🧑🏻‍💼United States Law and Legal Analysis Unit 8 – Administrative Law & Regulatory Agencies

Key Concepts in Administrative Law

• Administrative law governs the creation and operation of administrative agencies, which are part of the executive branch of government
• Agencies are created by Congress through enabling statutes that define their powers, duties, and organizational structure
• Agencies engage in rulemaking, issuing regulations that have the force of law and fill in the details of broad statutory mandates
• Adjudication involves agencies making case-by-case decisions to resolve disputes or enforce regulations (Federal Trade Commission deciding if an ad is deceptive)
• Agencies exercise discretion in carrying out their statutory responsibilities, but are subject to procedural requirements and judicial oversight
• Due process requires agencies to provide notice and an opportunity to be heard before taking actions that affect individual rights or property interests
• Judicial review ensures that agencies act within their statutory authority, follow required procedures, and make decisions supported by substantial evidence

Historical Development of Administrative Agencies

• The first federal administrative agency, the Interstate Commerce Commission, was created in 1887 to regulate railroads
• The New Deal era of the 1930s saw a rapid expansion of federal agencies to address economic and social problems (Securities and Exchange Commission, National Labor Relations Board)
• World War II and the post-war period led to the creation of more agencies to manage wartime production and implement new social programs (Environmental Protection Agency, Occupational Safety and Health Administration)
• The Administrative Procedure Act (APA) of 1946 established uniform procedures for agency rulemaking and adjudication and codified standards for judicial review
• The 1960s and 1970s witnessed a proliferation of agencies focused on consumer protection, civil rights, and environmental regulation
• The 1980s and 1990s saw efforts to deregulate certain industries (airlines, telecommunications) and streamline agency procedures
• Recent decades have featured debates over the proper role and scope of administrative agencies in a changing economy and political landscape

Types and Structure of Regulatory Agencies

• Executive agencies are under the direct control of the President and are typically headed by a single administrator appointed by the President with Senate confirmation (Department of Labor, Environmental Protection Agency)
• Independent agencies are more insulated from presidential control, often headed by multi-member commissions with staggered terms and bipartisan representation (Federal Communications Commission, Consumer Product Safety Commission)
• Some agencies exercise broad regulatory authority over a sector of the economy (Federal Energy Regulatory Commission), while others have a narrower focus (Mine Safety and Health Administration)
• Agencies are structured with various offices and divisions that handle different functions such as rulemaking, enforcement, research, and public outreach
• Many agencies have an internal separation of functions, with different personnel responsible for investigation, prosecution, and adjudication to ensure fairness and impartiality
• Some agencies are funded by congressional appropriations, while others are partially or fully funded by fees and assessments on regulated entities

Rulemaking Process and Procedures

• Informal rulemaking, also known as notice-and-comment rulemaking, is the most common procedure for issuing regulations
  • Agencies must publish a proposed rule in the Federal Register, allow time for public comment, and respond to significant comments before issuing a final rule
  • The APA requires agencies to provide a concise general statement of a rule's basis and purpose
• Formal rulemaking, which is less common, requires a trial-type hearing before an administrative law judge and a decision based on the hearing record
• Agencies must consider the economic impact of proposed rules and conduct cost-benefit analysis for significant rules
• The Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget reviews significant rules before publication
• Negotiated rulemaking involves bringing together representatives of interested parties to reach consensus on a proposed rule before the formal rulemaking process begins
• Direct final rulemaking allows agencies to issue non-controversial rules without prior notice and comment, but the rule is withdrawn if adverse comments are received

Enforcement and Adjudication Powers

• Agencies have the power to investigate potential violations of statutes and regulations through inspections, subpoenas, and other means
• Administrative law judges (ALJs) preside over agency adjudicatory hearings, which are similar to court trials but less formal
  • ALJs are agency employees but have a degree of independence to ensure impartiality
  • Agencies can appeal ALJ decisions to the agency head or a review board before they become final
• Agencies can impose civil penalties, revoke licenses or permits, and issue cease-and-desist orders to enforce compliance with regulations
• Criminal enforcement of agency statutes is typically handled by the Department of Justice, but some agencies have authority to bring criminal charges directly
• Agencies can use a variety of alternative dispute resolution methods (negotiation, mediation, arbitration) to resolve enforcement actions and other disputes

Judicial Review of Agency Actions

• The APA provides for judicial review of final agency actions, findings, and conclusions
• Review is typically conducted by federal district courts, with appeals to the circuit courts of appeals and potential review by the Supreme Court
• The scope of review depends on the type of agency action and the applicable statutory language
  • Questions of law are reviewed de novo, with the court deciding the issue independently
  • Questions of fact are reviewed under the substantial evidence test (for formal proceedings) or the arbitrary and capricious standard (for informal proceedings)
• Courts generally defer to an agency's reasonable interpretation of an ambiguous statute it administers (Chevron deference) or its own ambiguous regulations (Auer deference)
• Judicial review is not available when statutes preclude review or the action is committed to agency discretion by law
• Standing to seek judicial review requires a concrete and particularized injury caused by the challenged action and redressable by a favorable court decision

Constitutional Limits on Agency Authority

• The nondelegation doctrine, based on the separation of powers, holds that Congress cannot delegate its legislative power to agencies without providing an intelligible principle to guide agency discretion
  • The Supreme Court has not invalidated a statute on nondelegation grounds since the 1930s, but the doctrine remains a subject of debate
• The Appointments Clause requires that principal officers of the United States be appointed by the President with Senate confirmation, while inferior officers can be appointed by the President alone, courts, or heads of departments
• The Take Care Clause requires the President to faithfully execute the laws, providing a basis for presidential oversight of agencies
• Procedural due process requires agencies to provide notice and an opportunity to be heard before depriving individuals of life, liberty, or property
• Substantive due process prohibits arbitrary and capricious agency action that infringes on fundamental rights
• The First Amendment limits agency restrictions on speech and other expressive activities

Current Issues and Debates in Administrative Law

• The role of cost-benefit analysis in regulatory decision-making and the appropriate methods for quantifying costs and benefits
• The use of guidance documents and other non-binding agency statements to influence regulated entities without going through the rulemaking process
• The impact of presidential control over agency decision-making through executive orders, centralized review, and other means
• The effect of agency capture, where regulated industries exert undue influence over the agencies that regulate them
• The application of Chevron deference and whether courts should be more skeptical of agency statutory interpretations
• The use of science and technical expertise in agency decision-making and the role of public participation and transparency
• The growth of the administrative state and whether Congress has delegated too much power to unelected agency officials
• The potential for agencies to take actions that exceed their statutory authority or infringe on individual rights and the effectiveness of judicial review in checking agency overreach