1. History of Administrative Law

2. 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 broader because states have multiple executives and less separation of powers.

3. The Colonial Period Colonial governments had agencies that were either controlled by the king or by local governments 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 as urban

4. Articles of Confederation After independence, but before the Constitution, the states were independent sovereigns The Articles did not provide for a central government with binding powers All agency action was state and local This did not work very well and almost cost us the revolutionary war

5. 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 The federal delegation was flexible, not enumerated

6. 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

7. Administrative Law in the States From the Constitutional period until the Great Depression, most government was state and local States have multiple executives and do not have the same strictures on separation of powers While some see this period as one of limited regulation, that is only true at the federal level The states and cities had extensive regulatory laws and agencies Most administrative law is still carried out at the state level

8. The Federal Administrative Law System While there was federal regulation before the 1930s, the modern regulatory state began with the Great Depression 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

9. Separation of Powers Enforcement agencies must be in the executive branch Agencies that do not do enforcement may be in any branch Most executive branch agencies are under the control of the President through the appointments process, as laid out in the Constitution

10. The Creation of Agencies Since the Constitution was silent on agencies, all federal agencies are rooted in statutes Congress delegates power to the agency and provides the money to run the agency. Congress cut off money to move Guantanamo prisoners to US prisons Congress can abolish agencies, change their powers, and fund or defund them, subject only to presidential veto power. Congress ultimately holds the power, but does not like to use it for controversial issues.

11. Independent Agencies Congress created independent agencies to reduce the power of the president. These are headed by boards whose members are appointed by the president They serve fixed, staggered terms They can only be removed for good cause This limits the ability of a new president to affect the course of the agency, and prevents political pressure on sitting agency commissioners. This is not in the constitution but has been accepted by the courts.

12. Agency Powers

13. 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. The APA is secondary to the statutes that establish an agency. The APA only controls when the enabling act is silent.

14. 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

15. Rule Making 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 Rulemaking is very important because most statutes passed by Congress do not contain sufficient detail to be enforced without additional agency regulation. The terms rule and regulation are interchangeable.

16. The Constitutional Basis for Adjudications and Regulations The constitution does not provide for agency adjudications or rulemaking Historically, many courts found these to be unconstitutional delegation of judicial and legislative functions The United States Supreme Court found both constitutional in the 1930s, more on practical than jurisprudential grounds. Some right wing politicians would like the court to change this decision, claiming you can only do what is literally spelled out in the constitution.

17. 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 individuals constitutional rights or commit a tort? Biggest difference from private and criminal law: The courts generally defer to the agency.

18. The Role of Lawyers Administrative law has become the single largest area of legal practice Explaining regulations and adjudications to clients Representing clients in adjudications Representing clients in rulemakings Negotiating and problems solving with agencies Challenging agency actions in court

19. Example Areas of Agency Practice Land use and development Health care law Environmental law Employment, discrimination, and labor law Energy law Tax law Financial regulatory (SEC, FDIC, etc) law

20. What You Need to Learn Administrative law is inquisitorial, not adversarial Agencies have different rules than courts and you will be in real trouble if you ever forget that. Regulations are just as important as statutes You have to get along with agencies or your clients suffer Agencies are political and are under the direction of the president and congress Sometimes they are told to do stupid stuff A lot of agency litigation is just about delaying until the politics change.