United States administrative law
Encyclopedia
United States administrative law encompasses a number of statute
s and cases
which define the extent of the powers and responsibilities held by administrative agencies
of the United States Government. The executive
, legislative
, and judicial
branches of the U.S. federal government cannot always directly perform their constitutional
responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.
Justice Breyer
defines administrative law in four parts. Namely, the legal rules and principles that: (1) define the authority and structure of administrative agencies; (2) specify the procedural formalities employed by agencies; (3) determine the validity of agency decisions; and (4) define the role of reviewing courts and other governmental entities in relation to administrative agencies.
U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power. Agencies "legislate" through rulemaking
—the power to promulgate (or issue) regulations administrative law is codified as the Code of Federal Regulations
.
. Generally speaking, therefore, agencies do not have the power to enact a regulation where:
and adjudication
. The scope of these two categories is defined in three ways:
Cases in which an act was ruled to be adjudicative:
Cases in which an act was ruled to be rulemaking:
,
clause of the 5th Amendment
or 14th Amendment
can require that a hearing be held if the interest that is being adjudicated is sufficiently important or if, without a hearing, there is a strong chance that the petitioner will be erroneously denied that interest. A hearing can also be required if a statute somehow mandates the agency to hold formal hearings when adjudicating certain issues.
, and extends to all regulations necessary to carry out the purposes of the Act, rather than being limited to powers expressly granted by the statute. The power extends to substantive rules as well as procedural rules. By contrast, many states, such as Kentucky
, have been less willing to allow their agencies to promulgate rules with the effect of substantive law.
Agencies may not promulgate retroactive rules unless expressly granted such power by the organic statute
. Bowen v. Georgetown University Hospital,
The choice of whether to promulgate rules or proceed with ad hoc
adjudicative decisions rests in the informed discretion of agencies. SEC v. Chenery Corp.
, (Dissenting opinion arguing that the decision permitted agencies to rule arbitrarily, without law). Agencies may also announce new policies in the course of such adjudications.
Agencies are permitted to rely on rules in reaching their decisions rather than adjudicate, where the promulgation of the rules is within the agency's statutory authority, and the rules themselves are not arbitrary or capricious. Heckler v. Campbell
, .
Agencies must abide by their own rules and regulations. Accardi v. Shaughnessy, .
:
authority to an executive or independent agency, and state government
s may provide an administrative appeal process for people who are dissatisfied with decisions made by certain state agencies.
California has an extensive body of administrative law including a hearing agency that requires its administrative law judges to be lawyers. California statutory law governing the hearing agency states that non-lawyers may appear before it. However, California case law holds that former attorneys who no longer practice law may not appear before it. Most California agencies adjudicate license cases utilizing the California Attorney General's legal staff. However, others (including the Department of Corporations and Insurance) utilize their own legal staff.
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s and cases
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
which define the extent of the powers and responsibilities held by administrative agencies
Independent agencies of the United States government
Independent agencies of the United States federal government are those agencies that exist outside of the federal executive departments...
of the United States Government. The executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
, legislative
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
, and judicial
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
branches of the U.S. federal government cannot always directly perform their constitutional
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.
Justice Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
defines administrative law in four parts. Namely, the legal rules and principles that: (1) define the authority and structure of administrative agencies; (2) specify the procedural formalities employed by agencies; (3) determine the validity of agency decisions; and (4) define the role of reviewing courts and other governmental entities in relation to administrative agencies.
U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power. Agencies "legislate" through rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
—the power to promulgate (or issue) regulations administrative law is codified as the Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
.
Scope of administrative authority
The authority of administrative agencies stems from their organic statute, and must be consistent with constitutional constraints and legislative intentLegislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
. Generally speaking, therefore, agencies do not have the power to enact a regulation where:
- The regulation is an unconstitutional delegation of powerNondelegation doctrineThe doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural...
(under current caselaw, courts almost never invalidate a regulation on this ground); - The organic statute explicitly denies authority (but note that failure to grant authority in later legislative efforts is not dispositive);
- The regulation is not based on factual findings;
- The regulation is not pursuant to serving the "public convenience, interest, or necessity"; or
- The regulation is outside the agency's statutory purpose as articulated in its organic statute.
Adjudicative versus rule-making acts
Agency acts are divided into two broad categories: rulemakingRulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
and adjudication
Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
. The scope of these two categories is defined in three ways:
Londoner/Bimetallic definition
Factors tending to make an act adjudicative in nature:- Involving a small number of people
- Individuals involved are specially affected by the act
- Decision based on the facts of an individual case, rather than policy concerns
Cases in which an act was ruled to be adjudicative:
- Londoner v. City and County of Denver, involving a tax levied on residents of a particular street without affording them the opportunity to have their objections heard in person.
Cases in which an act was ruled to be rulemaking:
- Bi-Metallic Investment Co. v. State Board of Equalization, involving a tax levied on the entire city of Denver.
Administrative Procedure Act
According to section 551 of the Administrative Procedure ActAdministrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
,
- RulemakingRulemakingIn administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
is "an agency process for formulating, amending, or repealing a rule."- A rule in turn is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy;"
- AdjudicationAdjudicationAdjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
is "an agency process for the formulation of an order;"- An orderCourt orderA court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
in turn is "the whole or part of a final disposition ... of an agency in a matter other than rule making but including licensing;"
- An order
Right to a hearing
There are two ways that an individual can attain the right to a hearing in an adjudicative proceeding. First, the Due ProcessDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause of the 5th Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
or 14th Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
can require that a hearing be held if the interest that is being adjudicated is sufficiently important or if, without a hearing, there is a strong chance that the petitioner will be erroneously denied that interest. A hearing can also be required if a statute somehow mandates the agency to hold formal hearings when adjudicating certain issues.
