Presentation Transcript

1. Administrative Law

   Professor Wells TR 9:00-10:15 Website: http://law.missouri.edu/wells/admin/
2. Administrative law is the law related to the management of government affairs. It involves the system of general legal principles that legitimate and control the actions of administrative agencies. Although each agency regulates in specific substantive areas, the study of administrative law is not concerned with the substance of agency action. Rather it is concerned with how agencies make their decisions and how courts review those decisions rather than with the contents of those decisions themselves. What is administrative law?
3. Generally defined as “any government entity that exercises government authority.” APA § 551(1)(A)-(H): Agency includes each authority of US gov’t, whether or not it is within or subject to review by another agency, that is not Congress, the federal courts, a territorial gov’t, or certain military entities http://www.usa.gov/directory/federal/index.shtml Agencies are creatures of the legislature (i.e., they cannot exist unless the legislature creates them). E.g., OSHA created by Congress in 1970 But agencies are considered part of the executive branch What is an administrative agency?
4. Kinds & Forms of Agencies Agencies take many forms – Congress tailors an agency to implement the purposes of substantive legislation SSA – due process and benefits adjudications FTC– individual enforcement actions re trade violations IRS– informal tax policymaking and advice OSHA – enacts rules/issues fines to protect worker safety “Executive” and “independent” agencies Executive - primarily respond to political and policy direction of the President & usually headed by a single individual (“Secretary”) Dept’s of Justice, State, Defense, Interior, Commerce, OSHA Independent – Insulated from presidential control & usually multi-member commissions FCC, FTC, SEC, FEC
5. Administrative law consists of legal principlesthat: Define agency structure What will the agency look like? Define the powers of agencies Will it have rulemaking, enforcement, investigation, adjudicatory, licensing, etc., powers? Specify the procedural formalities agencies use What hoops does the agency have to go through when making rules, issuing licenses, etc.? Define the various relationships between agencies and: Congress The Executive Branch The reviewing court Regulated entities/individuals
6. Constitutional Law Separation of Powers & Procedural Due Process Administrative Procedure Act (APA) - 1946 Prescribes procedures and a framework for judicial review Organic/Enabling Statutes Statutes establishing each agency and defining its mission –sometimes also prescribe procedures Other Statutes Statutes imposing requirements on all agencies – e.g., FOIA, NEPA Federal Common Law Mostly created prior to the APA (occasional reference back) Regulations Agency rules enforcing a statute – see Code of Federal Regulations (“C.F.R.”) Sources of Administrative Law
7. Why create administrative agencies? The previous slides explain what agencies are and what the sources of administrative law are. But why have agencies in the first place? Why create an agency like OSHA to protect worker safety? Why not just simply let workers file tort lawsuits to resolve disputes over workplace accidents? That is a traditional method to right wrongs. Or why not let Congress pass laws specifically prohibiting unsafe conduct – with attendant criminal penalties? That is also a traditional method of deterring unwanted behavior.
8. Agencies vs. Courts/Congress – the usual arguments: Lawsuits & statutes are too cumbersome Congress and courts lack expertise to develop technical standards governing complex fields (e.g., workplace safety regulations) Congress & courts can’t handle the influx of new legal rights/duties created in mid-20th century Congress can’t keep up with the detailed laws necessary to govern these rights/duties Courts would be overwhelmed with enforcement actions if done through private lawsuits Agencies provide potential accountability (more so than private actors subject to lawsuits)
9. A non-exclusive list of reasons why agencies regulate in light of the previous slide: Market failures Economic monopoly Inadequate dissemination of information (including deception) Scarcity Externalities Redistribution/Public Welfare Government benefits Maximum hour/minimum wage laws Common Good Revenue Raising (taxes) “Public” goods – environment, commerce
10. Regulatory capture - when a regulatory agency created to act in the public interest instead acts in favor of the special interests that dominate in the industry/sector it is charged with regulating. Public interest theoristsbelieve that regulatory capture involves regulatory failure because public officials lose focus on their purpose and act in favor of a regulated group, which produces negative externalities. Public choice theoristsbelieve that regulatory capture is an inevitable occurrence when groups/individuals with a high-stakes interest in the outcome of regulatory decisions focus their resources to gain the outcomes they prefer, while members of the public, who have only a tiny individual stake in the outcome, ignore the issue altogether. The high-stakes group "captures" influence with the regulatory agency, so that the preferred policy outcomes of the special interest are implemented. Pay attention to various theories of judicial review and public participation in agency policymaking during the semester. They reflect differing views on agency capture and the need to combat it. When agencies go bad:
11. http://www.newyorker.com/online/blogs/newsdesk/2014/01/a-chemical-spill-along-the-elk-river-in-west-virginia.html http://www.newyorker.com/online/blogs/newsdesk/2014/01/a-chemical-spill-along-the-elk-river-in-west-virginia.html http://www.nytimes.com/2014/01/13/us/critics-say-chemical-spill-highlights-lax-west-virginia-regulations.html Some interesting reading on possible regulatory failure and the recent chemical spill in West Virginia