read instructions carefully
PS 480: Introduction to Administrative Law
Dr. Mark Henkels
Spring 2020
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General points about the class:
Each week you have one writing assignment, with one week off of your choosing late in the quarter.
Each Wednesday you will submit an assignment by 5 pm. On weeks where there are two possible essays, the one you will submit will be identified by 4pm that Wednesday.
For the essays, use only course materials.
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Look at the questions, go through the material for that section, then write the essays.
You should be able to identify the key required elements from the materials and assemble them into a coherent thoughtful essay.
The specific papers on rulemaking, adjudication, and comparing cases are self-explanatory
- but always feel free to ask for clarification!
I think you will find that the demands are reasonable considering there is no formal class meetings.
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This class is content-based, seeks to provide students a solid sense of how things ought to, or ought not to, work within the administrative context.
RED FLAGS
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Section One
The world of administrative law
- Constitutional context of federalism and judicial review
- basic designs and processes of the judicial system
- The rise and current conditions in the bureaucracy
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We created a bureaucracy to implement our politically-chosen goals.
How do we ensure the goals are properly pursued?
And what of the dangers of THE BUREAUCRACY !!!!
And the bureaucratic bureaucrats who control it !!!!!!!!
Over 20 million of them!
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PS 480 Introduction: The Context
Principal-agent problem: the principal (owner, citizen, legislator) has different interests than the agent (the workers, elected officials, the bureaucracy)
Constant challenge of making sure the agent properly serves the will of the principal
Can we balance rights with other social concerns, such as effectiveness and efficiency?
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PS 480 Introduction: The Context
One key term to remember:
Due process: the appropriate or “fair” set of actions or considerations that must be done before the government can legally harm an individual
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Hierarchy of Law: Lower sources cannot violate upper
1. Federal Constitutional
2. Federal Statutory
3. Federal Administrative Rules
4. Federal Executive orders & similar acts, like “signing statements (below other fedl law, but not necessarily state)
5. State Constitutional
6. State Statutory
7. State administrative rules
Case or common law
9. State Executive orders
CONTROL OVER AGENCIES: Judicial or Legal Control
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Hierarchy of Law:
Federal Constitutional law (and Treaties) : Basic principles are subject to interpretation over time.
Apply to all elements of society due to Article VI, the “Supremacy Clause” of US Constitution
Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
PS 480 Introduction: The Context
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Hierarchy of Law: Federal Constitutional Law
Key Dimensions of federal constitutional law affecting administration
Federalism
Separation of Powers
Civil Rights and Liberties
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US Constitutional Law: Federalism
Congressional Power regarding states:
A. Supremacy Clause: states cannot abridge any constitutional action by Congress: Congress “preempts”
Necessary and Proper Clause: Congress can do whatever it takes to execute other powers
- McCulloch v. Maryland (1819)
Commerce Clause: Congress can regulate commerce between states, foreign nations, Indian tribes
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US Constitutional Law: Federalism
Commerce clause expanded seemingly without limit after NLRB v. Jones and Laughlin Steel (1937)
Some limits today:
New York v. United States (1992)
United States v. Lopez (1995)
U.S. v. Morrison (2000)
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US Constitutional Law: Federalism
Preemption: states may not intervene in areas that Congress has chosen to have federal law prevail.
2016 legislation to forbid states from labeling GMOs in different manner than US allows
- Currently there is a battle brewing about whether the EPA can preempt California’s stringent air pollution laws
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US Constitutional Law: Federalism
Pragmatic adaptations of federal law:
Partial preemption: federal government allows states to regulate as long as they fit federal goals (often incentivized by grants)
Waivers: when the federal government grants explicit permission for states to vary from basic federal rules and mandates
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US Constitutional Law: Federalism
Pragmatic adaptation of federal law:
Congressional Mandates and Conditions:
If states accept money (“grants”) from Congress, they are bound by any attached requirements
Potential limits established in Florida v. US Department of Health and Human Services (2012): PPACA case
(PPACA: aka “ACA”, aka “Obamacare”)
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US Constitutional Law: Civil Rights & Liberties
Tenth Amendment: States have any powers not explicitly granted to Congress or forbidden under the US Constitution or their own constitutions.
