1. Introduction to Administrative Law
Edward P. Richards
Spring 2010

2. Administrative Law
Administrative law governs the organization and functioning of government agencies, and how their actions are reviewed by the courts. 
Administrative law is the heart of the modern state, and keeps life from being nasty, brutish, and short.
Most business law is heavily involved with administrative law
Many areas of personal law also involve administrative law

3. Course Objectives
Provide a general introduction to administrative law principles
Introduce students to administrative law materials
Learn to analyze administrative law cases
Understand the basics of agency practice and how it differs from trial practice
Show administrative law in action through current controversies such as flood protection for New Orleans and health care reform

4. Cross-Cultural View
The US administrative law system has many parallels with international civil law systems
An emphasis on codes, rather than case precedent
Inquisitorial rather than adversarial adjudications
The combination of functions in a single agency, rather than in different branches of government

5. Separation of Powers
The US and State Governments are divided Into three branches:
Legislative Branch
Executive Branch
Judicial Branch
State governments follow the three branch model, but with significant differences
Federal laws and the constitution preempt conflicting state laws
The Constitution preempts conflicting federal laws

6. Agencies and Separation of Powers
The US Constitution is mostly silent on agencies
The courts wrestled with agency powers for many years because agencies exercise the powers of all three branches of government
This was resolved in the 1930s and the courts no longer question the hybrid role of agencies

7. Agencies are Established by the Legislature
The agency enabling statute establishes the agency's:
Powers and Duties
Organization
Funding
Standards for Judicial Review of the Agency's Actions
Some state agencies are established by the state constitution or constitutional amendments.

8. Delegation of Power to the Agency
General Grant of Power
Specific Grants of Power
Contingent Grants of Power
The Legislature cannot grant the agency more power than the legislature itself can exercise

9. Executive Control in the Federal Government
All enforcement agencies are in the Executive branch.
Enforcement can include orders to comply with the law, fines, and criminal prosecution
Congress can control agencies that only do studies and investigations, but no enforcement, such as the Congressional Budget Office or the Library of Congress

10. 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.
The attorney general controls the legal office.
Other state offices, like state auditor, also have elected heads.
Some states even allow legislative agencies with enforcement powers

11. 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 problems of the Federal Election Commission

12. 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
Some agencies, called independent agencies, are run by boards or commissions.
Members have fixed, staggered terms and can only be removed for bad conduct
This limits executive control and gives the agency some independence from political pressure
McCain missed this in his call for firing the SEC head

13. 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.

14. 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?
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

15. Changing Agency Policy
Executive branch control
Replace the agency director
Use Executive Orders to direct agency policy
Legislature
Change the enabling law
Increase or eliminate the funding for agency functions
Citizens
Petition the agency to change regulations
Participate in pubic hearings
Lobby the executive and legislature
Elect different politicians in the executive and legislature

16. Carrying Out Agency Policy

17. Administrative Procedure Act (APA)
The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rulemaking, adjudications, and how citizens can petition the agencies.
Equivalent to the code of civil procedure for agencies
APAs were first adopted post-WWII
The APA only applies if the legislature has not made special rules for a given agency.

18. Administrative Rules
The Legislature can delegate the power to make rules to the agency
Some agencies do not have rulemaking authority
Rules cannot exceed the authority in the agency's enabling legislation or the Constitution
Properly promulgated rules have the same effect as statutes

19. Why Make Rules?
Legislatures do not have the expertise or the time to legislate in technical areas
National standards can be adopted through agency rules, harmonizing practice across jurisdictions
National building codes
Recommendations of the Advisory Committee on Immunization Practices
Rules give the public and regulated parties guidance
Could be used to limit ALJ discretion in LA
Rules limit the issues that can be reviewed by the courts

20. Public Participation in Rulemaking
Proposed rules must be published for public comment.
The agency must take written comments.
Some states require public hearings if requested by enough people.
Federal agencies sometimes use public hearings on important policy issues.
The agency must review and respond to the comments.

21. When Agencies Make Decisions - Adjudications
How is an adjudication different from a rule?
Rules apply to everyone in the affected class.
Adjudications decide questions in individual cases and only bind those parties.
Parties to an adjudication are entitled to be heard.
Adjudications may include oral hearings.
Some adjudications are done on written documents only.

22. Administrative Law Judge (ALJ)
A fact-finder in the administrative law system.
ALJs usually act as inquisitorial judges and try to assure that the case is fairly presented and decided.
ALJ's do not make final decisions but make recommended rulings to the agency
Some states give more power to ALJs in the name of fairness
LA does give final authority to the ALJ

23. How are ALJs Different from Article III (Art V in LA) Judges?
What does the judge know?
Administrative law judges (ALJs) may use their own knowledge of the subject.
Judges can be disqualified if they know about the subject.
Conflict of Interests
ALJs often know the parties and may have worked on the case.
Judges in courts cannot know the case or the parties.

