Chapter 1. An Introduction to the Study of Administrative Law 88 results (showing 5 best matches)
- This introductory chapter sets the table for the principles of administrative law that follow. It begins by offering basic answers to several preliminary questions one might bring to the study of administrative law—such as, what is administrative law? What are administrative agencies? And what motivates agency action? The chapter then briefly introduces the “traditional model” of administrative law, which provides a helpful point of departure for analyzing administrative law problems. The chapter concludes with a history of the administrative state in the United States that, although necessarily brief and somewhat simplified, is more extensive than one often finds in administrative law texts. Some sense of history is necessary to an understanding of administrative law because much of this jurisprudence has developed over a long period of time and on the run, in a continuing effort to keep up with the evolution of the administrative state.
- Administrative law also has little to say about the substance of agency action. Although “administrative law” might aptly describe the considerable amount of law that administrative agencies produce on a daily basis, the conventional understanding of administrative law as a category of jurisprudence relates to courts review those decisions. It does not prescribe the content of agency decisions as such. Administrative law is process-oriented. It focuses on the power of agencies to act with the force of law, and the procedures they must follow when taking such actions. The substantive laws that agencies make, as well as the substantive laws they enforce, provide the subject matter of such kindred subjects as labor law, environmental law, communications law, and so forth.
- This book, like most texts on administrative law, has imposed one final limitation on its subject matter: it is confined to administrative law. Each state has its own complement of administrative agencies, and with them, its own body of administrative law. A comparative study of the administrative law of the various states, together with that of the federal government (not to mention other nations), has much to offer, but so too does a limited focus on the federal administrative system. Because federal administrative law has influenced the development of administrative law in the states, and because the jurisprudence at both levels of government shares much in common, one who understands the federal system knows a great deal about state systems as well.
- The same might be said of the history of American administrative law. The reasons for this controversy are fairly clear. Government administration raises fundamental issues on which Americans have always been divided. But there would be controversy even without such divisions. The tasks of government regulation and of administrative law are extremely difficult. Congress has typically turned to administrative regulation only after other institutions have failed to resolve public problems. As for administrative law, the challenge of devising a legal framework that both legitimates and controls the authority of administrative agencies is not to be underestimated. But if the tasks of administrative agencies and of administrative law are difficult, they also are crucial. Americans have relied on agencies to run their government, to see them through economic depression and world wars, and to protect their health, wealth, and safety during quieter times. Americans have relied on
- Administrative law is limited by several important boundaries. The first and most fundamental limitation is that administrative law by and large applies only to the actions of administrative agencies that alter the legal rights and obligations of individuals. Because of this limitation, there are many things that agencies do that clearly are administrative in nature but that are not directly controlled by administrative law. Indeed, it is fair to say that agency activities do not directly affect individual rights and therefore are not subject to administrative law. For example, agency officials, as part of the administrative routine, determine their priorities, establish enforcement strategies, form working groups and task forces, analyze and process information, recommend budgets, provide congressional testimony, give speeches, meet with members of various interest groups, and engage in myriad other activities that are necessary to fulfill their responsibilities, but that do not...
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Preface to the First Edition 7 results (showing 5 best matches)
- Administrative law is challenging for another reason: It is ambitious. The aspiration of administrative law is nothing less than to control the exercise of governmental power within the rule of law. Administrative law, like constitutional law, superimposes a legal framework on an incorrigibly political process. Administrative law and constitutional law thus experience similar difficulties in mediating the uneasy relationship between law and politics in American government.
- This book is written with the purpose of assisting law students and lawyers in overcoming these difficulties in the study of administrative law. Its goal is to organize and to develop the core components of administrative law in a way that renders this legal system both comprehensible and usable. With that goal in mind, I have discussed throughout the book (1) the historical development of administrative law and the administrative state; (2) the evolution of the essential principles of administrative law, with an emphasis, of course, on current doctrine; and (3) the contemporary controversies in administrative law. I also have included in each chapter diagrams that provide a visual organization of administrative law and the administrative process.
- There is a frustrating paradox that clouds the study of administrative law. On one hand, administrative agencies are ubiquitous at every level of government. No institution of government touches our lives as frequently or so pervasively. Every lawyer surely deals with administrative agencies, and thus with administrative law, in some way, at some time, during her or his practice. So do law students who venture into such courses as environmental law, labor law, and communications law.
