Administrative law of the United States

United States administrative law encompasses a number of statutes and cases that define the extent of powers and responsibilities held by administrative agencies of the United States Government. The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.

Justice Breyer defines administrative law in four parts. Namely, the legal rules and principles that: (1) define the authority and structure of administrative agencies; (2) specify the procedural formalities employed by agencies; (3) determine the validity of agency decisions; and (4) define the role of reviewing courts and other governmental entities in relation to administrative agencies.[1]

U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power. Agencies "legislate" through rulemaking—the power to promulgate (or issue) regulations. Administrative law is codified as the Code of Federal Regulations.


The authority of administrative agencies stems from their organic statute, and must be consistent with constitutional constraints and legislative intent. Generally speaking, therefore, agencies do not have the power to enact a regulation where:

  1. The regulation is an unconstitutional delegation of power (under current caselaw, courts almost never invalidate a regulation on this ground);
  2. The organic statute explicitly denies authority (but note that failure to grant authority in later legislative efforts is not dispositive);
  3. The regulation is not based on factual findings;
  4. The regulation is not pursuant to serving the "public convenience, interest, or necessity"; or
  5. The regulation is outside the agency's statutory purpose as articulated in its organic statute.

Judicial review

Studies of judicial review typically find that 70% of agency rules are upheld with the Supreme Court upholding 91% of rules; a 2011 empirical study of judicial review found that 76% were upheld,[2] although the D.C. Circuit, which hears many administrative law cases, has been found less deferential than other courts.[3]

Adjudication versus rulemaking

Agency acts are divided into two broad categories: rulemaking and adjudication. The scope of these two categories is defined in three ways:

Londoner/Bimetallic definition

Factors tending to make an act adjudicative in nature:

  • Involving a small number of people
  • Individuals involved are specially affected by the act
  • Decision based on the facts of an individual case, rather than policy concerns

Cases in which an act was ruled to be adjudicative:

Cases in which an act was ruled to be rulemaking:

Administrative Procedure Act

According to section 551 of the Administrative Procedure Act,

  • Rulemaking is "an agency process for formulating, amending, or repealing a rule."
    • A rule in turn is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy;"
  • Adjudication is "an agency process for the formulation of an order;"
    • An order in turn is "the whole or part of a final disposition ... of an agency in a matter other than rule making but including licensing;"


Right to a hearing

There are two ways that an individual can attain the right to a hearing in an adjudicative proceeding. First, the Due Process clause of the 5th Amendment or 14th Amendment can require that a hearing be held if the interest that is being adjudicated is sufficiently important or if, without a hearing, there is a strong chance that the petitioner will be erroneously denied that interest.[4] A hearing can also be required if a statute somehow mandates the agency to hold formal hearings when adjudicating certain issues.

Federal tribunals


Administrative law statutes

The primary administrative law statutes and other laws that govern agency rule making include:

  • The Administrative Procedure Act, 5 U.S.C. §§ 552 and 553
  • The Housekeeping Act, 5 U.S.C. § 301, which gives heads of agencies authority to issue rules for agency employees
  • The Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq., which requires agencies to consider the needs of small entities in rule making
  • The Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq., which limits the power of an agency to collect information from the public
  • The Congressional Review Act, 5 U.S.C. §§ 801-808, which gives Congress the authority to review and veto any agency regulation
  • The Independent Offices Appropriations Act of 1952, 31 U.S.C. §§ 9701, which limits the power of agencies to set user fees
  • Executive Order 12,866, which requires agencies to use cost-benefit balancing in all regulatory actions

Scope and extent of rulemaking power

Federal administrative agencies, when granted the power to do so in a statutory grant of authority from Congress, may promulgate rules that have the effect of substantive law. The power must be granted in the agency's organic statute, and extends so far as fairly inferrable from the statutory language.[5] Statutory grants of authority to agencies are generally construed more strictly than the "necessary and proper" power of Congress granted in Article I, section 8, clause 18 of the Constitution. Some agencies have power to promulgate both substantive rules as well as procedural rules; some (like the IRS, EEOC, and Patent and Trademark Office) may promulgate only procedural rules. By contrast, many states, such as Kentucky, have been less willing to allow their agencies to promulgate rules with the effect of substantive law.

Agencies may not promulgate retroactive rules unless expressly granted such power by the organic statute. Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988)

For most agencies, the choice of whether to promulgate rules or proceed by common law adjudicative decisions rests in the informed discretion of agencies. SEC v. Chenery Corp., 332 U.S. 194 (1947) (Dissenting opinion arguing that the decision permitted agencies to rule arbitrarily, without law). Agencies may also announce new policies in the course of such adjudications. Some agencies' organic statutes obligate the agency to use rulemaking, for example, the U.S. Patent and Trademark Office, 35 U.S.C. § 2(b)(2)(B).

