Introduction to Administrative Law Spring 2014

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 The majority of lawyers do admistrative practice some or most of the time. Malpractice trap if you do not recognize adlaw 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.

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.

Course Materials The E&E book Basic intro to administrative law – read it all Full text cases in specific regulatory areas. Learn to sort out issues in real cases Learn to deal with the underlying facts Regulatory materials What do regulatory documents look like? How do you read long documents? Class discussion of issues that come up in the news.

Study and Discussion Aids PowerPoint slides Study questions to aid class discussion, not a canned lecture on the course nor a summary of the material. They are study aids, not substitutes for reading. Exam study questions The exam will be based on these questions Simple, clear, straightforward There may also be quizzes Class discussion Elucidating the text. Better understanding of agency function and how agencies execute policy. I reserve the right to use participation points.

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 states have multiple executives and less separation of powers.

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 While there was federal regulation before the 1930s, 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 This lead to the constitutional fight over the delegation doctrine.

World War II 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 Modern Supreme Court admistrative law jurisprudence starts in the 1960s

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?

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

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. w/index.htm w/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 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 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.