- The “concise hornbook” concept has provided an ideal format to develop the essential principles of administrative law in the manner that I believe is appropriate for the study of this subject. This book covers what I consider to be the core of administrative law. I have attempted throughout the book to examine in an accessible yet sophisticated manner the subject areas and the principal cases that virtually every law school course in administrative law covers. In my 25 years or so of teaching administrative law, I have come to believe that the successful students are those who understand the essentials of the administrative law system. If students understand the logic of that system, as well as the fault lines within the system, they have a usable framework for handling any administrative law problem that may come their way.
- A final challenge in studying administrative law is that agencies, for all their familiarity, seem like alien creatures under the law. Although agencies do things that resemble what legislatures and courts do, they are decidedly different in makeup, and therefore in outlook, from those more familiar institutions. Agencies seem to inhabit the shadows of the three constitutional branches of government. And yet, understanding administrative law requires at least a basic sense of what administrative agencies are and what they do.
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Chapter 5. Formal Adjudication Under the Administrative Procedure Act 92 results (showing 5 best matches)
- Congress has protected the independence of administrative law judges as well by limiting the agencies’ supervisory authority over them. Agencies may not assign ALJs to “perform duties inconsistent with their duties and responsibilities as administrative law judges.” Nor may agencies cherry pick the case assignments of their administrative law judges: “[S]o far as practicable,” agencies must assign ALJs their cases “in rotation.”
- The creation of administrative law judges as “a special class of semi-independent subordinate hearing officers” was a central reform of the Administrative Procedure Act. Administrative law judges are “functionally comparable” to trial judges when they preside over formal adjudicatory hearings. Like a trial judge in a bench trial, an ALJ is the principal fact-finder and initial decision-maker in an administrative case. The powers of administrative law judges in presiding over formal hearings track those of a trial judge. Section 556(c) of the APA empowers ALJs to “administer oaths and affirmations”; issue subpoenas; control the taking of depositions; rule on procedural matters, evidentiary questions and offers of proof; hold settlement and other prehearing conferences; and generally, “regulate the course of the hearing.” Because Congress in section 556(c) vested these powers in administrative law judges, agencies cannot eliminate them.
- Noticeably absent from the APA’s short list of excludable evidence is hearsay. Agencies generally admit hearsay evidence, unless the evidence is so attenuated as to be irrelevant. And although some states follow the “residuum rule,” which prohibits administrative agencies from grounding decisions solely on hearsay evidence, there is no such prohibition in federal administrative law.
- The combination of law-enforcement and law-adjudication functions in administrative agencies raises legitimate concerns about the inherent fairness of agency adjudication. The “basic requirement of due process” that individuals be afforded a “fair trial in a fair tribunal” applies to administrative adjudication as well as to judicial trials. Yet in the typical administrative enforcement proceeding, the same agency investigates whether some person has engaged in unlawful conduct; prosecutes the person for that conduct; and ultimately decides whether the person’s conduct was unlawful. Such a combination of functions in a trial court would be unthinkable in the American judicial tradition. It nevertheless thrives as an inherent feature of contemporary administrative government.
- For an historical development of administrative hearing officers, see Daniel J. Gifford,
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Chapter 8. The Nature and Scope of Substantive Judicial Review 186 results (showing 5 best matches)
- Notwithstanding the awkwardness that it engenders, Congress’s choice of ordinary law courts over specialized tribunals for reviewing most agency decisions makes a profound statement about the nature and responsibility of administrative decision-making in the United States. Assigning courts of law the primary responsibility of reviewing the legality of administrative action brings agencies “into harmony with the totality of the law.” The requirement that agencies account for their actions in the law courts is the primary vehicle by which American administrative law enforces the rule of law. Although judges are not experts on the substance of the administrative matters that come before them, they are (or should be) attuned to their responsibility of ensuring that government officials observe the law when individual rights are at stake.
- Administrative law has avoided defining the scope of substantive judicial review of agency decisions, as such. Instead, it has divided agency decision-making into three elements, and has prescribed a distinct standard of review for each element. The Administrative Procedure Act describes the three elements of agency decision-making as involving agency decisions on questions of “fact,” “law,” and “discretion” (APA § 557(c)(A)). Although this APA reference concerns administrative decisions in formal proceedings, it is the premise of scope-of-review doctrine that every agency action—whether rulemaking or adjudication, formal or informal—requires agency decisions on questions of law, fact, and discretion.
- A reviewing court may be expected to intensify its reasonableness review when the factual findings of the administrative law judge are overturned during the administrative appeals process (see § 5.5). This is especially the case when the findings turn on the credibility of witnesses that the ALJ had observed during the hearing. The ALJ’s findings are part of the administrative record of the agency’s decision (APA § 557(c)), and thus they weigh against any contrary findings by the agency.
