences of regulatory decisions Scientific uncertainty about outcomes Take a hard look at a few major regulatory problems.

History of Administrative Law

Administrative Law in the Constitution Origin intent A small federal government with limited powers for a isolated country with a limited role in the world. The primary role of the federal government is referring fights among the states and coordinating international trade and national defense. Day to day governance would be done by the states The Constitution is largely silent on the law of agencies.

Administrative Law in the States until the Great Depression The states and cities had extensive regulatory laws and agencies from the colonial period to the 1930s, when the feds began to have a larger role. While some see this period as one of limited regulation, that is only true at the federal level. The states were aggressive in some areas of regulation and some of these were very intrusive. Most administrative law (most government) is still carried out at the state and local level.

The Great Depression 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 to prevent another crash and for public safety. FDIC, SEC, FAA This lead to the constitutional fight over the nondelegation doctrine – the right of congress to give its powers to agencies under the president.

World War II The role of the federal government was greatly expanded to fight World War II Took over private business for the war effort. Intruded in private life (rationing, etc.) for the war 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 Court starts to work out the proper role of agencies. This is still happening, as the court reexamines basic administrative law doctrine as politics shift on the court.

Current Controversies over Agency Power Since the government acts through agencies, small government advocates focus on constitutional attacks on agencies. If the Court abandons its pragmatic approach to administrative law, it could read the constitution to dramatically narrow agency power. At the same time, several justices appear comfortable with expansive presidential power, which is the last thing the founders would have wanted, and is inconsistent with limiting agency power.

The Modern Administrative State

Separation of Powers – Federal Government The US Governments is divided Into three branches: Legislative Branch Executive Branch Judicial Branch The executive branch is headed by the president. The president and the vice president are the only nationwide office holders. Each branch has unique powers. Each branch was intended to keep the others in check. The founders did not anticipate political parties.

Separation of Powers – State Government State governments are also divided Into three branches: Legislative Branch Executive Branch Judicial Branch The executive branch in state governments is divided among several statewide office holders with powers independent of the governor.

Hierarchy of Laws The United States Constitution is the ultimate source of law, preempting conflicting state and federal laws. In theory, treaties prevail over conflicting state and federal laws, but congress is reluctant to ratify treaties that preempt domestic law. Unless a treaty has also been enacted into statutes, the president can abrogate it without congressional approval. Most agreements, such as the Paris Climate Accord are executive agreements, not ratified by Congress. Federal law preempts conflicting state laws, subject to constitutional protections of state powers.

Agencies are Established by the Legislature The agency enabling statute establishes the agency's: Powers and Duties Organization Funding – easiest to change Standards for the judicial review of the agency's actions Some state agencies are established by the state constitution or constitutional amendments.

Agencies only have the Power Given by the Legislature General Grant of Power Public health laws Specific Grants of Power Narrowly drawn statutes such as the Americans with Disabilities 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. The president has national security powers directly from the constitution, subject to congressional control through funding and impeachment.

Agencies and Separation of Powers The president is charged with carrying out the law – doing enforcement. Most agencies are enforcement agencies and are part of the Executive branch. Enforcement can include orders to comply with the law, fines, and criminal prosecution. Agencies that do not do enforcement can be controlled by Congress or the Courts. Congressional budget office

Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Recess Appointments Article 2, Section 2: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Why was this included? The legal questions in the recent cases Can the Senate stay in session while the members are at home? Does the vacancy have to occur during the recess?

Congressional Control of Appointments Advise and consent for principle officers. Designate who is a principle officer requiring Senate confirmation by legislation. Set terms of office and qualifications for principle officers. Impeachment.

Terms of Office Create Independent Agencies The Appointments Clause is silent on removal and this has been interpreted by the Court to mean that these are appointments at will. The ultimate presidential control of agencies is through firing and replacing their directors. A term of office is created by limiting the president’s right to fire an appointee to good cause during the term of office. The agency is said to be independent because the head can refuse to carry out presidential orders and not be fired.

