Administrative law OUTLINE- draft-1

Administrative law OUTLINE- draft-1 - PART ONE...

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PART ONE - INSTITUTIONAL FRAMEWORK I. N ATURE AND FUNCTIONS OF ADMINISTRATIVE AGENCIES - Federal administrative procedure is the focus, and the Administrative Procedure Act of 1946 (APA) is its statutory C. We extract general principles from particular statutory contexts, and are interested in the policy context only as it affects the administrative procedures being created or applied, or as administrative procedure affects policy. - State administrative law draws on the federal, under the Model State APA. Colorado has adopted the Model Act, with local variations. A. The origin and mandate of Admin Agencies AAs (1) public interest- in response to problems and (2) public choice- outcome of the struggle between self-serving legislators and factions, interest groups, and powerful individuals. Most AAs combine all 3 primary C-al functions. That is: (1) Promulgate rules with force of law, as Cs under Art. I (2) Investigate compliance w/ rules & statutes + bring enforcement against violators, as the exec would under Article II. (3) Adjudicate statutory claims as a federal court could do under Art. III. Responses to the “4th branch” problem : 1. Separation of functions w/in AAs (agency prosecutors can be forbidden to supervise agency judges). 2. Statutes, as the APA, or an agency’s enabling legislation can specify fair procedures that the agency must follow. 3. The C-al function of execution necessarily includes both law-making (“quasi-legislative”) and law-applying (“quasi- judicial”) activities—a simple functional distinction among activities cannot solve our separation of powers concerns. 4. The nature of the supervisory relationships between branches & AAs is central to satisfying separation of powers concerns (P nominates heads of AAs, Cs empowers + funds the ags, & cts ensure that agency actions conform to law). - Market Failure: Government takes action when there is a market failure and in ascending order of compulsion, that are: a. Government provision of information. b. Imposition of a tax to reflect and deter risk creation, for example a tax on injury rates. (“Internalizing spillovers.”) c. Performance standards, ex: a rule that injury rates must not exceed some percentage of historic rates for the industry. d. “Command and control” regulation, specifying actions industries must take, for example “reversing beepers.” Government says you need to do it à rigid. UPS trucks beeper for reverse, but ear protection from noise needed. - Replacing Market failure with Government Failure : how can we minimize the level of government failure that is replacing market failure? In particular: 1. How can we avoid “capture” of the government program by affected private interests? 2. How can we assess how well agencies are doing their jobs? 2. Considering the culture & history of an agency, how should we expect it to behave, and how can we affect its behavior?
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