Administrative Law and Process in a Nutshell
Authors:
Levin, Ronald M. / Lubbers, Jeffrey S.
Edition:
6th
Copyright Date:
2017
22 chapters
have results for Administrative Law and Process
Chapter VI. Procedural Due Process 69 results (showing 5 best matches)
- If these and certain other threshold issues are surmounted, the question becomes one of determining what process is “due” under the particular circumstances. This question is often difficult to answer, however, because modern administrative law tries to take account of the enormous diversity of situations in which due process claims can be advanced. Regulatory decisions affect a wide variety of private interests, and the government’s justifications for summary action also differ from one setting to the next. In addition, a particular procedural right, such as the opportunity to confront and cross-examine adverse witnesses or the right to be heard by an impartial decisionmaker, may enhance the accuracy and fairness of the process more substantially in one setting than in another. Consequently, due process rights in administrative law can vary enormously, depending on the context in which they are asserted.
- As the Court has struggled with a growing workload of procedural due process cases, it has attracted criticism for both the methods and the goals of its analyses. The utilitarian interest-balancing of the and decisions, which remains the dominant approach to due process today, has the advantage of being flexible in application and functional in approach. It asks important questions about what improvements in accuracy and fairness will result from the use of particular procedural devices, and how much it will cost the agency and the public to provide the requested rights. However, the Court’s due process analysis has some significant shortcomings as well. By looking to positive law—primarily statutes and administrative regulations—as the principal source of the entitlements protected by due process, the Court’s approach not only makes it easy for legislators and administrators to deprive claimants of procedural protections, but also creates a positive incentive for them to do so....
- A broader position, long urged by Professor Davis, is that due process generally does not require a trial on issues of “legislative fact” arising during an adjudication. 2 Kenneth Culp Davis, Administrative Law Treatise § 12.5 (2d ed.1979). “Legislative” facts are general facts bearing upon issues of law or policy; they are contrasted with “adjudicative facts,” which are facts about the specific parties to the case. The extent to which the Davis theory may be an overstatement has never been definitively resolved in the case law. The significance of this controversy has waned, however, as agencies have increasingly resolved legislative fact controversies through the rulemaking process, where the curtailment of due process rights is more firmly established. See pp. 221–224 supra.
- The Constitution is the source of many of the procedural principles that administrative agencies must observe. The Fifth Amendment, applicable to the federal agencies, provides that no person shall “be deprived of life, liberty, or property, without due process of law,” and the Fourteenth Amendment contains a similar limitation on state action. The concept of procedural due process implies that official action must meet minimum standards of fairness to the individual, such as the right to adequate notice and a meaningful opportunity to be heard before a decision is made. This constitutional doctrine gives federal courts a potent tool with which to oversee the decisionmaking procedures of federal agencies when the applicable statutes and regulations permit the administrator to act informally. Equally important, the doctrine gives the federal judiciary a measure of control over the decisionmaking methods of state and local agencies, which otherwise are governed almost exclusively by...
- Administrative law sets great store by reasoned findings accompanying agency decisions, and this attitude is reflected in due process doctrine. In a formal adjudication governed by the APA, the agency’s decision must include a statement of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” . Due process requires the agency to consider the evidence elicited at the hearing when it makes its final decision. . A statement of reasons may be important not only to the perceived fairness of the process, but also to the quality of the decision. The need to prepare a written explanation may impose some discipline on the agency, by pressuring decisionmakers to consider the evidence more carefully and to examine the legal and policy justification for the action more closely. When the grounds for the decision are committed to writing, it is easier for a higher level administrator to review it, and thereby...
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Introduction 12 results (showing 5 best matches)
- However, these potential strengths of the administrative process can also be viewed as a threat to other important values. Administrative “flexibility” may simply be a mask for unchecked power, and in our society unrestrained government power has traditionally been viewed with great and justifiable suspicion. Thus, the fundamental policy problem of the administrative process is how to design a system of checks which will minimize the risks of bureaucratic arbitrariness and overreaching, while preserving for the agencies the flexibility they need to act effectively. Administrative law concerns the legal checks that are used to control and limit the powers of government agencies.
- The primary focus of this text is on federal administrative agencies. As a practical matter, the numerous variations in state law make it impossible to cover the subject adequately in a brief survey. In any case, the basic objective of this book is to help the student of the administrative process develop a framework of general principles, policy considerations and methods of analysis that will be useful in understanding a wide variety of administrative agency procedures, regardless of whether they are found at the federal, state or local level.