Why have Independent Agencies? Congress has created independent agencies to regulate areas where it determines that it is important to give the regulators some isolation from political control. For example, the independence of the SEC, FDIC, and the Federal Reserve are seen as essential to maintaining confidence in the financial system. Trump’s criticism of the Fed is unprecedented in modern times.

Typical Characteristics of an Independent Agency (1) they are headed by multi-member groups, rather than a single agency head; (2) no more than a simple majority of these members may come from one political party; (3) the members of the group have fixed, staggered terms, so that their terms do not expire at the same time; and (4) they can only be removed from their positions for ‘‘cause”

How Independent are Independent Agencies? The President usually gets to pick the chair from among the existing commissioners. Does not control policy, but can influence what issues are addressed Not subject to OIRA (covered later) Can be subjected to other executive controls as determined by Congress. Presidential influence increases as the terms expire and the president appoints new members.

Could the president fire the Fed Chair? In theory the president could state a cause and fire a member of a commission, but it has not happened – yet. It has not been an issue because they get hounded out of office if there is cause. If the president were to invoke a for-cause firing, the United States Supreme Court would have to determine what constitutes proper cause. It is an open question whether independent agencies would survive such a challenge.

Current Controversies in Agency Independence Nested boards This is when inferior officers, appointed by principle officers with terms of office are given terms of office. The result is a double layer of protection. There is case law finding that this is too great a limitation on presidential removal. Are administrative law judges employees or officers? This is still being litigated.

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 DOJ, police departments, and courts Agencies for basic governance Not agencies for their substantive criminal law work. Prisons are agencies.

Removal Wrap Up What if the statute says an officer serves until removed for good cause, but does not specify a term of office? Think about what would happen if they could not be removed except for cause. Remember civil service Can the head of a department remove inferior officers he has appointed? Unless Congress creates a term of office, if you appoint someone, you can fire them. Terms of office for agency heads create independent agencies These agencies are still executive branch agencies

Skipped Material While you should read the material on independent counsels and establishing the difference between a principle and inferior office, we will not cover these and they will not be on the exam.

Agency Practice Topics Covered in this Class

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.

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 be as informal as inspecting a restaurant or processing a FAFSA form

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. The Courts have made rulemaking a slow, deliberate process that puts the brakes on quick agency policy changes.

Judicial Review 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 over Regulatory Actions Learn how constitutional standing applies to suing agencies. Learn about exhaustion of remedies Learn about how the standards for judicial review of agency decisionmaking differ from private and criminal litigation Learn about mandamus and injunctions as remedies against agencies.

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. The Carpenter case on cell phone location maybe an indication that the court will broaden warrant requirements.

Access to Agency Information Freedom of Information Act What is available? When can the government withhold information? What is the standard for judicial review? The Privacy Act Can the public get personal information about you? Open Meeting Act

Suing Agencies for Torts Learn the procedure and limits on the government for tort damages caused by agencies. Sovereign immunity Tort claims acts and discretionary authority Bivens and 42 USC 1983 Statutory immunity such as the Flood Control Act of 1928.

Executive Power

Vesting and Take Care Clauses “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.” Art. II, § 3. Together, these define the source of the president's domestic powers

Executive Orders Orders from the President to agency heads Can be ignored by independent agencies Sets policy on discretionary decisions Not defined by the Constitution or legislation

Types of Executive Orders Domestic Policy Orders http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm Domestic Policy Orders http://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders National Security Orders http://www.fas.org/irp/offdocs/direct.htm

Limits on Executive Orders Cannot change budgetary allocations Cannot change statutory duties The Gag Rule controversy (Rust v. Sullivan, 500 U.S. 173 (1991) Cannot abrogate due process No directing the result of an adjudication Cannot legislate President cannot make binding regulations by Executive Order Cannot use them to change policy for Independent Agencies

The Unitary Executive Do all of the executive branch powers belong to the president him/herself? Can the president tell the AG how to fire Mueller? Can he only fire the AG? Why does it matter whether the president has the power or the secretary has the power, subject to being fired? How does the Appointments Clause fit into this analysis? If it is the president's power, why should the Senate care who he appoints? What if the Senate will not confirm a secretary? What is the president just uses Acting secretaries?