Administrative Law

It is the branch of public law that governs the power and procedures of administrative agencies, including judicial review of agency action.

Administrative agencies.

Note: Administrative agencies are also known as regulatory agencies.

The administrative agency.

Note: The term excludes legislatures, the judiciary, and non-governmental activities.

Agencies are formed by an act of legislation that sets forth an agency’s purposes and establishes its organization.

Executive branch.

Regulatory or non-regulatory, and executive or independent.

Regulatory agencies.

Examples of agencies include Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and the Federal Communication Commission (FCC).

Nonregulatory agencies.

Examples include the Federal Bureau of Investigation (FBI) and the Social Security Administration (SSA).

The agencies within the department of the President’s cabinet or the Executive Office of the President.

Examples include the Food and Drug Administration (FDA), the Internal Revenue Service (IRS), and the Occupational Safety and Health Administration (OSHA).

• Appointed by the President with the advice and consent of the Senate.
• Serve for a fixed term.
• They are removed only for cause.

The Federal Reserve System, the National Labor Relations Board, and the Federal Deposit Insurance Corporation.

Examples also include the FTC, FCC, SEC, and SSA.

Rulemaking, investigating, supervising, advising, prosecuting, and adjudicating.

The enabling act or executive order.

Note: Each branch of the political system has some control over an agency.

The executive branch may nominate the top official of an agency or make budgetary recommendations.

The legislative branch can amend an agency’s authority, by abolishing it, or by enacting budgetary measures. Additionally, the legislature can enact laws that nullify rules and regulations issued by an agency.

• The Act requires agencies to submit their rules to Congress before their effective date.
• By a joint resolution passed within 60 days, Congress may then disapprove the rules.
• The Act authorizes the courts to enforce the Regulatory Flexibility Act of 1980, which requires agencies to analyze the effects of new regulations when they significantly impact a substantial number of small entities.
• The Act established the National Enforcement Ombudsman to handle comments from owners of small businesses and created regional boards to rate the agencies and publish the resulting findings.

The court or judicial branch by exercising the power of judicial review.

Ultra vires.

Note: It is unconstitutional and void.

The Administrative Procedure Act(APA).

In 1966.

Freedom of Information Act (FOIA).

National defense matters, internal personnel rules, trade secrets, personal or commercial financial data, and records gathered by law enforcement agencies.

In 1996.

The Government in the Sunshine Act.

Note: The objective is to ensure every portion of every meeting of an agency is open to public observation.

The Federal Register Act.

The Government Manual.

Notice of all federal agencies’ official acts, including information about Presidential proclamation, agency hearings, proposed and adopted regulations, and amendments thereto.

Note: Under the APA, an agency’s substantive regulation is not enforceable unless it has been published in the Federal Register.

Code of Federal Regulation (CFR).

Legislative rules.

Members of Congress, their constituents, professors, business people, trade groups, and politically active organizations.

• Use the informal rulemaking procedure provided for by the APA. (Note: Informal rulemaking is sometimes referred to as notice and comment rulemaking.)
• Publication of notice of the proposed rule in the Federal Register, affording interested persons an opportunity to submit written comments.
• After at least 30 days of public comment and review, the agency’s final rule is published in the Federal Register. (Note: the 30-day period can be shortened in the event of an emergency.)
• The agency must publish a concise general statement explaining the basis and purpose of the rule.

Interpretive and procedural rules.

• Held a formal hearing to provide an opportunity for interested persons to testify and cross-examine witnesses before a rule is adopted.
• After the hearing, the agency makes public its findings of fact, conclusions of law, and decisions concerning the adoption of a formal rule. ( Note: Finding of fact, the conclusion of law, and decision concerning the adoption of a formal rule constitute the record.)

The formal rule.

The evidence in the record be sufficient for a reasonable person reviewing it to reach the same conclusion as the agency.

• Costly or expensive.
• Time-consuming.
• Congress rarely mandates its use.

Hybrid rulemaking.

Note: the substantial evidence standard also applied as for formal rulemaking.

An adjudication.

Because the APA provides little guidance for informal adjudications, agencies do not have consistent procedures for them.

An individual is entitled to reasonable notice that his or her rights are about to be affected by agency action and to be informed of his or her right to a hearing prior to any further agency action.

Formal adjudication.

A respondent.

Administrative law judge.

• Notification of charges and hearings.
• Representation by an attorney.
• An impartial ALJ.
• Presentation of evidence.
• Cross-examination of the witnesses of the agency.
• A decision based on the regulation.

It requires an agency to provide opportunities for settlement.

Note: Most disputes are resolved through settlement.

Judicial review.

It is to ensure that an agency does not exceed its grant of delegated authority.

Only after a party has established that he or she is an aggrieved party who has standing, the party has exhausted administrative remedies, and the court is satisfied that the dispute is ripe, or ready for decision.

Note: A court can not interfere with the discretion delegated to an agency and judicial review of formal agency action applies the substantial evidence rule.

Arbitrary and capricious standard.

Agency deference.

The doctrine of standing.

A person must demonstrate that he or she has suffered a direct injury as a result of the agency action.

The interest that the injured party seeks to protect must be within the range of interests protected by the Constitution, a statute, or a regulation.

Note: Even a party has standing, he or she must exhaust all available remedies before filing a suit.

The exhaustion doctrine.

The ripeness requirement.