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.
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:
You get the picture:
just about any license or permission for which you must seek government
approval involves administrative law.
- applying for a building permit
- applying for Medicare
- applying for an occupational license
- applying for a driver’s license
- applying for a business license
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
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?”