Agencies are permitted to rely on rules in reaching their decisions rather than adjudicate, where the promulgation of the rules is within the agency's statutory authority, and the rules themselves are not arbitrary or capricious. Heckler v. Campbell, 461 U.S. 458 (1983).

Agencies must abide by their own rules and regulations. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Type of rulemaking

There are three types of rulemaking:

  • Formal rulemaking, which is rulemaking for which the organic statute requires that rules be "made on the record after agency opportunity for hearing" (that is, a hearing that is taken down by a transcriptionist into the record) and for which the APA prescribes particular procedures; the phrase is required for formal rulemaking; simply requiring that rules be made "after a hearing" does not trigger the requirements of formal rulemaking;
  • Informal rulemaking, which is rulemaking for which no procedural requirements are prescribed in the organic statute, and for which the APA requires notice and comment;
  • Hybrid rulemaking, which is rulemaking for which particular procedural requirements beyond notice and comment, but not rising to the level of formal rulemaking; and
  • Publication rulemaking, typically for procedural rules and interpretative rules, that an agency may promulgate by publication in the Federal Register.

Number of rules

About 2,500 to 4,000 rules are published per year, and in 2011 32% of the Federal Register pages were in the "Rules and Regulation" section.[6] However, included in the total number of rules are the repeal of rules and also minor rules.[6] The GAO maintains a Federal Rules Database and in in 2012, 68% of rules were classified as Routine/Info/Other while the remainder were Significant/Substantive.[6] In addition to an overall number of rules, there are "major rules" and "significant" rules.

The Congressional Review Act passed in 1996 created a category of major rules, which are those that the Office of Information and Regulatory Affairs determines result in either: (1) "an annual effect on the economy of $100,000,000," (2) "a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions," or (3) "significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets."[6] If the rule is major, an additional report must be provided to congressional committees.[6] From 1997 to 2012, the number of major rules has ranged from 100 (2010) to 50 (2002).[6]

E.O. (Executive Order) 12866, which was issued in 1993, requires agencies (other than independent agencies) to submit proposed rules for reviews by OIRA if the rule meets certain criteria.[6] Rules that are "economically significant" (meeting the criteria of "an annual effect on the economy of $100 million or more or adversely affect in a material way the economy") require a cost-benefit analysis.[6]

State-level administrative law

States may have their own administrative law; for example, a state constitution may allow the legislature to delegate rule-making authority to an executive or independent agency, and state governments may provide an administrative appeal process for people who are dissatisfied with decisions made by certain state agencies.

The states have widely instituted Home Rule by which the Cities are given Broad Powers that allow them to enact any law that is not prohibited by the States Constitutions or already addressed by State Laws or State Codes. This widespread institution of Home Rule has resulted in more administrative laws being passed by the cities. Individual rights are being exponentially eroded by Administrative Law(s).

California has an extensive body of administrative law including a hearing agency that requires that its administrative law judges be lawyers. California statutory law governing the hearing agency states that non-lawyers may appear before it. However, California case law holds that former attorneys who no longer practice law may not appear before it. Most California agencies adjudicate license cases utilizing the California Attorney General's legal staff. However, others (including the Department of Corporations and Insurance) utilize their own legal staff.

Journals and publications

See also


  1. ^ Breyer, Stephen, et al., Administrative Law & Regulatory Policy, Fifth Edition, at p. 3 (Aspen Pub. 2001)
  2. ^ Pierce RJ, Weiss J. (2011). An Empirical Study of Agency Interpretations of Agency Rules. Administrative Law Review.
  3. ^ Pierce, RJ. (2011). What Do the Studies of Judicial Review of Agency Actions Mean?. Administrative Law Review.
  4. ^ Mathews v. Eldridge
  5. ^ National Petroleum Refiners Assn. v. FTC, 482 F.2d 672 (D.C. Cir. 1983), cert. denied, 415 U.S. 951 (1974).
  6. ^ a b c d e f g h Carey MP. (2013). Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations,and Pages in the Federal Register. CRS.

External links

  • ABA Section of Administrative Law & Regulatory Practice
  • LII Law about administrative law
  • Administrative Law and Procedure, legal definitions
  • Federal Administrative Law: A Brief Overview, Law Librarians' Society of Washington, D.C.
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