Administrative Law - Term Paper Example

Introduction Administrative law has been defined as that branch of law concerning agencies responsible for administrative function in Government. This law deals with the powers of the agencies including rule making. The agencies of the Government having been created to safeguard public interest, they should act within the limits provided for in the constitution. In the USA, the limits can be found as codes in Acts such as the Federal Administrative Procedure Act (FAPA) and State Acts. The FAPA in effect provides for remedies to ensure that the governmental agencies exercise transparency in the procedures adopted by them (Legal Information Institute) Administrative structure While the Congress enacts the laws, the President is expected to execute them. As it is humanly impossible to do that himself, he is forced to employ people to implement the laws made. They come from the Executive branch. They act agents of the President. Such agencies are defined as the authority of the Government of the U.S. regardless of their coming in to purview of another agency as per the Administrative Procedure Act 1946. The Act has exempted the Congress, the courts and the Governments of District of Columbia and territories. The President’s office is also not an agency as held in Franklin v Massachusetts, 505 U.S.788 (1992). The States and state agencies are not covered by the APA as they are not the authorities of U.S.Government. The Departments are agencies headed by a secretary chosen by the President. There are as many as fifteen Cabinet-level departments from Agriculture, Defense, and Education to Treasury and Veteran Affairs (Funk and Seamon, p 5-6). Separation of powers. Government has three branches as created by the constitution. They are the legislative branch, the executive branch and the judicial branch represented by the Congress, the president and by the Courts of law respectively. Powers of the Government have been separated by the creation of these three branches in order to avoid concentration of powers in any one branch. The separation of powers helps creation of checks and balances within the Federal Government. As already said, Congress legislates law which the President can approve or veto the bill carrying the law. On the other hand, treaties that are negotiated by the president must be ratified by the Senate by a two-thirds majority vote. Further, although the president appoints federal judges and the Supreme Court judges of the judicial branch, the Senate must approve the appointments. As regards administrative law, while the Congress can bring in a bill for creation of an agency, the president can exercise his power of veto to prevent the agency’s creation. Some times, even though a bill has been passed by both the Congress and the president, Supreme Court can still declare the law passed as unconstitutional, a critical feature of separation of powers known as judicial review. This power was assumed by the Supreme court for deciding the well known case of Marbury v Madison, 5 US 137 (1803). Similar to the separation of powers at the federal level, States have also their own constitutions featuring separation of powers at the state level. In this regard, a mention must be made of the tenth amendment which enabled the States and the people to assume powers that were not given to the federal government (De Leo, 2008, Jr p 4-7) Federalism To dilute concentration of powers still further, powers have been distributed among the federal and state governments pursuant to the concept of federalism (De Leo, 2008, Jr p 7) Unofficial fourth branch of government As there is no provision to create agencies, the administrative law that has since emerged in the modern system of governance led to call the agencies as the “unofficial fourth branch of government. Theses agencies have the power to make rules and regulations akin to the laws passed by the Congress or state legislatures. They also have the executive power just as the president or a governor possesses. They also have a sort of judicial power since they have the authority to adjudicate disputes through the hearings as in court of law to decide if their own regulations have been breached or not. Thus, the agencies have been delegated with the legislative, executive and judicial powers. They actually are not violative of the separation of powers principles and the concept of checks and balances as the U.S. Supreme Court has held that delegation of powers to agencies is constitutional if made properly as also the supreme courts of the states (De Leo, 2008, Jr p 9). It is now clear that “an administrative agency is a sub-branch of the government set up by a legislature to carry out laws by wielding legislative, executive and judicial power” ((De Leo, 2008, Jr p 11) And the “administrative law is the study of how agencies are created, how agencies do their work in exercising their delegated powers, and how agencies are controlled. The core functions of agencies are to address economic and social issues.” (De Leo, 2008, Jr p 11). This also reminds one of the delegation doctrine and non-delegation doctrine which are two sides of the same coin of the constitutional principle. While delegation doctrine allows transfer or power to an agency, non-delegation doctrine envisages that there are certain restrictions to the said transfer of power. Thus, the Congress cannot transfer its legislative power to the president as held in Field v Clark, 143 U.S. 649,692 (1892) by the U.S. Supreme court since it is a universal principle for upholding of “integrity and maintenance of the system of government” (De Leo, 2008, Jr p 16). Discretion It is the freedom to choose any one of the available alternatives which agencies can exercise. The delegation of power made to an agency by the Congress further enables the agency to decide how it can do its work while exercising the delegated power. Thus, if the Congress makes law enabling the Environmental Protection Agency (EPA) to clean up the polluted air, the EPA makes a regulation by using its discretion banning lead in gasoline although the Congress does not stipulate lead should be disallowed. The EPA does it by using its expertise and knowledge to redress the pollution problem. The discretionary action of the agencies is called into question in the courts which will analyse and review the action or decision of the agency (De Leo, 2008, Jr p 20-21). Procedural and substantive law The administrative law also has substantive and procedural dimensions as the other branches of law have. For example, while the formalities involved in claiming Social Security disability or retirement benefits are