Administrative Law Defined
A Legal Moment

What is Administrative Law?

   Most of us interact with the law in a "branch" of government that is not even mentioned in the Constitution.

   You may recall from past history or civics classes that the Constitution authorizes three branches of government:  Congress (legislative), the Presidency (executive), and the Courts (judicial).  So . . . what is administrative law?

   As the quoted definition states, administrative law is law created and implemented by government agencies.  It is carried out as part of the executive branch of government under authority delegated from Congress.  In essence, administrative law is bureaucracy.  Administrative law exists at the federal, state and local levels.
“Body of law created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out regulatory powers and duties of such agencies.”
                                                - Black’s Law Dictionary

   If there is a dispute in the administrative law context, the agencies also have the power to adjudicate those disputes internally through their own administrative law judges.  At the end of the administrative judicial process, the parties to the dispute may continue to litigate in the traditional court system; however, the authority of the judiciary is limited to review of the decision of the administrative law judge.  When an administrative dispute reaches the courts, the litigation does not start over from scratch.
   The next logical question is: Why is this important?  First, it is important because the vast majority of people will experience the legal system through an administrative law context rather than through the legislature or the judiciary.  Here are just a few examples of administrative law interactions:
  • applying for a building permit
  • applying for Medicare
  • applying for an occupational license
  • applying for a driver’s license
  • applying for a business license
   You get the picture:  just about any license or permission for which you must seek government approval involves administrative law.
   The second reason administrative law is important is its role in our political system.  The legislature, whether federal, state, or local, has all rule-making authority.  In administrative law, the legislature delegates some of that authority to an administrative agency, and often delegates significant discretion to non-elected government employees.  People argue whether that delegation is constitutional inasmuch as it seems that Congress is abdicating its responsibility to make law.
   For example, one significant case, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), involved Congressional delegation to the Department of Labor to adopt health standards that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”  The agency adopted a standard for benzene exposure of 1 part per million (ppm) that was challenged in court.  The Supreme Court found that the agency adopted this standard “on a series of assumptions that some leukemias might result from exposure to 10 ppm and the number of cases might be reduced by reducing the exposure level to 1ppm.”  The Court did not strike down the delegation of authority, but did find, in a split decision, that the agency abused its authority in adopting the 1ppm standard.
   Policy arguments for upholding broad, non-specific delegations such as this are that agency decisions are based on in-depth scientific review that Congress cannot do, that agency decisions are immune from the influence of campaign contributions to elected officials, and that Congress can always override an agency decision by changing the law.
   Policy arguments against broad delegations are that voting citizens cannot hold agency officials accountable if they do not like the agency decision and that Congress is better able to make political tradeoff decisions.
   The debate from this case continues as you can tell from following the news every day.  Rules were announced this week on the issuance of green cards and the endangered species act with judicial challenges promised.  The tradeoff is between allowing government to address important issues of health, safety, and welfare in a professional and efficient manner and providing proper oversight of agencies, which is often stated as, “Who will watch the watchers?”



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Greg Gregory is an attorney and shareholder at Marshall, Roth & Gregory, PC. Recognized as a "Best Lawyer"™ (Real Estate) in 2019 Greg's practice encompasses all forms of business and real estate transactions.
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