Scope and extent of rulemaking power
Federal administrative agencies have the power to promulgate rules that have the effect of substantive law. The power to do so stems from the agency's organic statuteOrganic statute
Organic statute is a calque from the French "Règlement Organique"; literally "regulations for an organ", with "organ" meaning an organization or governmental body...
, and extends to all regulations necessary to carry out the purposes of the Act, rather than being limited to powers expressly granted by the statute. The power extends to substantive rules as well as procedural rules. By contrast, many states, such as Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, have been less willing to allow their agencies to promulgate rules with the effect of substantive law.
Agencies may not promulgate retroactive rules unless expressly granted such power by the organic statute
Organic statute
Organic statute is a calque from the French "Règlement Organique"; literally "regulations for an organ", with "organ" meaning an organization or governmental body...
. Bowen v. Georgetown University Hospital,
The choice of whether to promulgate rules or proceed with ad hoc
Ad hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....
adjudicative decisions rests in the informed discretion of agencies. SEC v. Chenery Corp.
SEC v. Chenery Corp.
SEC v. Chenery Corp., 332 U.S. 194 , is a case, often cited in administrative law-Background:A federal water company was accused of illegal stock manipulation....
, (Dissenting opinion arguing that the decision permitted agencies to rule arbitrarily, without law). Agencies may also announce new policies in the course of such adjudications.
Agencies are permitted to rely on rules in reaching their decisions rather than adjudicate, where the promulgation of the rules is within the agency's statutory authority, and the rules themselves are not arbitrary or capricious. Heckler v. Campbell
Heckler v. Campbell
Heckler v. Campbell, , is a United States Supreme Court case concerning whether the United States Secretary of Health and Human Services could rely on published medical-vocational guidelines to determine a claimant’s right to Social Security benefits....
, .
Agencies must abide by their own rules and regulations. Accardi v. Shaughnessy, .
Type of rulemaking
There are three types of rulemakingRulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
:
- Formal rulemaking, which is rulemaking for which the organic statuteOrganic statuteOrganic statute is a calque from the French "Règlement Organique"; literally "regulations for an organ", with "organ" meaning an organization or governmental body...
requires that rules be "made on the record after agency opportunity for hearing," and for which the APA prescribes particular procedures; the phrase is required for formal rulemaking; simply requiring that rules be made "after a hearing" does not trigger the requirements of formal rulemaking; - Informal rulemaking, which is rulemaking for which no procedural requirements are prescribed in the organic statuteOrganic statuteOrganic statute is a calque from the French "Règlement Organique"; literally "regulations for an organ", with "organ" meaning an organization or governmental body...
, and for which the APA requires notice and comment; - Hybrid rulemaking, which is rulemaking for which particular procedural requirements beyond notice and comment, but not rising to the level of formal rulemaking.
State-level administrative law
States may have their own administrative law; for example, a state constitution may allow the legislature to delegate rulemakingRulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
authority to an executive or independent agency, and state government
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...
s may provide an administrative appeal process for people who are dissatisfied with decisions made by certain state agencies.
California has an extensive body of administrative law including a hearing agency that requires its administrative law judges to be lawyers. California statutory law governing the hearing agency states that non-lawyers may appear before it. However, California case law holds that former attorneys who no longer practice law may not appear before it. Most California agencies adjudicate license cases utilizing the California Attorney General's legal staff. However, others (including the Department of Corporations and Insurance) utilize their own legal staff.
Journals and publications
- Administrative Law ReviewAdministrative Law ReviewThe Administrative Law Review was established in 1948 and is the official law journal of the American Bar Association Section of Administrative Law & Regulatory Practice.-Overview:...
is the official quarterly publication of the American Bar AssociationAmerican Bar AssociationThe American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
's Section on Administrative Law and Regulatory Practice, published in coordination with American University Washington College of LawWashington College of LawAmerican University Washington College of Law is the law school of American University. It is located on Massachusetts Avenue in the Spring Valley neighborhood of northwest Washington. WCL is ranked 50th among law schools by US News and World Report...
. - The Journal of the National Association of Administrative Law Judiciary is a publication of the National Association of Administrative Law Judiciary, published in coordination with Pepperdine University School of Law.
- The Texas TechTexas Tech UniversityTexas Tech University, often referred to as Texas Tech or TTU, is a public research university in Lubbock, Texas, United States. Established on February 10, 1923, and originally known as Texas Technological College, it is the leading institution of the Texas Tech University System and has the...
Administrative Law Journal specializes in administrative law topics. - William Funk, J.D., Administrative Procedure and Practice: Problems and Cases, ISBN 0314155171, Thomson West, 3rd ed., 2006.
- William Funk, J.D., Administrative Law: Examples and Explanations, ISBN 0735558914, Aspen Publishers, 2nd ed., 2006.
See also
- Administrative law judgeAdministrative law judgeAn administrative law judge in the United States is an official who presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. The ALJ is usually the initial trier of fact and decision maker...
- Article I and Article III tribunalsArticle I and Article III tribunalsIn the United States, the American legal system includes both state courts and United States federal courts. The federal tribunals may be an Article III tribunal or another adjudicative body classified as an Article I or an Article IV tribunal...
- List of significant administrative law cases
- Refugee rouletteRefugee rouletteRefugee roulette refers to arbitrariness in the process of refugee status determinations or, as it is called in the United States, asylum adjudication...
External links
- ABA Section of Administrative Law & Regulatory Practice
- LII Law about administrative law
- Administrative Law and Procedure, legal definitions
- Federal Administrative Law: A Brief Overview, Law Librarians' Society of Washington, D.C.