ADMINISTRATIVE LAW
Professor: Victor B. Flatt
Office Hours: Monday,
11-noon; Tuesday,
Texts: Lawson, Federal Administrative Law, THIRD Edition [A FOURTH EDITION MIGHT HAVE BECOME AVAILABLE IN DECEMBER 2006 – We will use the THIRD]
Supplemental case excerpts and articles to be handed out
This course is designed to provide an introduction to the law that governs the various aspects of the administrative process. Specifically, we will examine the role of administrative agencies in our legal and constitutional context, how agencies can acquire information and make decisions, limitations on agency power, and how agency procedure or decisions can be challenged in court.
I have assigned selected textbook readings, and I will supplement it with a couple of handouts. Please make sure that you read your assignments with care and thought, and be prepared. Because we learn from each other, discussion and attendance are very important, and meaningful class participation is expected. Unsatisfactory attendance or participation will lower your grade and exemplary participation may help your grade.
In addition to participation, your grade will be based on a group take home exercise (10%) and an in- class final (90%). The exercise is to participate in written public commenting in an administrative action that interests you. You will turn in a copy of your comment letter (which is to be dated before the due date (Feb. 26) and within the time period for which comments are accepted), and a copy of the "call for comments". The comments will be graded primarily on organization (readability/logic) and whether your comments address actions the agency has the power to take.
You may use any materials
for the assignment and final except another human being. A good way to study is
to keep the big picture in mind, where we have been, and where we are going.
(Periodic review of the syllabus should help this). If you ever become stranded
with no discernible connection to as to how anything relates, by all means
bring it up.
Syllabus and Outline
Jan. 8,
10, and 11
I. Introduction of class
II. Overview of legal system
A. Branches of government – where do administrative agencies fit?
B. Sources of law
1. Constitution
2. Statutes
3. Regulations
C. Judicial review and arrangement of the courts
D. Relation of the federal and state systems
III. Overview of the administrative process – how do agencies implement policy
A. Rulemaking
B. Enforcement/Adjudication
C. Information Gathering and Reporting
D. Investigative powers
Assignment: Lawson 1-12,
33-47 (read all
of the (short) assignment before the first class)
CONSTRAINTS ON AGENCY CREATION, STRUCTURE AND CONTROL BY THE LEGISLATURE AND EXECUTIVE BRANCH
1/17 and 1/18 (1/15 is Martin Luther King, Jr. holiday)
IV. Administrative agencies as a creation of the legislature
A. Why create an administrative agency?
B. The delegation doctrine and non-delegation of legislative powers
Assignment: Lawson:
49-55, 59-73, 93-100
1/22
C. Legislative control of Delegation
Assignment: Lawson 100-123
1/24 and 1/25
V. The agency and the executive branch
A. Powers of appointment – who is an officer (principal and inferior)
Assignment: Lawson 123-151
1/29 and 1/31
B. Removal of agency officials
Assignment: Lawson 151-170
Aside: what other powers does the executive branch have? (supervisory authority, attorney general advice, justice department, veto power, executive orders)
Legislative and Executive controls revisited and reviewed
1. Legislature by legislation
2. Executive by appointment and dismissal
3.
Other - legislative – budget, oversight – executive – orders,
AG, etc . . .
2/1
VI.
Agencies
and the Judicial Branch
Assignment: Lawson 174-182
2/5 – discussion
of commenting exercise – bring computers to class to search online
Assignment: Excerpt
from “Let the People Speak” – to be handed out
CONSTRAINTS ON AGENCY ACTION
There will be no class on Feb. 15; Instead, Professor
Flatt will meet with “commenting groups” to discuss comments (each
group should schedule meeting between February 5 and February 14).
2/7 and 2/8
VII. Statutory Constraints
A. The Administrative Procedures Act (APA) and state equivalents
1. Rulemaking
a. requirements for "formal" rulemaking, and triggering them
b. requirements for "informal" rulemaking
Assignment: Lawson 193-223, 235-240 (for 2/7); 243-256 (through end of note 2), 933-936
2/12
2. Adjudication –
requirements for formal adjudication
ALSO – FREEDOM of
INFORMATION ACT
Assignment:
Lawson 235-240, 936-937, 945-957 (case to be handed out-FOIA exercise)
2/14
B. Enabling act limitations - ultra vires
C. Other Substantive Statutory Provisions (NEPA, etc . . .) And Congressional review laws
Assignment: Lawson 582-588, (Look up one of the following statutory schemes [based on the letter that begins your last name] and complete up to a one page write-up (without assistance) discussing how it might affect agency action – note whether it is substantive or procedural and what impacts it might have on agency action.
Letters A-D: National Environmental Policy Act (NEPA)
Letters E-L: Native American Grave Protection and Repatriation Act (NAGPRA)
Letters M-R: Data Quality Act
Letters S-T: Small Business Regulatory Enforcement Fairness Act
2/15 – no class – see discussion above re “commenting group.”
2/19 –
President’s Day
2/21 and 2/22
VIII. Constitutional Constraints
A. Constitutional Issues with rulemaking- due process- notice and chance to be heard
B. Constitutional Issues with Trial-type proceedings – life, liberty, or property
Assignment: Lawson 627-628, 15-21, 628-631, 657-664, 675-679, 687-688, 714-723, 745-754
2/26
C. Due Process and Agency Mixing of Roles
D. Other Constitutional Issues - Lucas, takings/ equal protection, search and seizure
Assignment: Lawson 182-192, look up, read and bring to class Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992).
2/28 and 3/1
IX. Constraints on choosing adjudication or rulemaking/ difference between adjudication and rulemaking
limits on adjudication over rulemaking
Assignment: Lawson:
340-366, 23-26
3/5
X. Other ways and agency implements policy and constraints on "Alternative ways" of administrative action
A. Informal agency action
Assignment: Lawson 307-325
CHALLENGING AGENCY ACTION
3/7 and 3/8
The Role of the Judiciary
XI. Judicial review of agency action
A.
Can case go before the court
1.Sovereign Immunity
2. Jurisdiction and venue
Assignment: Lawson
755-772; 28 U.S.C. 1346 and 1491
SPRING BREAK
3/19 and 3/21
Brief review and
3. Preclusion
3/22
4. Standing (Constitutional)
Assignment: Lawson 805-829
3/26
4. Standing – continued-“statutory standing”
Assignment: Lawson
829-832, 834-837, 847-862
3/28
5. State action
Assignment: read Brentwood Academy v. T.S.A.A., 531 U.S. 288 (2001), and bring to class to discuss;
3/29
B. When should judicial review occur
1.
Exhaustion
Assignment: Lawson
862-877
4/2, 4/4
2. Finality (Section 704 - APA)
3. Ripeness
Assignment: Lawson 877-889,
894-902
4/5
4. Statutes of limitations (form of action) and Primary Jurisdiction
Assignment: Lawson 902-912
4/9, 4/11
C. What kind of judicial review is allowed
A re-examination of burden of proof at the agency level
Scope of Review/ Standard of Review
1. findings of fact
Assignment: Lawson 367-390, 400-408
4/12, 4/16, 4/18, 4/19
2. -determinations of legal issues
3. -CHEVRON, and when does it apply
Assignment: Lawson 439-449, 473-488, 500-515, print out and bring to class State of New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
4/23
4. -arbitrary and capricious
Assignment: Lawson 535-543, 552-563
4/25
REVIEW