- These substantive problems of administrative regulation are important and interesting, but they are largely beyond the scope of this text. This explanation of the administrative process will concentrate on how it operates, on “the rules of the game.” There is admittedly artificiality and oversimplification in this approach. Administrative law as applied by the agencies and the courts cannot be separated from the particular mix of factors that make each agency unique—factors such as the nature of the agency’s legislative mandate, its structure and traditions, the values and personalities of the people who work in the agency or deal with it regularly, and, most importantly, its substantive law. Even the procedural uniformity imposed on the federal agencies by the Administrative Procedure Act, 5 U.S.C. §§ 551–706 (see statutory appendix), seems to have weakened, as the Congress has at times been willing to prescribe detailed codes of procedure in enabling legislation and have added...
- The primary reason why administrative agencies have so frequently been called upon to deal with such diverse social problems is the great flexibility of the regulatory process. In comparison to courts or legislatures or elected executive officials, administrative agencies have several institutional strengths that equip them to deal with complex problems. Perhaps the most important of these strengths is specialized staffing: an agency is authorized to hire people with whatever mix of talents, skills and experience it needs to get the job done. Moreover, because the agency has responsibility for a limited area of public policy, it can develop the expertise that comes from continued exposure to a problem area. An agency’s regulatory techniques and decisionmaking procedures can also be tailored to meet the problem at hand. Agencies can control entry into a field by requiring a license to undertake specified activities; they can set standards, adjudicate violations, and impose penalties;...
- Still, there is something useful to be gained from the effort to view the administrative process as a whole. The student, the lawyer, or the citizen who is trying to penetrate the workings of an unfamiliar bureaucracy needs a general framework of principles and doctrines in order to understand—let alone to criticize or try to change—a given agency decisionmaking process. It is also important to remember that, despite their many differences, agencies also share several broad challenges. One is to design procedures that will strike a workable compromise among important and potentially conflicting public values. These values can be grouped into four categories.
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Appendix. Selected Constitutional and Statutory Provisions 143 results (showing 5 best matches)
- Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.
- An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board. . . . [Actions covered include removal, suspension, and reduction in grade or pay.]
- An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies.
- no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;
- no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be
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Chapter VII. Formal Adjudications 67 results (showing 5 best matches)
- In court litigation, decisions are essentially personal: the trial judge who issues findings and conclusions has heard the presentation of evidence and has also reviewed the relevant points of law personally, perhaps with the aid of one or two clerks. Even on appeal, the judges who make the decision and the clerks who assist them listen to arguments and review records and briefs themselves. Administrative agencies are not designed to function like courts, however, and even in formal adjudications the process of decision may be much different from the judicial model. The administrative decisionmaking process is often described as an “institutional decision,” in recognition of the fact that it is the product of a bureaucracy rather than of a single person or a small group of identifiable people.
- The APA as originally enacted did not deal explicitly with ex parte contacts, and as a result claims of improper ex parte influence were generally evaluated under the due process clause of the Constitution. See, e.g. . In 1976, however, the APA was amended and now contains detailed provisions governing ex parte contacts in formal adjudications. prohibits any “interested person outside the agency” from making, or knowingly causing, “any ex parte communication relevant to the merits of the proceeding” to any decisionmaking official. It also prohibits agency decisionmakers (defined to include any “member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process”) from communicating with outside parties under similar circumstances. The prohibitions on ex parte contacts come into play when a proceeding has been noticed for hearing, unless the agency has designated some earlier time.
- In broad outline, the form of many agency adjudications resembles that of a court trial. After the prehearing stage of pleadings, motions, and prehearing conferences is completed, an oral hearing is held before an official who is called a judge. The agency and the respondent are represented by counsel who introduce testimony and exhibits. Witnesses may be cross-examined, objections may be raised, and rulings issued. At the conclusion of the testimony, the parties submit proposed findings and conclusions and legal briefs to the presiding officer. The administrative law judge then renders her initial decision, which may be appealed to the agency heads. Beneath these surface similarities, however, there are significant differences between judicial and administrative adjudications.
- The procedures used by administrative agencies to adjudicate individual claims or cases are extremely diverse. Hearing procedures are shaped by the subject matter of the controversy, the agency’s traditions and policies, the applicable statutes and regulations, and the requirements imposed by reviewing courts. Thus, any general description of administrative adjudications must be subject to numerous exceptions and qualifications.