- For fuller consideration of the relative roles and merits of generalized and specialized courts in the administrative process, see Harold H. Bruff,
- There is one final factor contributing to the difficulty of substantive judicial review of agency action. The administrative process in the United States, unlike the practice in a number of countries, assigns judicial review authority primarily to courts of law rather than to specialized administrative courts. This choice requires generalist judges, who trained in the law, to review the non-legal decisions of specialist administrators who trained in the disciplines relevant to their decision-making. Judge David Bazelon of the D.C. Circuit memorably lamented the challenge of having “technically illiterate judges” reviewing the substance of scientifically sophisticated administrative decisions. Moreover, a generalist judge’s chance encounter with an administrative program on judicial review may lead to a distorted view of the nature and function of the program, risking a decision that impairs the operations of the agency.
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Chapter 7. The Availability and Timing of Judicial Review 89 results (showing 5 best matches)
- The final component of the traditional model of administrative law (see § 1.4) provides for judicial review of agency action (and sometimes inaction) to ensure its legality, and thus its legitimacy. This judicial role of testing the exercise of administrative power for its fidelity to law is crucial in a polity committed to the rule of law.
- from an administrative law perspective, see Henry P. Monaghan, Marbury
- as “a heartening sign” that federal common law “is receding in administrative law,” see Duffy,
- For a discussion of the prerogative writs providing for judicial review of administrative action, see L 165–93 (1965). For a discussion of judicial control of administrative action in early America, see Jerry L. Mashaw,
- Because statutes generally trump common law, reviewing courts will honor an act of Congress that eliminates the exhaustion requirement. The Administrative Procedure Act contains just such a provision. Section 704 provides that a plaintiff need not pursue an available administrative appeal from an adverse agency decision in order to seek judicial review of the decision pursuant to the APA, unless (1) an act of Congress expressly so requires or (2) the agency’s rules both require an administrative appeal and make the decision inoperative during the appeal. If the conditions of section 704 are not met, the doctrine of exhaustion of administrative remedies only applies “in cases not governed by the APA.”
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Chapter 2. Administrative Agencies in American Constitutional Government 127 results (showing 5 best matches)
- Administrative law provides the legal framework within which government officials affect individual rights. So does the Constitution. It should not be surprising, then, that administrative law contains a substantial constitutional component. Two constitutional doctrines play an especially significant role in administrative law—procedural due process and separation of powers. The former doctrine is considered in Chapter 3. Separation of powers is the subject of this chapter.
- The traditional model of administrative law thus helps to legitimate agency authority under the Constitution by aligning the administrative process with the process of governmental decision-making prescribed by the separation of powers: Congress enacts a law authorizing executive action that is subject to judicial review. But this alignment, as is often the case with the American Constitution, is a double-edged sword. While it provides constitutional legitimacy for the exercise of administrative power, it also imposes constitutional limits on the role that each governmental actor—Congress, the president, the courts, and the agencies themselves—can play in the administrative process.
- The primary constitutional function of the president, at least with respect to domestic affairs, is to enforce acts of Congress. Article II makes the president the Nation’s chief law enforcement officer by giving him or her the power, as well as the duty, to “take Care that the Laws be faithfully executed” (§ 3). The framers understood, of course, that the president would not personally administer the vast majority of the laws that the Constitution had placed under her or his care. They fully anticipated that Congress, drawing on its necessary and proper power, would create the administrative “departments” that actually would run the federal government. True to that constitutional design, Congress most often has vested the authority to administer statutory programs in a federal agency or in an agency official, rather than in the president. In the administrative state, agency officials, not the president, primarily exercise the executive power. The president largely fulfills ...laws...
- This does not mean, however, that the Seventh Amendment right to jury trial is limited to common law forms of action, circa 1776. The Court has interpreted the phrase “Suits at common law” to embrace In distinguishing between law and equity, the justices often have looked to the nature of the remedy at stake in the litigation. If a claim is for a money judgment, it typically (although not necessarily) is one of law rather than of equity. proceedings involving statutory claims for monetary relief, they have resisted Seventh Amendment challenges to administrative proceedings involving similar claims. According to the Court, “[J]ury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with [an agency’s] role in [a] statutory scheme.”
- As demonstrated by the Small Business Regulatory Enforcement Act of 1996, discussed in the previous section, Congress can pass, and often has passed, statutes that impose generally applicable requirements on agency decision-making. In fact, much of administrative law is the product of just such an enactment, the Administrative Procedure Act. Another prominent example of a generally applicable statute that has had a profound effect on the administrative process is the National Environmental Policy Act of 1969 (“NEPA”),
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Chapter 3. Due Process in the Administrative State 83 results (showing 5 best matches)
- The role of procedural due process in administrative law is not limited to the constitutional rights that it affords to individuals, however. The time-honored values served by due process—such as, the fairness of government action and the rule of law—pervade administrative law. As the remainder of this book manifests, due process values have deeply influenced Congress and the courts in their development and enforcement of the maze of sub-constitutional rules that govern the administrative process.
