admin law slideshare

February 1, 2009

U.S. Law

An Introduction toAdministrative Law

February 1, 2009

Structure of Government

● What do we mean by separation of powers?– give examples

● What do we mean by checks and balances?– give examples

February 1, 2009

Source of Administrative Law

● Constitution● Statutes

– enabling acts

● Case Law● Regulations

– Enforcement rules and interpretations

● Administrative Decisions

February 1, 2009

Agencies

● Broad Definition – every non-military entity other than courts and legislature.– Kinds: regulatory and welfare, Executive and

Independent.

– Each exist on Federal and State levels

● Each has rule-making, enforcement and adjudication powers.– how does this fit within the idea of separation of

powers and check and balances?

February 1, 2009

Independent Agencies

● Exist “outside” of the Executive Branch● Created by Congress to be independent

– Usually headed by a commission or board● Appointed by President, confirmed by Senate, serving

staggered terms.● President can removed commissioners pursuant to

statutory authority.

● Examples:– Federal Communications Commission (FCC),

Federal Election Commission (FEC)

February 1, 2009

Creation of Agencies

● Created by enabling statutes which describe the agency's structure, purpose and powers. – The enabling statute contains a legislative

delegation of rule making power.

● The delegation of power must specify: – Who and what are the subject of the regulation.

– The harm to be prevented.

– Guidance as to how the prevention will be carried out.

February 1, 2009

Executive Agencies

February 1, 2009

U.S. Department of Interior

February 1, 2009

The Fourth Branch

● Explosion of number and size of administrative agencies in 1900s.

● Administrative Procedures Act (1946) created to create uniformity.– Regulates rule-making, adjudication and other

activities.

February 1, 2009

Types of Agency Actions

● Rulemaking– Promulgation of regulations that generally have the

same effect of law as if it was passed by Congress.

● Adjudication– Applying existing rule to set of facts to determine

what outcome is required by statute or rule.

● Investigations– Determining whether someone may be in violation of

rule.

February 1, 2009

Rule-Making

● “Legislative Rules” set substantive and procedural law that must be followed by the agency and those over which it has jurisdiction.– Informal Rule-Making

● Notice and Comment Procedure

– Formal Rule-Making

– Hybrid Rule-Making

– Exception allows for “interim final rule”● only in cases of “emergency” where notice and comment

would be impracticably, contrary to public interest.

February 1, 2009

Administrative Procedures Act

● Defines:– Procedural rights of people outside government who

are impacted by agency actions, and

– the manner is which persons inside the government make decisions.

● Applies primarily to rulemaking and adjudication.

February 1, 2009

Informal Rule-Making

● § 553 of APA establishes 3-step informal rulemaking procedure:– Publication of notice

● Exceptions: interpretative rules and when good cause exists.

– Opportunity for public input● Can be written or oral at agency discretion

– Publication of final rule with statement of basis and purpose.

February 1, 2009

Formal Rule Making

● Rarely used.– Required when “rules are required by statute to be

made on the record after an opportunity for agency hearing.”

● Looks like a formal adjudicatory hearing.– A “trial-like hearing.”

February 1, 2009

Hybrid Rulemaking

● Not required by APA. Usually required by Congress in enabling statute.

● Combines elements of both informal and formal rulemaking.– EXAMPLE – Federal Trade Commission

● Must include “informal hearing” at which interested parties can give oral testimony and possibly present and cross-examine witnesses.

February 1, 2009

Finding Regulations

● All regulations are published in the Code of Federal Regulations (C.F.R.).– Organized by subject matter

– The Code is usually quite out-of-date.

● All regulations are published immediately in the Federal Register.– Daily publication.

February 1, 2009

Federal Register

http://www.gpoaccess.gov/

February 1, 2009

Rule-Making Outside the APA

● Interpretive Rules– interpret existing legal standard

– no procedural requirements

● Statement of Policy– states future intentions of the agency

February 1, 2009

Interpretive Rule

February 1, 2009

Adjudicatory Functions

● Adjudication takes place every time an agency takes action that is not in the form of a rule.– Two types: formal and informal

● Examples:– appeal for denial of welfare benefits

– unfair labor practices claim against employer

– revocation of stock broker's license

● Whether formal adjudication is available depends on the statute.

February 1, 2009

Adjudication under the APA

● If an agency is required to provide a formal process, the general requirements of the process are:– Notice must be given to the parties

– Parties must be given opportunity to reach settlement

– Person presiding over hearing is prohibited from ex parte communications

– Hearing must meet certain procedural guidelines

February 1, 2009

Adjudication under the APA

● Hearing before the Administrative Law Judge– the centerpiece of APA formal adjudication.