- Within the federal system, sections 554, 556, and 557 of the APA establish some minimum procedures for administrative adjudications. Proceedings held according to this set of standards are generally known as “formal adjudications.” Formal adjudications are also called “evidentiary hearings,” “full hearings,” “on-the-record hearings,” or “trial-type hearings.” The last of these terms is probably the most accurate and descriptive. Typically, such cases involve proceedings conducted by an administrative law judge (ALJ) in a manner that resembles the trial phase of civil litigation, followed by an appeal to the agency head or another reviewing authority. At the same time, as will be seen below, there are also significant differences between agency trial-type hearings and court trials.
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Title Page 3 results
Preface 3 results
- Administrative Law and Process in a Nutshell
- Ernie was a mentor to both of us through his leadership roles in both the ABA Section of Administrative Law and Regulatory Practice and the Administrative Conference of the United States. But he also commanded broad respect as a professor, law school dean three times over, managing partner of a major law office, and leader in the administrative law bar. His familiarity with the worlds of both scholarship and practice enriched his writing and caused his views to be widely sought out. It was a privilege to work with him, and this edition is respectfully dedicated to his memory.
- R.M.L. and J.S.L.
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Chapter V. The Informal Administrative Process 57 results (showing 5 best matches)
- An effective system for resolving disputes administratively, and for establishing some quality control over routine decisions, is essential if the claims processing agencies are to avoid paralysis. However, efforts to upgrade the system as a whole through management supervision can also threaten strongly felt commitments to the ideal of resolving individual cases fairly by giving the claimant a trial-type hearing. One example of this tension surfaced during the early 1980s, when the Social Security Administration decisions by “targeting” for administrative review administrative law judges whose allowance rates exceeded the statistical average for all ALJs. This “Bellmon review” process resulted in a series of suits claiming that the focus on high allowance rates compromised the impartiality of the ALJs, and thereby denied the claimants a fair hearing. See p. 270 infra.
- One of the most common reasons for creating administrative agencies is to provide for the fast processing of large numbers of claims and applications. The agencies that are responsible for dispensing social welfare benefits, collecting taxes, and controlling immigration make millions of informal decisions each year, and these decisions significantly affect the lives of virtually all Americans.
- As SSA adjudication backlogs have risen to alarming levels, the agency has taken steps to reduce wide disparity among some of its ALJs in their grant and denial rates. Proposals for reform ranging from creation of a Social Security Court to rethinking the use of ALJs in such hearings have been aired. ACUS has issued a series of recommendations to improve the current process incrementally, such as greater reliance on video hearings, and better case management. Similar backlogs and decisional disparities have plagued other high-volume adjudicative programs in the Medicare, veterans, immigration, and black lung contexts. Attaining the ideal mix of fairness and efficiency in such programs remains one of the most intractable challenges in administrative law.
- The term “informal” is somewhat misleading, because many of the activities that technically fall within this category are subject to significant legal controls. Agencies often impose procedural constraints on their own discretion by issuing rules of practice, staff manuals, or instructions to the public. These procedural requirements may create opportunities for interested persons to be heard, and they may be legally binding, so that a failure to observe them can be reversed by a reviewing court. Moreover, the due process clauses of the Constitution require the agencies to meet basic standards of fairness when they affect the life, liberty, or property of individuals. The application of procedural due process to informal administrative action is treated in Chapter 6. The
- A person seeking a driver’s license must usually pass a written exam, an eyesight check, and a driving test. All of these are administered by trained inspectors who do not use formal judicialized procedures in making the decision to grant or deny the license. Routine use of trial-type hearings for these kinds of decisions would be not only slow and cumbersome, but also pointless: courtroom procedures such as sworn testimony and cross-examination would contribute relatively little to the straightforward processes of measurement and observation that are the basis of many administrative decisions.
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Chapter X. Obtaining Judicial Review 82 results (showing 5 best matches)
- A party seeking court reversal of an administrative decision may be met at the threshold with a series of technical defenses that could bar the court from reaching the merits of her claim. This complex and often overlapping set of doctrines is intended primarily to define the proper boundaries between courts and agencies—that is, to keep the courts from exceeding the limits of their institutional competence and intruding too deeply into the workings of the other branches of government. For example, administrators often make political or bargained decisions that do not readily lend themselves to judicial scrutiny. Parties sometimes seek judicial review of agency decisions in which they have no real stake. Or they seek review prematurely, creating a risk of early judicial intervention that could frustrate or delay the administrative process, and waste judicial resources. To deal with these kinds of problems, the courts have developed doctrines such as unreviewability, standing,...
