Administrative Law

Federal administrative law comes from the Executive Branch of the United States government. It relates to the powers of the President, the functions and procedures of federal administrative agencies, and the methods of judicial review of administrative decisions.

Administrative law exists in a number of forms including rules, regulations, orders, and decisions. The President is empowered to issue executive orders, proclamations, and reorganization plans. Administrative agencies, when specifically granted the authority by Congress, have the power to create, or promulgate, rules and regulations that have the same authority as statutes. This rulemaking authority is explicitly recognized in the Administrative Procedures Act of 1946, one of the most important federal statutes of general applicability to administrative agencies. 

The Act was implemented in order to ensure that the public has adequate notice of proposed laws, that there is an opportunity to comment on the proposed law, and that there are clear standards for agency rulemaking. The APA also specifies when courts may review and nullify administrative agency rules and provides standards for any administrative hearings that are conducted.

Federal agencies—both executive and independent—have to follow the rulemaking procedures outlined in the APA. An agency over which the President has substantial direct control is usually called an executive agency, while agencies under less presidential control are usually known as independent agencies. A notable difference between an executive agency and an independent agency is that Congress typically prevents the President from removing a head of an independent agency without good cause. In contrast, the heads of executive agencies serve at the will of the President and can be removed whenever the President sees fit. Another difference is that an executive agency tends to have a single head, while an independent agency tends to be led by a board or commission of several members.

First, the agency must publish a proposed rule in the Federal Register and give the public at least 45 days to review the rule and submit a public comment if they choose. Public comments can either oppose or support the proposed rule and can be submitted by virtually anyone, including individuals, companies, and interest groups. During this period, the agency has the option of conducting a public hearing on the proposed rule. If the agency does not hold a hearing, however, an interested party can submit a written request for a hearing at least 15 days before the close of the public review period. The agency reviews the comments and considers whether to make any changes to the proposed law. Depending on how drastic the change to the rule is, the agency may be required to allow the public 15 days to review and comment on the amended version. This cycle may happen a few times before the rule reaches its nearly final form. The APA requires agencies to summarize and respond to each public comment, and each comment is made available to the public as part of the rulemaking record.

The agency must send its proposed rule to the Office of Administrative Law (“OAL”), which oversees all rulemaking activities of federal agencies, within one year from the date the proposed rule was first released to the public. OAL reviews the law and the procedures the agency utilized to determine whether they complied with the APA. If the OAL determines that the agency followed the APA appropriately, the agency can complete the process and publish a final rule, which is then printed in the Federal Register and the official Code of Federal Regulations.

Most administrative agencies have the power to enforce and adjudicate the laws that they create. Typically, enforcement proceedings resemble courtroom practices and procedures in which the parties must present evidence and argue their case. The decisions of administrative enforcement proceedings create a body of administrative law much like judicial court opinions.

According to the APA, a party wishing to challenge an agency’s determination can ultimately appeal the decision to a court within the judicial branch for review. To appeal the decision to a judicial court, however, the party seeking review must exhaust any administrative appeal procedures made available to that party by the agency and the APA. This process is designed to create sufficient checks and balances between the three branches of government.

Courts use different standards of review to evaluate administrative agency laws. The standard of review determines the amount of deference that the court gives to the administrative agency that created the rule. When reviewing an administrative decision, the court will consider whether the agency’s action was arbitrary and capricious, or an abuse of discretion. Agencies also make administrative decisions, or adjudications, that are in some ways similar to judicial trials. Any administrative action that directly affects the rights of specific individuals is categorized as an administrative adjudication. Due to the range in scope of administrative decisions, administrative law materials related to agency decisions include a wide variety of materials, including opinions written by administrative law judges.