- The ancient guarantee that government officials may deprive individuals of their liberty or property only through due process of law occupies an important doctrinal position in administrative law. But as this chapter has shown, the procedural rights that the due process clauses provide to individuals are importantly limited as well. Procedural due process applies only to administrative adjudications, and then, only when an individual’s property interests or liberty interests are at risk of deprivation. And even when procedural due process applies, it often requires only informal administrative decision-making processes. In some instances, judicial remedies made available to individuals after an initial deprivation of a protected interest satisfy the procedural due process requirement.
- The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal government and the states, respectively, from depriving anyone of “life, liberty, or property, without due process of law.” In each amendment, the phrase “due process of law” has both a substantive and a procedural meaning. “Substantive due process,” as a general matter, prohibits the government from depriving individuals of their interests in liberty or property unless the government’s action is rationally related to a legitimate public purpose. and accordingly, substantive due process review is not a significant component of administrative law. Its principal service has been to provide a background principle underlying the more robust authority of reviewing courts under section 706(2)(A) of the Administrative Procedure Act to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (see § 8.8).
- Administrative Practice.
- Administrative regulations permitted Eldridge to contest the agency’s initial determination in a post-termination hearing before an administrative law judge. These were oral, evidentiary hearings, but they were not adversarial in nature. Agency staff was not represented by counsel, although the claimant was free to hire an attorney. Were Eldridge ultimately to prevail at the post-termination hearing by demonstrating his continuing disability, administrative regulations entitled him to retroactive benefits covering the period of his termination. But rather than challenge the termination of his disability benefits administratively, Eldridge filed suit, claiming that the government’s failure to offer him a trial-type hearing before the initial termination of benefits had violated his right to procedural due process. The lower courts, relying on
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Chapter 6. Informal Rulemaking Under the Administrative Procedure Act 92 results (showing 5 best matches)
- Congress’s removal of procedural constraints on the issuance of policy statements and interpretive rules reflects not only the nonlegislative character of these instruments, but also the desirability of their use in administrative governance. Policy statements and interpretive rules serve two basic functions. They promote administrative consistency by instructing agency personnel on how to apply broad or ambiguous laws. They also enhance administrative transparency by notifying interested members of the public of administrative policies and legal interpretations before the agency acts on them.
- was that “an authoritative departmental interpretation” acquires the status of “administrative common law.” If an authoritative administrative interpretation has the status of (common) law, a rule that changes the interpretation is a legislative rule, because it has the legal effect of changing the law. But again, in the APA construct, an interpretive rule simply states the agency’s view of what a statute or regulation means. It does not carry the force of law. It is binding neither on individuals nor on the agency itself. It does not have the status of law, regardless of how authoritative or long-standing the interpretation might be.
- The spare provisions of section 553 of the Administrative Procedure Act establishing a notice-and-comment process for informal rulemaking often are cited as one of the drafters’ most significant innovations. Federal agencies have issued rules with the force of law since the Founding, and by the time Congress enacted the APA in 1946, rulemaking was an established feature of the administrative landscape. Yet administrative rulemaking suffered from something of an identity crisis in 1946. Agencies often used formal adjudicatory proceedings to establish administrative policy. And when setting rates, a common form of administrative rulemaking at the time, enabling acts typically directed agencies, as in formal adjudication, to base their decisions solely on evidence admitted at a trial-type evidentiary hearing. On those occasions when agencies issued rules other than rates, Congress typically left administrators free to follow any process of their choosing. The rulemaking processes...
- In contrast to the APA’s procedures for formal agency proceedings, which adapt a judicial model of decision-making to the administrative process, the informal notice-and-comment procedures of section 553 prescribe a good-government legislative model for agency rulemaking. Section 553 represents a conception of “legislative due process” that attempts (1) to enhance the quality of administrative regulation (by increasing the flow of information between the public to the agency) even as it promises (2) to ensure the fairness of administrative regulation (by allowing interested persons to protect their interests by participating in the rulemaking In the end, the hope is that the written conversation between the regulators and the regulated structured by section 553 will promote “reasoned decision-making” by agencies when formulating rules with the force of law.
