Administrative Law

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Administrative Law

• Advanced Legal Research
• Winter 2006

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Legislative Branch
Executive Branch
Judicial Branch
Administrative Agencies
Judicial Functions
Executive Functions
adjudicative hearings
investigation
enforcement
Legislative Functions
rulemaking
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Definition

• An administrative agency is a governmental
  authority, other than a court and other than a
  legislative body, that affects the rights of
  private parties through either adjudication,
  rulemaking, investigating, prosecuting,
  negotiating, settling, or informally acting.
• Kenneth Culp Davis, Administrative Law and
  Government 6 (2d Ed. 1975)

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BIRTH OF ADMINISTRATIVE LAW
New Deal

• Began about a century ago
• Greatly expanded during the New Deal.
• Economic situation required rapid governmental
  action and flexible solutions.
• Amount/complexity of legislation generated
  required specialized oversight that Congress
  could not provide.
• Next wave 60s and 70s on environment and health

Franklin D. Roosevelt
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Administrative Agency Strengths

• Agency deals with limited area of public policy
  and can develop expertise
• Can hire people with skills and talents needed
  for specific situations.
• Techniques and decision-making can be tailored to
  meet the problem at hand.
• Action can be taken quickly.

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Administrative Agency Weaknesses

• Administrative flexibility may simply mask
  unchecked power by unelected officials.
• Continued exposure to the same issues may lead to
  rigidity and ineffectiveness.
• Potential for overgrown bureaucracy and
  burdensome regulations.

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ENABLING LEGISLATION

• Congress creates the agency.
• Grants and enumerates the agency powers.
• Delegates rulemaking and decision-making
  authority to the agency.
• Agency actions and powers may not exceed the
  delegated authority.

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Agency Powers Must Be Based on Proper Delegation

• Article I, 1, of the Constitution vests all
  legislative powers in the Congress.
• Article 11 on Executive Branch President
  shall take care that the law be faithfully
  executed.
• Courts have used this clause to limit
  congressional delegation of power to executive
  agencies. This text permits no delegation of
  those powers.
• When Congress confers decision-making authority
  on agencies it must lay down by legislative act
  an intelligible principle to which the person or
  body authorized to act is directed to conform.
  J.W. Hampton, Jr. Co. v. U.S., 276 U.S. 394
  (1928)

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Types of Administrative Actions

• Rules and Regulations
• Orders
• Licenses
• Advisory Opinions
• Decisions

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Early Years of Agencies

• No official source for publication of rules and
  regulations of federal agencies existed.
• Agencies were not required to make their rules
  and regulations available to the public.
• This raised due process problems.

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PANAMA REFINING CO. v. RYAN, 293 U.S. 388 (1935)
The Hot Oil Case

• Court invalidated agencys enabling act because
  Congress has declared no policy, has established
  no standard, has laid down no rule.
• Regulation at issue had been repealed prior to
  defendants prosecution, repeal was not
  discovered until the case reached the Supreme
  Court.
• Led to legislation requiring that all federal
  agency regulations be published.

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Resulting Legislation

• Federal Register Act - any regulation with
  general applicability and legal effect must be
  published in the Federal Register (Ch. 417, 49
  Stat. 500 (1935))
• Federal Register first published in 1936.
• Contains, in chronological order, every
  regulation and corresponding amendments, issued
  by federal agencies.
• Published every business day.

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More Resulting Legislation

• Federal Register Act was amended in 1937 to
  create the Code of Federal Regulations (Ch. 369,
  50 Stat. 304 (1937)).
• Provides a method of accessing federal
  regulations currently in force by subject.
• Bears the same relationship to the Federal
  Register as the United States Code bears to the
  Statutes at Large.

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And More Resulting Legislation..

• Administrative Procedure Act passed in 1946 (Ch.
  324, 60 Stat. 237 (1946))
• Agency required to publish notice of proposed
  rulemaking and to provide the public with an
  opportunity to comment.

