Substantive Administrative Law
Procedural Administrative Law
Administrative Law and the Legal Assistant
Independent Regulatory Agencies
What Kind of Hearing
I. BACKGROUND. The most striking development
in the federal and state governments during
this century has been the proliferation of
administrative agencies. Administrative law
is the area of law that impacts all persons on
an almost daily basis. e.g. State and local
agencies: zoning boards housing authorities
water and sewer commissions public utility
commissions historical commissions or societies
board of Realtors board of cosmetology state
medical, dental,, optometry, bar commissions
/boards unemployment commission workers'
compensation commission of higher education
department of taxation department of motor
vehicles etc., etc., etc.
II. SUBSTANTIVE ADMINISTRATIVE LAW.
When studying administrative law, the
discipline is limited to procedural law.
This is because there is a body of substantive
law unique to each of the hundreds of
administrative agencies. A course studying
substantive administrative law would be
entitled Workers' Compensation, or
Federal Taxation, etc.
1. Enabling statutes
2. Federal Register
3. Code of Federal Regulations
4. Delegatus no protest delegare - the common
law doctrine meaning a delegate cannot delegate.
III. PROCEDURAL ADMINISTRATIVE LAW.
Certain principles apply to all administrative
agencies, which concern the rule-making,
rule enforcement, and adjudication.
1. Constitutional limitations found in the 5th
and 14th Amendments.
2. Sovereign immunity
IV. ADMINISTRATIVE LAW AND THE LEGAL ASSISTANT.
Many important federal agencies permit a
complainant to be represented by the person
of his/her choice. State bar associations have
been known to oppose non-lawyers representing
clients before federal agencies, but such
opposition has failed under the Supremacy Clause
of the Constitution. Challenges by bar
associations failed because bar associations
are state agencies who can only determine who
can represent clients at the state level.
V. INDEPENDENT REGULATORY AGENCIES.
1. The Interstate Commerce Commission (ICC) was
authorized by Congress to set "just and
reasonable rates" for railroads and the
definition of "just and reasonable" was left to
the ICC itself.
2. The Federal Communication Commission (FCC)
may issue licenses to broadcasters if doing so
is "in the public interest."
3. The Occupational Safety and Health
Administration (OHSA) may adopt rules that are
"reasonably necessary to provide safe and
healthful employment and places of employment."
4. The Consumer Product Safety Commission
CPSC) may make rules "reasonable necessary
to prevent or reduce risk or injury" to
5. Independent regulatory agencies, given the
broad delegation of rule-making authority
illustrated above and the fact that these
agencies promulgate (administrative word for
enact) far more regulations each year than does
Congress, cause two concerns:
(a) the delegation authority of Congress, and
(b) the degree of independence these agencies
have from the executive branch.
VI. JUDICIAL REVIEW. Judicial review of
administrative acts has developed primarily two
ways. First, does the agency have the authority
to promulgate the rule in question? Second, did
the agency follow the procedures required to
promulgate the rule?
1. Ultra vires (beyond the scope of power).
An agency's rule may be challenged if it is
beyond the scope of power granted to the agency
in the enabling legislation. Recall the use of
the language "just and reasonable," "reasonably
necessary," and "in the public interest."
Authority can be found expressly in the
enabling legislation or can be found implicitly,
i.e. the authority is implied as necessary to
carry out the express authority (the IRS is
not given express authority to charge specific
interest or fines, but the right to do so can
be implied as being necessary to carry out its
function to tax collector.
2. Rules of Administrative Procedure. The
federal Administrative Procedures Act (APA)
and similar state acts (Administrative
Procedures Act, NMSA 12-8-1 et seq.) provide
the rules which must be followed when
promulgating administrative rules. Essentially,
there are three requirements:
1. the proposed rules be published in advance
of their consideration,
2. interested and affected parties be allowed
to comment either orally or in writing on the
proposed rule, and
3. any decision on the rule be based on the
findings of "the whole record."
(a) The above is applied to substantive rules.
Excepted are rules regarding internal
housekeeping and management as well as
3. The right to be heard regarding promulgated
rules depends upon the nature of the impact.
Impacts the entire public - right is limited to
that given under the APA. Impacts select group
of individuals differently from others -
the right to be heard is more in the nature of
a judicial hearing.
VII. WHAT KIND OF HEARING. The type of hearing
required is dictated by the 5th and 14th
Amendments and the nature of the right being
impacted. Hearings can be very informal to
formal advocacy proceedings. Examples of the
extremes of advocacy proceedings depends upon
the nature of the right involved.
1. Goss v. Lopez, 410 U.S. 565 (1975),
high school students suspension not expulsion)
1. notice of charge against them,
2. explanation of the evidence against them, and
3. the opportunity to explain the evidence
2. Goldberg v. Kelly, 397 U.S. 254 (1970),
termination of a property right:
1. Notice with reasons for termination,
2. Confrontation of witnesses against her,
3. Oral argument,
4. Cross-examination of witnesses,
5. Disclosure of evidence for the other side,
6. Representation by an attorney,
7. Determination on the record,
8. Statement of reasons relied on for
9. Impartial decision maker.
VIII. JUDICIAL RESTRAINT.
2. Exhaustion of administrative remedies
3. Standards used:
(a) Findings of fact, if supported by
substantial evidence based upon the whole
record, are to be regarded as final. In other
words, the findings of fact of an administrative
agency are given the same weight as the findings
of fact of a jury (not a judge).
(b) Conclusions of law made by the agency are
subject to the same standard of review as a
trial court's ruling on issues of law, i.e. the
reviewing court will substitute its own opinion
regarding rules of law.
4. Primary jurisdiction doctrine. In addition to
limiting judicial review to administratively
completed decisions, courts will also refuse to
hear a case arising under legislation if an
agency has been given the primary authority for
resolving the dispute.