Administrative Law Advanced Legal Research Winter 2006

Legislative Branch Judicial Branch Executive Branch Administrative Agencies Judicial Functions Legislative Functions Executive Functions investigation enforcement rulemaking adjudicative hearings

“An administrative agency is a governmental authority, other than a court and other than a legislative body, that affects the rights of private parties through either adjudication, rulemaking, investigating, prosecuting, negotiating, settling, or informally acting.” Kenneth Culp Davis, Administrative Law and Government 6 (2d Ed. 1975) Definition

BIRTH OF ADMINISTRATIVE LAW Franklin D. Roosevelt Began about a century ago Greatly expanded during the New Deal. Economic situation required rapid governmental action and flexible solutions. Amount/complexity of legislation generated required specialized oversight that Congress could not provide. Next wave – 60s and 70s on environment and health

Administrative Agency Strengths Agency deals with limited area of public policy and can develop expertise Can hire people with skills and talents needed for specific situations. Techniques and decision-making can be tailored to meet the problem at hand. Action can be taken quickly.

Administrative Agency Weaknesses Administrative flexibility may simply mask unchecked power by unelected officials. Continued exposure to the same issues may lead to rigidity and ineffectiveness. Potential for overgrown bureaucracy and burdensome regulations.

ENABLING LEGISLATION Congress creates the agency. Grants and enumerates the agency powers. Delegates rulemaking and decision-making authority to the agency. Agency actions and powers may not exceed the delegated authority.

Agency Powers Must Be Based on Proper Delegation Article I, §1, of the Constitution vests ”all legislative powers in the Congress.” Article 11 on Executive Branch: “[President] shall take care that the law be faithfully executed.” Courts have used this clause to limit congressional delegation of power to executive agencies. This text permits no delegation of those powers. When Congress confers decision-making authority on agencies it must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr. & Co. v. U.S., 276 U.S. 394 (1928)

Types of Administrative Actions Rules and Regulations Orders Licenses Advisory Opinions Decisions

Early Years of Agencies No official source for publication of rules and regulations of federal agencies existed. Agencies were not required to make their rules and regulations available to the public. This raised due process problems.

PANAMA REFINING CO. v. RYAN, 293 U.S. 388 (1935) “The Hot Oil Case” o Court invalidated agency’s enabling act because “Congress has declared no policy, has established no standard, has laid down no rule.” o Regulation at issue had been repealed prior to defendant’s prosecution, repeal was not discovered until the case reached the Supreme Court. o Led to legislation requiring that all federal agency regulations be published.

Federal Register Act - any regulation with general applicability and legal effect must be published in the Federal Register (Ch. 417, 49 Stat. 500 (1935)) Federal Register first published in Contains, in chronological order, every regulation and corresponding amendments, issued by federal agencies. Published every business day. Resulting Legislation

More Resulting Legislation… Federal Register Act was amended in 1937 to create the Code of Federal Regulations (Ch. 369, 50 Stat. 304 (1937)). Provides a method of accessing federal regulations currently in force by subject. Bears the same relationship to the Federal Register as the United States Code bears to the Statutes at Large.

And More Resulting Legislation.. Administrative Procedure Act passed in 1946 (Ch. 324, 60 Stat. 237 (1946)) Agency required to publish notice of proposed rulemaking and to provide the public with an opportunity to comment.

Freedom of Information Act – agencies must publish organizational descriptions, rules of procedure, and policy statements (Pub. L. No , 80 Stat. 237 (1966)) Government in the Sunshine Act – agencies must publish notices of most meetings (Pub. L. No , 90 Stat (1976)) Regulatory Flexibility Act – twice a year the agency is required to publish an agenda of proposed actions on rules and an approximate schedule (Pub. L. No , 94 Stat (1980)) Just when you thought that was it…

FEDERAL REGISTER  RULES AND REGULATIONS  PROPOSED RULES  NOTICES (now includes Sunshine Act notices)  PRESIDENTIAL DOCUMENTS

Federal Register Published every business day. Libraries usually get it about a week or ten days after it is published. Contents are required to be judicially noticed. Index issued monthly, cumulates throughout the year. Chronological; whole year paged consecutively

Codification of administrative regulations currently in effect CODE OF FEDERAL REGULATIONS (C.F.R.)

Code of Federal Regulations Access by citation, subject, or from Parallel Tables Titles similar, but not identical to the U.S.C. titles. Updated annually, but only a quarter at a time. Official and Unofficial indexes available – unofficial index is much easier to use. Every regulation includes citation to enabling act (AUTHORITY) and to all previous iterations of rule (SOURCE).

C.F.R. ANNUAL REVISIONS TITLES 1-16 JANUARY 1 TITLES APRIL 1 TITLES JULY 1 TITLES OCTOBER TITLES OCTOBER 1

Regulations – 2 Steps 1. Locate Regulations Statutory Regulations – Citations to CFR CFR Index and Finding Aids; Annual 2. Update Regulations LSA – List of CFR Sections Affected (by Federal Registers) -Monthly; cumulative year-to-date Update from newest LSA to present -Newest Register – “CFR Parts Affected Table” Call Agency

Shepard’s CFR Citations CFR itself is not annotated Shepardize rule -Did a federal court rule on the regulation’s validity? -Locate court cases, law review articles and ALR annotations citing the regulation Also has Presidential Proclamations and Executive Orders

Electronic Access to Regulations Lexis Westlaw Loislaw Internet: Individual agency websites Updating: check dates!

Other Administrative Resources States have administrative compilations similar to the Federal Register and C.F.R. Administrative decisions are published separately Most attorneys use unofficial versions of administrative decisions because they are easier to use Looseleaf services

Presidential Documents Constitutional and/or statutory authority Proclamations and Executive Orders -Fed. Reg., Title 3 CFR, USCCAN, USCS Adv. Reorganization Plans Nominations Other Documents – Administrative orders, executive agreements Weekly Compilation of Presidential Documents

Agency Decisions Quasi-Judicial functions Not standardized as rule-making is No Fed. Reg. or complete publishing system Official publications – slow, poor indexing Unofficial commercial publications of decisions -looseleaf sets USCS has administrative decisions, as well as rules, in its annotations

PRESIDENTIAL DOCUMENTS

Massachusetts Admin. Law C.M.R. – Code of Mass. Regulations Mass. Register – bi-weekly updates Sec’y of State Mass. Trial Court Libraries site Social Law Lib’y paid subscriptions NUSL Library site: Westlaw/Lexis