- Even when an agency’s decision is reviewable and the plaintiff has standing to litigate, she may still be unable to get judicial review if she has brought the action at the wrong time. Finality, exhaustion, and ripeness are complementary doctrines that are designed to prevent unnecessary or untimely judicial interference in the administrative process. Theoretically, each of these three doctrines has a different focus and a different basis. The finality doctrine is primarily concerned with ensuring that the agency has reached a definitive, rather than preliminary or tentative, disposition of a particular case or issue. The exhaustion doctrine emphasizes the conduct of the party seeking review; in essence, it asks whether the appeal is an attempt to short-circuit the administrative process and whether the challenger has been reasonably diligent in pursuing relief through that process. And ripeness calls for a pragmatic judgment: it weighs the urgency of the challenger’s need for...
- proceedings should be barred from litigating an issue that could have been raised earlier in an administrative forum. In , a draft registrant had failed to appeal his Selective Service reclassification from an exempt category to one that made him eligible for induction. He was prosecuted for draft evasion, and the government argued that the court should not entertain his claim to be exempt, because he had failed to exhaust his remedies within the Selective Service System . The Supreme Court, however, was reluctant to penalize a failure to exhaust when criminal sanctions were at issue, because the consequences of doing so could be severe: “The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order.” Moreover, the issues involved were straightforward questions of law that did not require the exercise of administrative expertise. Weighing these considerations, and the likelihood that few registrants would try...
- A person bringing a court challenge to an administrative decision must have standing to seek judicial review. The standing doctrine is a complex and frequently changing body of law, which has both a constitutional and a common law basis. The constitutional source of the standing doctrine is Article III, § 2 of the Constitution, which limits the federal judicial power to “cases” and “controversies.” The American judicial process is an adversary system, which depends upon the litigants to gather and present the information needed for a sound decision. The “case or controversy” limitation, as embodied in the standing doctrine, seeks to assure sufficient opposition between the parties to make this system function properly. In addition, the law of standing is intended to help keep the judiciary within its proper orbit, so that the political branches of government will not be dominated by an “antimajoritarian” judiciary.
- The ripeness doctrine typically comes into play when a party challenges a rule or other statement that an agency has made at a relatively early stage of the regulatory process, prior to actually seeking to enforce its policy against a given individual. The question becomes whether the court should allow the issue raised by the plaintiff to “ripen” until some later stage in the process. Practical considerations may weigh heavily in favor of postponement. The implications of an agency’s legal or policy pronouncement often become clearer as it is implemented. Its scope may be ambiguous (perhaps because the agency intended to leave some points unsettled), and its consequences difficult to predict. Consequently, a court may feel that it could render a more reliable decision on the validity of the pronouncement if it were to await further developments. Or perhaps the anticipated collision between the plaintiff and the government would not occur at all, and the court could avoid an...
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Chapter II. Political Controls over Agency Action 54 results (showing 5 best matches)
- While there are numerous examples of legislatures and chief executives taking formal action to bring regulatory policy into accord with changing political realities, the network of less formal and less visible political “oversight” mechanisms is probably more important in the day-to-day functioning of the administrative process. There are numerous procedures and practices which bring the activities of the agencies to the attention of elected officials and their staffs, and in most regulatory settings the continuing dialogue that results from this process is an important determinant of public policy. Here, the role of law and legal rules has been to channel this interaction within limited boundaries—for example, by restricting
- in mind some basic differences between judicial and political methods for making regulatory bureaucracies accountable. Judicial review seeks to assure that agency action is consistent with principles expressed in constitutional mandates or properly enacted statutes. Political oversight is not limited to these formal directives; a newly elected President, for example, is expected to bring new people and new policies into the regulatory process even if the basic statutes remain the same. Moreover, judicial review usually is based on the premise that agency actions are reasoned decisions that result from a process of finding facts and applying generally accepted principles to them. Courts cannot easily review decisions that are the result of bargaining or compromise or pure policy choice. Compromise and choice among competing values are the essence of the political process, and for these kinds of issues, political methods for making and legitimizing decisions are essential. The...
