United States administrative law
encompasses a number of statutes
which define the extent of the powers and responsibilities held by administrative agencies
of the United States Government
. The executive
, 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.
Scope of administrative authority
The authority of administrative agencies stems from their organic statute, and must be consistent with constitutional constraints and legislative intent. Generally speaking, therefore, agencies do not have the power to enact a regulation where:
- The regulation is an unconstitutional delegation of power;
- The organic statute explicitly denies authority (but note that failure to grant authority in later legislative efforts is not dispositive);
- Congress has enacted a separate regulatory scheme;
- 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: rulemaking
. The scope of these two categories is defined in three ways:
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:
Cases in which an act was ruled to be rulemaking:
Administrative Procedure Act
According to section 551 of the Administrative Procedure Act
- Rulemaking 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;"
- Adjudication is "an agency process for the formulation of an order;"
- An order in turn is "the whole or part of a final disposition ... of an agency in a matter other than rule making but including licensing;"
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 Process
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.
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 statute
, 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, .
Type of rulemaking
There are three types of rulemaking
- Formal rulemaking, which is rulemaking for which the organic statute 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 statute, 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
may have their own administrative law; for example, a state constitution
may allow the legislature
to delegate rulemaking
authority to an executive or independent agency, and state governments
may provide an administrative appeal
process for people who are dissatisfied with decisions made by certain state
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 & Publications
- Administrative Law Review is the official quarterly publication of the American Bar Association's Section on Administrative Law and Regulatory Practice, published in coordination with American University Washington College of Law.
- The Texas Tech 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.