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Substantive Administrative Law

Procedural Administrative Law

Administrative Law and the Legal Assistant

Independent Regulatory Agencies

Judicial Review

What Kind of Hearing

Judicial Restraint


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.




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.



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



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.




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

interpretative rules.



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)

from school:

1. notice of charge against them,

2. explanation of the evidence against them, and

3. the opportunity to explain the evidence

against them.


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

decision, and

9. Impartial decision maker.



1. Standing

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.