- During the 1970s, many members of Congress began to feel that the normal process of legislation was too cumbersome for effective control of administrative action. The solution they favored was increased reliance on an old device: the so-called “legislative veto.” These provisions took a variety of forms, but most of them directed agencies to transmit final administrative rules to the Congress for review before they became effective. The vote of two chambers, or sometimes only one (or even a committee or a committee chairman) would be enough to kill the rule.
- In the day-to-day functioning of the administrative process, the President’s power of persuasion and the other less drastic tools of executive oversight are usually more significant factors than the threat of removal. Exercise of these oversight powers often takes the form of an executive order—a formal directive from the President to federal agencies or officials. For example, Presidents George H.W. Bush and Bill Clinton each issued orders instructing agencies to minimize litigation by making liberal use of settlement and alternative dispute resolution. Depending upon the context, a particular executive order may be based either on an inherent constitutional power of the President, or on an express or implicit delegation from Congress.
- On the other hand, Presidents sometimes have to put up with high-ranking executive officials whom they have the legal right to fire, because a dismissal would be politically costly, particularly if the administrator has the support of a powerful constituency. Finally, it should be noted that both executive and independent agencies are governed by the same APA procedures and are reviewed in the same fashion by the courts. Thus, the distinction between the two has little relevance to the vast majority of the principles of administrative law.
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Chapter III. The Scope of Judicial Review 87 results (showing 5 best matches)
- Like the regulatory process, judicial review has evolved over a period of years into a complex and not completely coherent system. A series of statutory, constitutional, and judicial doctrines have been developed to define the proper boundaries on judicial oversight of administration. In some areas, the courts may lack institutional competence to review an administrative action because the decision in question is political, or the plaintiff is asking the court to render an advisory opinion; in other instances, the court may decline to intervene until the administrative process has had a chance to run its course. On the whole, however, the trend in modern statutes and judicial decisions is to make judicial review more widely and easily available. This trend, and its limits, will be examined in Chapter 10 of this text.
- In an informal rulemaking proceeding, the administrative record will generally consist of the notice of proposed rulemaking, the final rule and accompanying statement of basis and purpose, the comments filed by the public, and any unprivileged working papers prepared by the agency itself. The rule will pass muster under the arbitrary and capricious test if this record contains evidence that could lead a reasonable person to accept the factual premises of the regulation (taking into account the evidence submitted by opponents of the rule). agency’s obligation to assemble such evidence has turned modern rulemaking into a more formalized, adversarial process than the framers of the APA anticipated. However, administrative record concept was an essential step in the development of “hard look” review of rulemaking. Intensive scrutiny of an agency’s reasoning process would scarcely be meaningful if the agency did not have to defend its exercise of discretion by reference to facts that...
- To understand the complex assortment of administrative law doctrines on judicial review, one must begin with the realization that most administrative decisions result from a series of determinations on the agency’s part. Typically, an agency
- the courts must carefully scrutinize administrative opinions, they generally will not probe for motives hidden beneath the surface of those opinions. The principle was established in lengthy litigation involving ratesetting by the Secretary of Agriculture. Initially, the Court authorized the district court to investigate allegations that the Secretary had issued his decision without reading the briefs or considering the evidence. After remand, however, the Court reconsidered, declaring that “it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing that the law required.” controversy came before it for a fourth time several years later. Just as a judge cannot be deposed or cross-examined about his decisions, “so the integrity of the administrative process must be equally respected.”
- An agency can write opinions to explain its actions, generate and follow its own precedents, and structure its discretion through rules and standards. Thus, a court can, and often will, hold the agency to observe high standards of “reasoned decisionmaking.” This also means, however, that the agency can itself play a lawmaking role, rivaling the court’s role. Questions about the manner in which these two branches of government should share norm-setting authority have been a major source of debate during the modern history of administrative law.
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Index 133 results (showing 5 best matches)
- See Informal Administrative Process, Contracts and grants; Rulemaking, Grants and benefits, rules affecting
- See Informal Administrative Process, Contracts and grants; Rulemaking, Grants and benefits, rules affecting
- See Informal Administrative Process, Tests and inspections; Investigations, Inspections and searches
- See Informal Administrative Process, Administrative judges
- See Informal Administrative Process, Negotiation and settlement
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Chapter IX. Rules and Rulemaking 68 results (showing 5 best matches)
- To be sure, there are also many observers who support the wide-ranging analyses that the legislative, executive, and judicial branches have induced agencies to prepare in significant rulemaking proceedings. They see these requirements as a necessary response to deficiencies in the thoroughness and wisdom of agency policymaking. The fundamental problem, then, is to determine how society can maintain adequate controls on the rulemaking process while not interfering unduly with agencies’ ability to carry out their assigned missions. The lack of consensus among administrative lawyers on this issue should not be surprising. As the crucible of some of society’s most important collective decisions, the administrative rulemaking process has quite naturally emerged as a focal point for major debates over the future of the regulatory state. As our nation’s politics have become more polarized, rulemaking procedures have become the focal point for disputes in Congress over the need ...and...