procedural law, the regulations prescribing qualifications for claiming the said benefits are substantive law. Another example would be formalities for applying for licence to establish a nuclear power plant are procedural law and the regulations dealing with the plant’s safety and radiation levels are substantive law (De Leo, 2008, Jr p 21-22). Sources of Administrative law The sources of administrative law are “the Constitution, statutes, common law, executive orders, and rules or regulations” (De Leo, 2008, Jr p 22). The Constitution is the highest authority beyond which no federal, state and local agencies can operate. Its seven articles, Bill of Rights containing first ten amendments and subsequent amendments numbering seventeen encompass various rights such as freedom of speech, due process and equal protection among other things. The agencies in their day to day activities are expected to ensure compliance with the constitutional rights of the individuals or entities concerned. The U.S.Supreme Court held in Goldberg v Kelly, 397 U.S.254 (1970) held that there was no due process observed while the State terminated an individual’s welfare benefits without notice and hearing. Statutes are enacted by the Federal as well as the State governments adding further rights conferred by the constitution. They have created agencies such as Department of Agriculture and Department of Education etc as mentioned elsewhere. Administrative Procedure Act (APA) of the Federal Government governs the functioning of federal agencies and their State counterparts also have their respective APAs. Common law comes into play when there are no statutes to deal with an issue. The common law which is a collection of law pronounced by the judges deals with areas such as negligence etc. Though chances of common law playing any role in administrative law are minimal, it can still interfere where there is no regulation, statute, constructional provision on a given issue. Yet another source of administrative law is the executive order of the President or Governor pronouncing a policy to be followed by an agency. Rules and regulations are also pronounced by the agencies in order to enforce a policy or statute (De Leo, 2008, Jr p 22-24). Judicial review Administrative decisions can be subjected to judicial review in a court having jurisdiction over the issue at dispute. Federal courts can entertain petition for review of the decision of a federal agency under two statutory sources. Generally, agency’s enabling act would provide for judicial review of the agency’s decisions failing which the APA and the constitutional standing can be invoked by the aggrieved party. In this connection, it must be noted that there is a difference between jurisdiction and reviewability which are separate issues and merely because there is a jurisdiction, it does not necessarily mean there is reviewability also and vice versa. Jurisdiction means whether a court has been authorized to review a class a class of disputes. Although federal courts may have authority over federal question, they need not necessarily have to review all the disputes over the agencies’ action arising out of federal law. Reviewability is similar to cause of action present. An action can be reviewed only if an agency’s action is open for review by specific provision in the agency’s enabling Act or if the requirement of APA are complied with. As a rule of thumb, appeal courts have the jurisdiction in case of existence of administrative records failing which the district courts would have the jurisdiction. This rule of thumb is not being insisted upon of late since the enabling statutes define the forum for judicial review. An exception can be found in the Social Security Act which provides for review by the District courts the orders of agency refusing or terminating benefits although they have been adjudicated by the agencies. Although it is common belief that an agency’s action can be subjected to judicial review, there are reasons rebutting the common belief or more precisely the presumptions in favour of review. There is presumption because an agency’s arbitrary actions and decision can only be curbed by the judicial review. Prior to enactment of the APA, there was no presumption in favour of judicial review (Beerman, 2006 p 30-36) Conclusion Thus the administrative law is a procedural framework for administrative actions. The administrative action results in a continuous government act following the congressional and judicial procedures. Works cited Beerman Jack M, 2006, Administrative Law, Aspen Publishers, ed 2 DeLeo John, Jr, 2008 Administrative Law Cengage Learning Field v Clark, 143 U.S. 649,692 (1892) Franklin v Massachusetts, 505 U.S.788 (1992) Funk F William and Seamon H Richard, 2009, Aspen Publishers Ed 3 Goldberg v Kelly, 397 U.S.254 (1970) Legal Information Institute, Administrative Law, Cornell University Law School accessed 24 July 2010 Marbury v Madison, 5 US 137 (1803). Outline Administrative law deals with the actions of the governmental agencies created for the purpose of carrying out what the President is expected to carry out as an Executive since he cannot himself do all of them. The agencies are regulated by the Federal Administrative Procedure Act in addition to what has been provided for in their own enabling statutes. There are three branches of the Government acting as Congress, Executive, and Judiciary. The Governmental agencies created by the statutes are in a way unofficial fourth branch. The above said three branches are subject to checks and balances by one another. Thus, no branch can act beyond its scope or powers. The separation of powers is made possible by the creation of the above said three branches so that concentration of powers can be avoided. The executive’s power is further diluted by the creation of agencies and overseeing of their actions and controlling them by judicial review. Federalism is created by further dilution of powers among the federal government and state governments. Discretion is available to the agencies to choose between the alternatives by the delegation of power conferred the congress to them in implementing or executing the government’s polices. This is subject to due process and judicial review. Due process envisages that no right can be taken away without proper enquiry, notice and hearing by the agency entrusted with the particular responsibility. Their actions are also subjected to judicial review so that they do not exceed their brief. Thus, administrative law is concerned with rule making power of the agencies, control of their functioning, questioning their any arbitrary action through judicial review. . Read More