A Quick Look at Administrative Law

(upbeat music) Welcome back to a hard look by the Administrative Law Review. Your hard look posts are Sophia Navello and Victoria Paul, third year law students at American University Washington College of Law. Today's episode is part of our new Quick Look series in which we provide a synthesized explanation of an administrative law principle. This series is geared towards exposing our audience to the foundational concepts and doctrines that shape administrative law. We aim to answer the questions we've all had at some point. To kick off the series, our first topic answers the question, what is administrative law? Today, we'll cover the purpose of administrative law, provide an overview of its principles, and discuss how it's developed within the United States. As a reminder, if you enjoy the show, please leave a review or rating on your favorite listening app. And if you have any questions, don't hesitate to reach out to us through the email in our bio. So what is administrative law? Administrative law, also referred to as regulatory law, is the body of law and legal principles that considers how administrative agencies exercise power to accomplish their statutory objectives. This statement alone requires a lot of unpacking, but we'll try to do so in four points. First, the authority and structure of administrative agencies. Second, the procedural formalities employed by agencies. Third, the validity of agency decisions. And fourth, the role of reviewing courts and their governmental entities in relation to administrative agencies. Administrative law can be traced back to the early practices of the federal government. And the creation of the first three presidential cabinet department after the Constitution was written. Justice Breyer has published a book on the history of administrative law, which can be found in the show notes. Arguably, the field arose as a pragmatic response to new and complex practical problems in American life. Following the new deal and in response to the rapid creation of new independent agencies in the early 20th century, Congress enacted the Administrative Procedure Act, the APA, in 1946. Administrative agencies, whether state or federal, must comply with constitutional requirements. We will discuss the APA in more depth in a bit. However, the Model State Administrative Procedure Act, MSAPA, was created and updated by the Uniform Law Commission. MSAPA contains the basic principles to support essential features of administrative agencies. Not all state agencies are uniform, causing a variety of approaches used in various states. For the purpose of this episode, we will primarily focus on federal administrative law. Do you have a business, podcasts, or publication you would like promoted? Reach out to a hard look podcast for an opportunity to get your work shared with an academic and engaging community. Visit us at administrativelawreview.org/podcast-a-hard-look for more information. First, we will discuss the authority and structure of administrative agencies. In a later episode, we will discuss this in more depth. At their core, an administrative agency is defined as a government body authorized to enforce a statute. These entities are responsible for particular governmental actions and perform narrowly defined tasks. A few names that we refer to them as are departments, agencies, boards, commissions. There are hundreds of federal agencies that fall into several categories, but they are all treated as agencies under the Administrative Procedure Act. The head or heads of all of them must be nominated by the president and confirmed by the Senate. Most heads serve at the pleasure of the president. Agencies can be divided into two categories, cabinet departments and independent agencies. There are 15 cabinet departments, all which contain sub agencies within them. For example, the Department of the Treasury, a cabinet department has seven sub agencies including the IRS and the Bureau of Ingraving and Printing. Our other category, independent agencies, are free-standing agencies that are not part of a department. Although they are still considered part of the executive branch, they have some insulation for a presidential control. Independent agencies are further divided into two categories. First, those whose heads also serve at the pleasure of the president, such as Environmental Protection Agency or EPA, or the National Aeronautics and Space Administration, NASA. The second category includes multi-member boards and commissions whose members typically have terms and cannot be removed by the president, except for misbehavior or other cause. Examples of these agencies include the Securities and Exchange Commission, SEC, Federal Trade Commission, FTC, or National Labor Relations Board, NLRB. In addition, there is some government corporations like the U.S. Postal Service and Amtrak that are owned by and accountable to the government, but are given some authority by Congress to operate like a private business. Many of these agencies have been delegated the power to implement statutes by developing precise rules and regulations. You can think of these as subordinate legislation. This is necessary because Congress cannot cover all eventualities and its statutes or even recognize potential gaps in them. The main goal of administrative law is to protect public interests and enhance fairness as we are all affected by agency activities in our daily lives. From the food you eat to the transportation you take to work and the device you're listening to this podcast on, nearly every aspect of life engages with administrative law. Administrative law includes constitutional provisions, federal laws, executive directives, and agency regulations and decisions. Administrative law is not necessarily limited to a particular area. It intersects with tax laws and how and when bridges are built, how unfair labor practices are adjudicated in the deployment of disaster response, just to name a few. Rather, administrative law covers the authority, structure, and procedures of government agencies. Essentially, administrative law ensures that agencies are doing their job and following the law. (upbeat music) For the most part, the Administrative Procedures Act and state equivalents provide for the roles and powers of all agencies and the procedures they must abide by in all their functions. - Broadly speaking, the APA categorizes administrative actions into either rulemaking or adjudication and their formal and informal versions of both. A rule issued using proper notice and comment procedures can have the same binding force and effect of a statute, assuming it survived any judicial review. The APA also prescribes trial type adjudication procedures for some types of cases, but also allows more informal procedures for other types of adjudications as long as they comport with due process of law. - The APA is a remedial statute designed to ensure uniformity and openness in procedures used by federal agencies. The act is a comprehensive regulatory scheme governing regulations, adjudications, and rulemaking in general terms. The APA is a major source for federal administrative agency law while comparable state acts governs the agency's administration and regulation. So for example, under the federal APA and judicial interpretations of the APA, agency is purporting to engage in rulemaking function must give notice of proposed rulemaking before adopting the final rule. The final rule must follow a logical outgrowth of the proposed rule and must display the agency's considerations of all comments received and reviewed. A quick looks episode will provide a deeper dive into the notice and comment process. - You may have noticed that while we are discussing an administrative procedure that results in rulemaking, the final regulation sounds very substantive, much like a law. As Congress stalls in lawmaking, there are arguments in favor of and opposed to the scope of agency regulatory authority. In the past five years, Congress has passed about 700 public laws. Excluding ceremonial matters such as naming post offices and buildings, very few of them are substantive laws that meaningfully impact our lives. However, within the same five year period, agencies have averaged over 3,000 final rules per year. Consider for yourself whether this is an appropriate approach to lawmaking. If not, is it never the less necessary? One important aspect of administrative law is the level of deference courts should give to an agency's legal determinations and their fact-finding. The level of deference afforded to agencies in both areas is varied over time. Over the summer, the Supreme Court published its decision on Loper-Bright Enterprises v. Riemondo. - Today, SCOTUS has ruled that agencies are not entitled to imprudent deference to agency interpretations, but instead must independently interpret the statute and effectuate the will of Congress, subject to constitutional limits. Practically, this requires court supply, denover review to all challenges of agency statutory interpretation. Although they can still give weight to the agency's judgment on such matters in some situations. If you enjoyed this episode, please take a second to leave a review and rating on your favorite listening app. - And be sure to subscribe so you don't miss anything. We'd love to answer your questions about administrative law, so let us know what you'd like to cover this season. Thanks for tuning in to A Hard Look.