- The growth of rulemaking gave rise to a searching reexamination of the adequacy of the procedures that agencies followed in adopting rules. Courts and legislatures became more willing to experiment with new variations on the APA’s procedural models, as they sought to accommodate traditional rulemaking practices to the new kinds of decisions that agencies were making. Eventually this wave of procedural reform ebbed in significance, at least within the courts. Meanwhile, other innovations emerged, such as e-rulemaking, negotiated rulemaking, and intensified executive oversight. To this day, the rulemaking process remains one of the most contentious areas of administrative law.
- The rise and fall of faith in procedural formality, which was so prominent in the debate over participation rights, has been replicated in other controversies concerning the rulemaking process. For example, § 553 of the APA says nothing about the problems of ex parte contacts and administrative bias. As rulemaking grew in importance during the 1970s, however, it was often argued that courts should devise safeguards in those areas, borrowing from the principles enforced in formal adjudications. See generally pp. 274–289 supra. The debate was a vigorous one, for important procedural values were at stake on both sides of the issues. Ultimately, however, the balance seems to have been struck decisively on the side of administrative flexibility in the rulemaking setting.
- Section 553(c) of the APA contains an exception to the general principle that administrative rulemaking requires, at most, a notice-and-comment process. It states that “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing,” the agency must follow sections 556 and 557 of the APA—that is, it must afford most of the procedures required in formal adjudication. Thus, when some other statute (usually the one that delegates rulemaking authority) directs the agency to do so, it must conduct a trial-type hearing and provide interested persons with an opportunity to testify and cross-examine adverse witnesses before issuing a rule. (See chart on p. 249.) This process is traditionally called “rulemaking on a record” or “formal rulemaking.” (It should be noted that as informal (notice-and-comment) rulemaking has become more complex, many popular accounts in the media refer to it, confusingly, as “formal rulemaking,” usually in contradistinction...
- One of the most important developments in administrative law during the late twentieth century was the agencies’ growing reliance on rulemaking as a means of formulating policy. Much can be said in favor of this trend. As commentators have argued, the rulemaking process can be more efficient than case-by-case adjudication, because it can resolve a multiplicity of issues in a single proceeding. A clear general rule can produce rapid and uniform compliance among the affected firms or individuals; the scope of an adjudicative precedent may well be harder to define, because its reach will usually depend to some degree on the facts of a particular case. At the same time, rulemaking can provide individuals with important protection. “When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. . . . [The use of rulemaking] provides [regulated persons] with more...
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Chapter VIII. Procedural Shortcuts 17 results (showing 5 best matches)
- In drawing conclusions from a record, administrative law judges and agencies may rely on their special skills in engineering, economics, medicine, etc., just as judges may freely use their legal skills in reading statutes and applying decided cases in the preparation of their opinions. They also resort to theories, predictions, and intuitions that are inherently incapable of exact proof. See pp. 119–121 supra. Properly speaking, however, these evaluations and insights are not within the concept of official notice. Rather, official notice comes into play when an agency that have documented one of its factual premises on the record chooses to avoid that process for efficiency reasons.
- In the same manner that courts can bypass the normal process of proof by taking judicial notice of facts, administrative agencies sometimes overcome deficiencies in the record of a formal proceeding by taking “official notice” of material facts. Indeed, agencies enjoy considerably wider power than courts to dispense with formal proof. In federal courts, for example, the rules of evidence limit judicial notice of adjudicative facts to propositions that are “beyond reasonable dispute, in that [they are] either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” . These strict limits are unsuitable for administrative agencies, which often are created precisely so that they can become repositories of knowledge and expertise. Because they are continuously active in the fields of their specialties, agency officials are frequently aware of extra-...
