Administrative Law

Advanced Legal ResearchWinter 2006

Legislative Branch

Judicial Branch Executive Branch

Administrative Agencies

Judicial Functions

Legislative Functions

Executive Functionsinvestigation

enforcement

rulemaking

adjudicative hearings

“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)

Definition

BIRTH OF ADMINISTRATIVE LAW

Franklin D. Roosevelt

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

AdministrativeAdministrative AgencyAgency StrengthsStrengths

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.

Administrative Agency WeaknessesAdministrative 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.

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.

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)

Types of Administrative ActionsRules and RegulationsOrdersLicensesAdvisory OpinionsDecisions

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.

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

o Court invalidated agency’s enabling act because “Congress has declared no policy, has established no standard, has laid down no rule.”

o Regulation at issue had been repealed prior to defendant’s prosecution, repeal was not discovered until the case reached the Supreme Court.

o Led to legislation requiring that all federal agency regulations be published.

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.

Resulting Legislation

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.

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.

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))

Just when you thought that was it…

FEDERAL REGISTER

RULES AND REGULATIONS PROPOSED RULESNOTICES (now includes Sunshine

Act notices)PRESIDENTIAL DOCUMENTS

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

Codification of administrative regulations currently in effect

CODE OF FEDERAL CODE OF FEDERAL REGULATIONS (C.F.R.)REGULATIONS (C.F.R.)

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).

C.F.R. ANNUAL REVISIONS

TITLES 1-16TITLES 1-16 JANUARY 1JANUARY 1TITLES 17-27TITLES 17-27 APRIL 1APRIL 1TITLES 28-41TITLES 28-41 JULY 1JULY 1TITLES 42-50TITLES 42-50 OCTOBEROCTOBER 1

Regulations – 2 Steps

1. Locate RegulationsStatutory Regulations – Citations to CFRCFR Index and Finding Aids; Annual

2. Update RegulationsLSA – List of CFR Sections Affected (by Federal Registers)-Monthly; cumulative year-to-dateUpdate from newest LSA to present-Newest Register – “CFR Parts Affected Table”Call Agency

Shepard’s CFR Citations

CFR itself is not annotated Shepardize rule

-Did a federal court rule on the regulation’s validity?-Locate court cases, law review articles and ALR annotations citing the regulation

Also has Presidential Proclamations and Executive Orders

Electronic Access to Regulations Lexis Westlaw Loislaw Internet: www.gpoaccess.gov Individual agency websites Updating: check dates!

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

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

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

PRESIDENTIALDOCUMENTS

Massachusetts Admin. Law

C.M.R. – Code of Mass. Regulations Mass. Register – bi-weekly updates Sec’y

of State www.sec.state.ma.us Mass. Trial Court Libraries site

www.lawlib.state.ma.us Social Law Lib’y paid subscriptions

www.socialaw.com NUSL Library site:

www.slaw.neu.edu/library/statema.htm Westlaw/Lexis