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Just when you thought that was it

• Freedom of Information Act agencies must
  publish organizational descriptions, rules of
  procedure, and policy statements (Pub. L. No.
  84-487, 80 Stat. 237 (1966))
• Government in the Sunshine Act agencies must
  publish notices of most meetings (Pub. L. No.
  94-409, 90 Stat. 1241 (1976))
• Regulatory Flexibility Act twice a year the
  agency is required to publish an agenda of
  proposed actions on rules and an approximate
  schedule (Pub. L. No. 96-354, 94 Stat. 1164
  (1980))

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FEDERAL REGISTER

• RULES AND REGULATIONS
• PROPOSED RULES
• NOTICES (now includes Sunshine Act notices)
• PRESIDENTIAL DOCUMENTS

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Federal Register

• Published every business day.
• Libraries usually get it about a week or ten days
  after it is published.
• Contents are required to be judicially noticed.
• Index issued monthly, cumulates throughout the
  year.
• Chronological whole year paged consecutively

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CODE OF FEDERAL REGULATIONS (C.F.R.)
Codification of administrative regulations
currently in effect
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Code of Federal Regulations

• Access by citation, subject, or from Parallel
  Tables
• Titles similar, but not identical to the U.S.C.
  titles.
• Updated annually, but only a quarter at a time.
• Official and Unofficial indexes available
  unofficial index is much easier to use.
• Every regulation includes citation to enabling
  act (AUTHORITY) and to all previous iterations of
  rule (SOURCE).

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C.F.R. ANNUAL REVISIONS
TITLES 1-16 JANUARY 1 TITLES 17-27 APRIL
1 TITLES 28-41 JULY 1 TITLES 42-50 OCTOBER 1
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Regulations 2 Steps

• Locate Regulations
• Statutory Regulations Citations to CFR
• CFR Index and Finding Aids Annual
• Update Regulations
• LSA List of CFR Sections Affected (by Federal
  Registers)
• -Monthly cumulative year-to-date
• Update from newest LSA to present
• -Newest Register CFR Parts Affected Table
• Call Agency

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Shepards CFR Citations

• CFR itself is not annotated
• Shepardize rule
• -Did a federal court rule on the regulations
  validity?
• -Locate court cases, law review articles and ALR
  annotations citing the regulation
• Also has Presidential Proclamations and Executive
  Orders

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Electronic Access to Regulations

• Lexis
• Westlaw
• Loislaw
• Internet www.gpoaccess.gov
• Individual agency websites
• Updating check dates!

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Other Administrative Resources

• States have administrative compilations similar
  to the Federal Register and C.F.R.
• Administrative decisions are published separately
  
• Most attorneys use unofficial versions of
  administrative decisions because they are easier
  to use
• Looseleaf services

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Presidential Documents

• Constitutional and/or statutory authority
• Proclamations and Executive Orders
• -Fed. Reg., Title 3 CFR, USCCAN, USCS Adv.
• Reorganization Plans
• Nominations
• Other Documents Administrative orders,
  executive agreements
• Weekly Compilation of Presidential Documents

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Agency Decisions

• Quasi-Judicial functions
• Not standardized as rule-making is
• No Fed. Reg. or complete publishing system
• Official publications slow, poor indexing
• Unofficial commercial publications of decisions
• -looseleaf sets
• USCS has administrative decisions, as well as
  rules, in its annotations

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PRESIDENTIALDOCUMENTS
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Massachusetts Admin. Law

• C.M.R. Code of Mass. Regulations
• Mass. Register bi-weekly updates Secy of State
  www.sec.state.ma.us
• Mass. Trial Court Libraries site
  www.lawlib.state.ma.us
• Social Law Liby paid subscriptions
  www.socialaw.com
• NUSL Library site www.slaw.neu.edu/library/statem
  a.htm
• Westlaw/Lexis