- It is sometimes argued that an agency should have especially broad freedom to take official notice of “legislative” facts (general facts bearing on law or policy) as opposed to “adjudicative” facts (facts concerning the immediate parties to a case). This proposition is implicit in the above-mentioned evidence rule, which applies only to adjudicative facts and thus imposes no curbs at all on judicial notice of legislative facts. . The distinction rests on the widely held belief that trial-type processes are relatively unhelpful in the development of legislative facts (see pp. 235–236 supra), and thus may be foregone more readily when an agency wants to rely on such facts. Indeed, the procedures for taking official notice in an adjudication, described later in this section, closely resemble the procedures that agencies typically use in the rulemaking process, which is expressly designed for resolution of legislative fact issues.
- Many administrative statutes contain clauses conferring broad rights to trial-type hearings. Administrative hearings, however, can be costly in time, manpower, and other resources, and they sometimes make only a marginal contribution to the quality of information available or to the acceptability of the final decision. Thus, agencies often have an incentive to develop procedural techniques for avoiding unnecessary hearings or for narrowing the issues that will be considered in a formal setting. Several such techniques are examined in this chapter.
- The Court followed similar principles when it upheld the “medical-vocational guidelines” used by the Secretary of Health and Human Services in the Social Security disability program. and physical ability. The guidelines, also known as “grid regulations,” listed numerous combinations of the four threshold variables and stated, for each combination, whether a worker with those qualifications was employable. Thus, administrative law judges hearing disability benefits claims would no longer rely on expert testimony in deciding whether a claimant was employable; instead, they would simply make findings concerning the four variables, and reference to the guidelines would then automatically determine whether the claimant was entitled to benefits. The Court concluded that, although the Act states that the disability determination is to be made on the basis of evidence adduced at a hearing, this provision “does not bar the Secretary from relying on rulemaking to resolve certain classes of...
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Chapter IV. Acquiring and Disclosing Information 54 results (showing 5 best matches)
- and recognized that inspections are essential to effective enforcement of health and sanitary standards and that the concepts of probable cause developed in criminal law enforcement could not be mechanically applied to these administrative searches. In place of the criminal law standard requiring a showing of probable cause to believe that a violation had occurred and that fruits, instrumentalities, or evidence of a crime would be recovered at the place specified, the Court established the rule that an administrative search warrant could issue when “reasonable legislative or administrative standards for conducting an area inspection are satisfied.” The standards would vary according to the nature of the regulatory program, and they might be based upon factors such as “the passage of time, the nature of the building . . . , or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.”
- The Investigation Must Be Authorized by Law and Undertaken for a Legitimate Purpose.
- Many agencies gather information through direct observation. Administrative inspections cover a wide range of activity, including safety tests of commercial equipment and personal cars, sanitary inspections of restaurants and hotels, environmental monitoring of factory emissions, and fire and health checks of apartments and homes. Although they are occasionally used for law enforcement purposes, the primary function of administrative inspections is to prevent and correct undesirable conditions. Physical inspections or tests may also take the place of formal hearings. The Administrative Procedure Act provides an exception to the Act’s trial-type hearing procedures when an adjudicative decision “rest[s] solely on inspections [or] tests.” Regardless of the reason for which it is undertaken, however, an administrative inspection must not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, nor its requirement that search warrants may be issued only upon a...
- Another source of difficulty is the fact that agencies use a variety of techniques for gathering data, and these techniques vary in their burdensomeness and intrusion on protected interests. In some Federal Trade Commission investigations, for example, the Commission can issue subpoenas for documents or testimony, or it can demand to inspect records in the office where they are kept, or it can require companies to fill out special “report orders”; in other instances, the FTC can issue “civil investigative demands” that are subject to different standards and procedures; and presiding officers in adjudicative proceedings can issue discovery orders much like those used in federal courts. Other agencies, particularly those enforcing health and safety regulations, have the power to inspect facilities and seize suspicious goods. As might be expected, the courts’ attempts to adapt the constitutional protections to the administrative process have produced a large and not entirely consistent...
- The power to compel private parties to submit information, like other administrative powers, must be based upon a valid legislative delegation of authority, and the agency must observe the standards and procedures specified in the relevant statutes. Traditionally, however, Congress has granted the agencies wide discretion to investigate and compel disclosure of information; many statutes impose only minimal constraints on the agency’s use of compulsory process. Another source of legal limitations on agency data gathering is the Constitution. Because the government’s attempts to gather information can threaten constitutionally protected privacy interests, the agency’s activities must be measured against the requirements of the Fourth and Fifth Amendments.