- reaffirmed the traditional model of administrative law (see § 1.4). The traditional model makes it the responsibility of Congress to establish the legal requirements for administrative action, either in a generally applicable statute such The agency has the responsibility of determining how best to fulfill its regulatory responsibilities within the legal boundaries marked by Congress. The court’s role is to review administrative actions to ensure they remain within those boundaries.
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Table of Contents 34 results (showing 5 best matches)
- § 1.5 A History of the American Administrative State and of American Administrative Law
- Chapter 1. An Introduction to the Study of Administrative Law
- § 1.1 What Is Administrative Law?
- § 1.4 The “Traditional Model” of Administrative Law
- (b) Separation-of-Functions Limitations on Administrative Law Judges in Formal Adjudicatory Proceedings
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Preface to the Second Edition 4 results
- There have not been additions or subtractions to core administrative law principles since publication of the first edition, so the basic coverage of the second edition is the same as the first (although I have added new sections where appropriate). No area of law remains static, of course, and the second edition includes all of the significant developments in administrative law since the first edition. The second edition also incorporates the innovations of the Obama Administration regarding government administration.
- The second edition of this book is similar in intention and content to the original edition. The goal is still to provide a sophisticated yet accessible exposition of the essential principles of administrative law in a manner that will help to ground law students and anyone else who is new to the subject.
- Just as the courts and other decision-makers have continued to tweak administrative law doctrine and practice, I have taken the opportunity presented by writing a second edition to edit the text of the first edition, hopefully for the better.
- On a final note, I would like to express my gratitude to my research assistant, Ashley Bane (Tulane Law School Class of 2014) for her considerable work in helping me to complete the second edition.
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Chapter 4. The Administrative Procedure Act and the Procedural Forms of Agency Action 70 results (showing 5 best matches)
- Constitutional doctrine has an important but limited role in administrative law. While the original Constitution provided rules guiding the creation of administrative agencies and the exercise of administrative power, the framers to a considerable degree left the decisions on these questions for the political processes they had set in motion (see Chapter 2). Similarly, the guarantee of procedural due process in the amended Constitution provided important, but limited, protections of individual rights that government administration may put at risk (see Chapter 3).
- The drafters of the Administrative Procedure Act drew on the distinction between rulemaking and adjudication when they devised their procedural matrix for administrative action. The APA established two means by which administrative agencies may act with “the force of law.” Agencies may use rulemaking to establish “binding” norms of conduct, or they may create “binding precedents” through adjudication.
- presumption of informality for enabling acts that require an adjudicatory hearing without specifying that the agency’s decision must be on the record. But the deference to administrative interpretations of statutory hearing requirements prescribed by is hardly trouble-free. As a general matter, the extent to which, if at all, reviewing courts should defer to administrative interpretations of statutory provisions has long been a controversial issue in administrative law (see § 8.6). More specifically, although agencies have an especially valuable perspective in developing decision-making procedures for the programs they administer, they also suffer from something of a conflict of interest when defining the procedural requirements that Congress has imposed on them. Left unchecked, agencies might develop a bias in favor of informality, elevating their concerns with administrative efficiency over congressional concerns for the rights of individuals who are party to administrative...
- Administrative agencies may act with the force of law either by issuing rules of conduct or by resolving particular matters in adjudication.
- found the Department’s “need for efficiency [to be] self-evident,” citing an annual disability caseload of 2.3 million claims, with over a quarter of a million of these claims receiving a hearing before an administrative law judge.
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Chapter 2. Administrative Agencies in American Constitutional Government Part 2 26 results (showing 5 best matches)
- The Reformation of American Administrative Law
- Presidential Management of the Administrative State: The Not-So-Unitary Executive
- Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., concurring). For an across-the-board attack on the constitutionality of the modern administrative state, see Gary Lawson,
- Legislative Delegation, The Unitary Executive, and the Legitimacy of the Administrative State
- 5 U.S.C. § 801(a)(1) (A)–(B). The act adopts the definition of “agency” provided by the Administrative Procedure Act, 5 U.S.C. § 551(1). 5 U.S.C. § 804 (1). For a discussion of the APA definition of “agency,” see § 1.2.
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Index 7 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: July 25th, 2014
- ISBN: 9780314286093
- Subject: Administrative Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book provides an accessible, yet sophisticated treatment of the essential principles of administrative law. Topics covered include a history of the American administrative state; theories of agency behavior; separation of powers and procedural due process, as they are implicated by the administrative process; the procedural framework of the Administrative Procedure Act; formal adjudicatory procedure; informal rulemaking procedure; and the availability, timing, and scope of judicial review. The book includes charts and diagrams that assist the reader in visualizing the major elements of the administrative process.