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Balancing Agency Power: Administrative Law and Government Regulation

Explore the complexities of state and federal administrative law, agency functions, advantages, and challenges. Learn about key differences, historical significance, and public information laws.

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Balancing Agency Power: Administrative Law and Government Regulation

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  1. Chapter One State and Federal Administrative Law, 2nd ed. 1998

  2. 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?

  3. 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

  4. 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?

  5. Introduction to Administrative Law

  6. 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

  7. 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

  8. Agency Powers • Rulemaking • Adjudication • Permits • Licenses • Inspections • Publicity

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

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