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Chapter I. The Delegation of Authority to Agencies 34 results (showing 5 best matches)
- The study of administrative law can be viewed as an analysis of the limits placed on the powers and actions of administrative agencies. These limits are imposed in many ways, and it is important to remember that legal controls may be supplemented or replaced by political checks on agency decisions. One set of legal controls that we will examine at length is the procedures that reviewing courts have required the agencies to use. Another is the rules specified by Congress in the Administrative Procedure Act (APA) and other statutes. Conceptually, however, the first question that should be examined is the amount of legislative or judicial power that can be entrusted initially to the agency by the legislature—the governmental body creating it.
- and decisions, the Court placed considerable emphasis on the fact that the statutes did not require the President to use fair and open administrative procedures and explain his decisions clearly. This theme was also reflected in the under the due process clause. See pp. 239–242 infra. the presumed availability of judicial review under the APA supported the validity of the delegation, because it ensured that administrative standards could be tested for rationality and compliance with the congressional intent, and that the agency’s consistency in interpreting and applying those standards in particular cases could be checked.
- Such delegations raise fundamental questions concerning the constitutional distribution of authority in our system of government. The federal Constitution, and most state constitutions as well, are based on the principle of separation of powers. Generally, law-making power is assigned to the legislature, law-enforcing power to the executive, and law-deciding power to the judiciary. With responsibility divided in this fashion, each branch theoretically provides checks and balances on the exercise of power by the other two branches. The combined powers of administrative agencies seem, at least formally, at odds with the three-part paradigm of government.
- unsound and unworkable. For many regulatory problems, the legislature can neither foresee what actions the agency should take, nor constantly revise the statutory mandate as conditions change. Even when the policy alternatives are reasonably clear, an attempt to write highly detailed standards in the legislature may delay the passage of desired legislation, or jeopardize its chances for enactment. The nondelegation doctrine remains available as an threat—and could be used in truly extreme cases. For most situations, however, the more immediate—and more pragmatic—task for Administrative Law is to evaluate and further refine the doctrines and techniques for making bureaucratic power accountable, without destroying the effectiveness of those administrative agencies considered necessary.
- While the courts have seldom articulated why they have failed to accept the challenge of Justice Rehnquist and others, three possible explanations can be suggested. First, some courts probably continue to believe that broad delegations are on the whole desirable, because they make maximum use of the flexibility that the administrative process affords. See pp. 9–12 supra. Indeed, it has been argued that broad delegations are not even necessarily undemocratic, as Rehnquist claimed. Many of them can be seen as simply shifting policymaking discretion to appointees of the President, who has his or her own electoral base. In other words, vague delegations can at times be defended as a means of giving an incumbent Administration the latitude it needs if it is to implement the President’s electoral mandate.
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Outline 29 results (showing 5 best matches)
Table of Cases 5 results
- Association of Administrative Law Judges v. Heckler, 270
- Association of Data Processing Serv. Orgs. v. Board of, Govs., 124
- Association of Data Processing Serv. Orgs. v. Camp, 377
- Process Gas Consumers Group v. Consumer Energy Council, 38
- NLRB v. United Food and Commercial Workers Local 23, 174
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WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 11 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus,
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Yale Law School
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Table of Agencies 12 results (showing 5 best matches)
- Administrative Conference of the United States, 156, 178, 182, 193, 200, 254, 318–19, 320, 321–22, 335, 343, 400
- Federal Savings and Loan Insurance Corporation, 397
- Fish and Wildlife Service, 386, 390, 392
- Food and Drug Administration, 36, 41, 85, 114, 134, 298–99, 328, 331, 371, 402–03
- Health and Human Services, Department of, 86, 188, 199–200, 295–97, 365
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Copyright Page 3 results
- and the Nutshell Logo are trademarks registered in the U.S. Patent and Trademark Office.
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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- Publication Date: December 30th, 2016
- ISBN: 9781628103557
- Subject: Administrative Law
- Series: Nutshells
- Type: Overviews
- Description: This book offers a concise, knowledgeable guide to administrative law. In straightforward, readable prose, the authors not only summarize the dominant statutes and case law in the area, but also discuss informal administrative processes and the background realities of the regulatory state. Students can use the book as a complement to any major casebook, and practitioners will also find it an excellent brief introduction to this complex and important subject.