Chapter One

State and Federal Administrative Law, 2nd ed. 1998

Ripped from the Headlines

Who should sort out the power grid problems? What are the conflicting issues?

What is the trade off between price and reliability? Who must pay?

What is the role of the Federal Energy Regulatory Commission (FERC)?

What about the states? What about deregulation?

Virus that Makes Plants Freeze Resistant

Assume this would let you grow oranges in LA Industry wants to test it The citizens are scared that it will spread and no

one will buy their crops Jeremy Rifkin is going to picket so you will get

national publicity You really do not know the risks, but it might

really be a good think because you cannot grow sugar much longer

What does the Governor do?

What agency should be in charge? What are the political issues you have to balance? Who is going to sue you if you allow the tests? Who is going to sue you if you do not allow the

tests? What is the worst threat?

Introduction to Administrative Law

The Two Core Agency Functions

Regulation This is similar to law enforcement Most agency enforcement is civil Agencies can refer to the Department of Justice (DOJ)

for criminal prosecutions Beneficence

Social Security Medicare, Medicaid Other benefit programs are run by agencies

Where do Agencies Come From?

Not in the Constitution Formed when the Legislature passes a law that sets them

up Organic Act Enabling Act Agencies only have the Powers they are Granted

Every Branch of Government is an Agency DOJ Courts Military

Agency Powers

Rulemaking Adjudication Permits Licenses Inspections Publicity

Advantages of Agencies

Flexible Can respond to new threats Can change rules without involving the legislature

Non-Adversarial Does not depend on prowess and resources of the

private lawyers Can balance societal needs as well as those of parties Can use its own expertise

Disadvantages of Agencies

Agency capture Agency is controlled by interest groups or regulated

parties Hard to avoid if the regulated parties have all the

expertise Depends on the expertise of the agency personnel and

directors Many directors are political appointments with no

expertise Special Problem in Public Health and Health Care at

the State Level

What are the alternatives to agency regulation?

Criminal Law Expensive because of Due Process

Requirements Demands Specific Prior Law (Homeland

Security Notwithstanding) Private Litigation

Impossible to predict what is correct behavior Penalties out of line with harm

How is Administrative law different from first year courses?

Not litigation based Based on non-adversarial process Not a common law system More like a code system

Must learn to work with the agencies through time Litigation is one shot Agency practice is ongoing with both clients

and regulators

State and Federal Administrative - Key Differences

Different separation of powers issues Multiple executives

AG and Governor Other Independently Elected Agency Heads

Some unicameral legislatures Many states do not defer as much to agency LA really limits agency power

Why is the New Deal Important in Administrative Law?

Beginning of Modern Agency Government Prior to the New Deal, Few Federal Agencies

FCC - Antitrust Most Regulation was done by States

Very Active in the 1800s Reined in by the United States Supreme Court

for Interfering with Interstate Commerce Big Growth was During World War II

Administrative Procedure Acts

Code of Procedure and Bill of Rights for Agency Actions

When was the Federal APA passed? 1946, after 10 years of fighting It was opposed by Republicans and Southern

Democrats who opposed the New Deal Provides uniform rules for agency practice

Does the APA completely define the procedures for every agency?

Most agencies have specific procedures in their organic acts, and some are very different from the APA

The APA controls when the organic act is silent States have their own versions of the APA

When you represent a client before an agency, you must know the state APA

Local government agencies are often exempt from the APA

Public Information Laws

Freedom of Information Acts (FOIA) The federal government and the states have law FOIA

laws that allow access to information held by agencies Anyone can get access and you do not need a reason Exceptions to protect privacy and agency functions

Open Meetings Laws There are federal and state laws that require public

access to meetings Failure to comply can make the agency action void in

some cases