24. Agency ALJs v. Central Panel ALJs
All federal and many state ALJs are part of the agency
Decide the same type of cases all the time
May be hired for their expertise
Will develop expertise
Central Panels
Not part of the agency
Less expertise - generally do not specialize
Trades off the value of expertise for "fairness"

25. How are Adjudications different from Judicial Opinions?
ALJs are primarily fact finders.
ALJs often follow Attorney General Opinions.
Judges decide legal questions on their own.
ALJ decisions are recommendations to the agency and may be changed by the agency.
An adjudication is not binding in other cases.
Court decisions can be binding on lower courts.

26. Agency Enforcement Tools

27. Permits and Licenses
You have to show you have met the standards set by law or regulation before you get the license or permit.
Standards must be clear.
Must treat all applicants equally.
Conditioned on accepting enforcement standards
You agree to be bound by the administrative rules.
You must allow inspections during business hours.
Licenses and permits can be revoked without a court order

28. Inspections The inspector determines the facts through the inspection.
The defendant may present its case explaining the problem during the inspection.
The inspector must provide a written record.
Local government often allows appeals to the city council.
The courts will defer to the inspector's findings if the case is appealed to the courts.

29. Administrative Searches
License and permit holders may be inspected without a warrant.
Other inspections may require an administrative warrant.
Requirements for an administrative warrant.
No probable cause.
Must show the reason for the search and the locations
Administrative searches cannot be used when a criminal warrant is necessary.
Special rules for national security law

30. Administrative Orders
The first step in enforcement is to issue an order explaining the violation and how to correct it
Most persons comply with the order
If the person does not comply, the order proves that the person was on notice of the problem
In some cases there may also be a fine for not complying with the order

31. Enforcement of Agency Orders
If the target of the order does not comply, then the department must seek a judicial order to force compliance
Most agencies don't make arrests or use force
Some agencies do have police and prosecutors

32. Court Orders
In many cases the agency must ask the court to issue orders to enforce agency regulations or adjudications
Injunctions
Orders to prevent an actions, such as operating a restaurant
Temporary injunctions
Permanent injunctions
Personal restriction orders
These order individuals to refrain from dangerous behavior

33. The Advisory and Consultative Role
There are some agencies that do not have enforcement powers
They do research and education
They shape policy by funding other agencies or private projects
Even enforcement agencies depend on voluntary compliance and have a strong advisory and consultative role

34. Public Health Examples
The CDC is a non-enforcement agency
The CDC's primary role is providing guidance to state and local health departments
Most guidance is voluntary, but can be tied to the receipt of grant funds
State and local health departments
Departments with enforcement powers also have an important research and educational role
This includes epidemiology, health education, and technical assistance to businesses such as restaurants

35. Judicial Review

36. Is the Agency Acting Legally?
Does the activity violate the US constitution or treaties?
Does a state agency activity violate the state constitution?
Is the agency activity allowed by the agency's enabling act?
Is the activity prohibited by other laws?
Is the agency following its own rules?

37. The Legislature Sets the Standard for Judicial Review of Facts
De Novo Review
The court ignores the agency decision
Review on the Record
The court uses the record of the agency proceeding but makes an independent review
Deference to the Agency - Most Common
The court upholds the agency decision unless it is arbitrary and capricious
No Review
In some cases, such as the smallpox compensation fund, the legislature does not allow judicial review of the agency decision

38. Courts Defer to Agency Policy Decisions
"It is not the function of a court to determine whether the public policy that finds expression in legislation of this order is well or ill conceived. The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense. Within the field where men of reason may reasonably differ, the legislature must have its way." (Williams v. Mayor of Baltimore, 289 U.S. 36, 42 (1933)

39. Why Do the Courts Defer to the Agency?
Efficiency
Legislatures do not have the expertise to draft detailed directions for the health department
Broad authority lets the agency use its own expertise
Flexibility
Health departments must deal with new conditions and emergencies that were not anticipated by the legislature
Speed
If the courts required specific laws for all actions, it would take months to years to get laws passed for new problems

40. What if the Law is not Clear?
Courts use a standard from an environmental law case, Chevron v. NRDC, to decide if the agency action is legal
The first step is to determine if the law clearly prohibits the agency action
If the law would allow the action, then the second step is to decide if the agency action is reasonable in light of the objectives of the law
If the action is reasonable under the statute, then it is allowed

41. Can the Court Change the Agency Decision?
If the court finds the agency action is illegal, it can prevent the agency from acting.
A federal court cannot change an agency ruling, only block it and send it back to the agency for reconsideration.
Some state courts can change the agency ruling and substitute their new ruling.

42. Exhaustion of Remedies
Many agencies provide an internal appeals or review process for agency decisions
The courts require that persons who want to challenge agency actions in court first go through all the agency appeals
The court does not require exhaustion of the agency process if the agency is acting illegally
If the litigant goes directly to court and the court decides the agency was acting legally, it will be too late to finish the agency process

43. Public Access to Agency Information

44. Freedom of Information Acts
Provide public access to information held by agencies
Have exceptions to protect trade secrets and information that will affect agency function or public safety
Modified by state and federal privacy laws to protect personal information

45. Open Meetings Laws
Provide for public attendance at agency governing body meetings.
Require public notice of meetings
Allow for closed meetings on personnel matters and other topics such as bids that require secrecy