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US Constitutional Law: Separation of Powers
Constitutional references:
Article I: powers of Congress, notably “enumerated powers” such as the “commerce clause”
Article II: spells out the powers of the executive branch, primarily about the president’s direct power
- Little on administrative powers or “bureaucracy”
Article III: spells out powers of the judiciary.
Other than the existence of Supreme Court, Congress can change the design and jurisdiction of the judiciary
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US Constitutional Law: Separation of Powers
Agencies have odd relationship to basic concept of separation of powers:
-- Combine legislative, executive and judicial work
THERE IS AN ENDLESS BATTLE FOR CONTROL OVER IMPLEMENTATION
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US Constitutional Law: Civil Rights & Liberties
Constitutional limits that apply to all governments, primarily located in:
1. Bill of Rights: First ten amendments
2. Thirteenth, Fourteenth, and Fifteen Amendments
3. Fourteenth Amendment most critical for:
- equal protection of the law: means states must respect rights and liberties found in US Constitution
- due process guaranteed
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Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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Hierarchy of Law:
2. Federal Statutory law: enable agencies to act: read and applied more literally than the constitution, changed more readily
Food and Drug Administration v. Brown and Williamson (2000) : cigarettes are not “drugs”, not agency responsibility. Agency acting beyond jurisdiction: ultra vires
- In 2009 the FDA was given explicit authority over tobacco
PS 480 Introduction: The Context
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3. Federal Administrative rules and regulations: implement statutes and must fit with statutory meaning and purposes
Whitman v. American Trucking Association (2001): agency cannot consider costs of regulations unless the statute requires or allows it. CAA does not permit such consideration in this situation
Hierarchy of Law:
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4. Federal Executive orders: guidelines for administration, must fit statutory and constitutional law
Created and rescinded unilaterally by President: over 14,000
Dole v. United Steelworkers (1990): executive orders do not override legislation: OMB cannot prevent legally required OSHA rule to disclose workplace hazards
Hierarchy of Law:
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4. Federal Executive orders: Related actions
Presidential proclamations: declarations of acting on established powers: ex: suspending trade for human rights reasons – directed outside of government
“Signing statements” state president’s interpretation of a statute and intent regarding implementation, including inaction due to disagreement on constitutionality
Hierarchy of Law:
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Hierarchy of Law:
5. State Constitutional law: - basic principles subject to interpretation over time by state courts, cannot violate constitutional federal laws
- Can create significantly different rights than federal law
PS 480 Introduction: The Context
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Hierarchy of Law:
6. State statutory law: must fit state and federal laws
7. State administrative rules and regulations: tend to reflect expertise, must fit statutory purpose and guidelines
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Hierarchy of Law:
8. Common law: “judge-made” law: principles developed over by judges resolving problems in manner that fits existing laws
- can be connected to constitutional rights, such as when contract law connects to property right – Oregon’s 2015 Moro case regarding PERS benefits
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Hierarchy of Law: common law, case law, and precedent
stare decisis: rule of precedent: fundamental task in common law is to find how existing non-constitutional or non-statutory law fits situation
“Case law”: is the general principle of finding how previous decisions (“stare decisis”) fit with existing case, including constitutional, statutory, and common law.
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9. State Executive orders: guidelines for administration by governor
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Hierarchy of Laws
Statutory law (and any state laws) cannot violate the federal constitution.
No state law can violate state constitution.
Administrative rules must fit within statutes.
Case or common law cannot violate statutory or constitutional law: basically “black letter law” displaced tradition
Executive orders cannot violate statutes or constitutions.
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