– the ALJ is an expert in the field, an employee of the agency, yet must remain independent of the agency.

– APA mandates strict separation between ALJ and the agency.

February 1, 2009

Hearing Before ALJ

● ALJ sits as trier of fact and issues legal opinions.– decision must be based solely on facts gathered at

hearing (“on the record”).

– Some hearings are adversarial, some are inquisitorial.

– No absolute right to oral hearing or cross examination of witnesses

– Standard of Proof: Preponderance of the Evidence

February 1, 2009

Hearing Before ALJ

● Rules of Evidence– Federal Rules of Evidence generally do not apply.

– Hearsay is generally admissible.

● The Impact of ALJ Decision– Varies from agency to agency

● In all agencies ALJ's job is collect evidence for Department.

● Recommendation, Decision Subject to Modification, Final Agency Decision

February 1, 2009

Reach of Agency Decisions

● Agency Decision as Precedent– often decisions are not published

– when published, may have precedential effect

● Agency Decision as Lawmaking– a few agencies give full stare decisis effect to

agency decisions.

– Isn't this lawmaking?● No says U.S. Supreme Court

February 1, 2009

Due Process

● No person shall “be deprived . . . of liberty or property without due process of law.”

● 5th and 14th Amendments to the U.S. Constitution

● Two Step Analysis:– Is there a deprivation?

– What process is due?● what procedural safeguards are required?

February 1, 2009

Defining Liberty and Property

● Property and Liberty have been defined broadly by courts.– EXAMPLES:

● welfare benefits are property● denial of parole from prison involves liberty● a drivers license is property

– The deprivation occurs when the claimant is denied liberty or property by the agency.

February 1, 2009

Procedural Safeguards Required

● If there is no deprivation of liberty or property, one never reaches this part of the analysis.

● Ranges from:– full hearing (“the standard bundle of rights”) to an

informal hearing

– depends on nature of the deprivation involved.● More serious = more safeguards required

● Government is allowed to act emergency without regard to due process.

February 1, 2009

Determining Seriousness

● Eldridge “Cost Effectiveness” Test balances three factors:– The seriousness of the deprivation

– The risk of erroneous deprivation and the likely effectiveness of the proposed procedure to reduce the risk.

– The government's interest in avoiding additional procedure

● Includes analysis of cost and administrative burdens.

February 1, 2009

Hamdi v. Rumsfeld Example

● American citizen captured in Afghanistan.

● Labeled as “enemy combatant” by Pres. Bush.

● Detained without hearing, access to counsel.

Yaser E. Hamdi after his arrest in Afghanistan in December 2002.

February 1, 2009

Judicial Review

Administrative Law

February 1, 2009

Review of Agency Action

● No separate Administrative Law court.– Appeals of agency decisions go into state and

federal court just like any other matter.

● Applies to both rule-making and adjudication.● Goal is to make sure that agency decisions are

rational and legally appropriate.● Right to judicial review is either defined

specifically by statute or generally in APA.

February 1, 2009

Procedural Aspects

● Exhaustion of administrative remedies.– Claimant must obtain a final decision from the

agency before they can go into court.● Obtaining a “final decision” may be a multi-step process

in some agencies.

– Exception: when claimant want to challenge the law.

● Means of Obtaining Review– usually file petition with court

February 1, 2009

Scope of Review

● Review of Fact Determinations– Generally must be followed if supported by

“substantial evidence”

● Review of Legal Determinations– Chevron Deference: when agency interpretation of

law is part of agency rule created via the notice and comment process, court must follow the interpretation.

February 1, 2009

Review of Discretionary Action

Overton Park v. Volpe

February 1, 2009

Review of Discretion

● When decisions are deemed by statute to be at the sole discretion of agency, they are not reviewable.– However, if statute sets forth standards to be used

when exercising discretion, then court can review to see whether process was used.

– NOTE – court can also review actions that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”

February 1, 2009

Checks on Power

● What are some examples of how agency power can be controlled by the three branches of government?

February 1, 2009

The Legislative Veto

● Immigration and Naturalization Service v. Chada– What was the adjudicatory process set up by the

Immigration Act?

– Why does Justice Burger strike down the use of this legislative veto?

– This was a veto over an adjudicatory decision. Should Congress still have the right to veto rules?

admin law slideshare

Documents