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Administrative law is the body of law that deals with the procedures, authority, and actions involved in public administration. It incorporates the various powers, responsibilities, duties, and functions of public agencies and agency officials in the attempted advancement of their respective missions, along with judicial decisions that help structure these exercises of authority. The expansion and progression of administrative law have been concomitant with the growth of the administrative state in the twentieth century as governmental bureaucracy has developed to deal with pressing social, economic, and political problems emanating from modern society. In other words, at its core, administrative law is the branch of law that regulates the exercise of authority by executive branch officials.
A focus of much of administrative law is on the protocols and procedures to which government agencies must adhere to take legal and constitutionally acceptable actions that affect private parties. Thus, it can be said that the corpus of administrative law is composed of efforts to ensure that governmental agencies effectively implement public policies designed to advance the public interest, and at the same time to guarantee that the liberty of private interests are safeguarded from possible and potential administrative infringements. Rephrased, administrative law is a fluid and ever-evolving area of law that endeavors to reconcile and synthesize public and private interests—agencies are in place to help government fulfill its mission, but they may not violate individual liberties.
In the American context at the federal level, there are four main sources of administrative law: the U.S. Constitution, the Administrative Procedure Act of 1946 (APA), particular agency enabling acts, and administrative common law. The APA is a federal law that directly lays out the procedures agencies must follow and creates the legal structure for review by the federal courts of agency actions. At the core of motivation behind the enactment of the APA was Congress’s wish to not allow executive agencies so much leeway in the conduct of their duties that executive agents would be able to drift away from congressional intentions and desires in the law that the executive was implementing. The great and abrupt growth of the administrative state under President Franklin Roosevelt communicated to Congress the need for such structures as the APA to rein in and guide executive actions. Similar legislative concerns are manifested also in the drafting of agency enabling acts that set out the boundaries of agency authority and purpose and the use of the legislative veto .The actual, day-to-day implementation of public policy and enforcement of laws remains a continuing source of political and institutional tension between the executive branch and the Congress.
Agencies are the entities that actually execute the laws that the legislature has enacted, and they engage in several types of activities when enforcing these laws. These agency activities include the regulation of private conduct, the disbursement of entitlements, the management of governmental property, the granting of licenses and permits, engaging in investigations and gathering of information, and the making of public policy. The vast majority of what agency officials do ends up having important consequences on the lives of private parties, by preventing them or allowing them to engage in a particular action, or giving them or taking away some form of benefit. Two important sets of actions that agencies engage in when performing such activities are rulemaking and the issuance of an order after an adjudication of a dispute. Rulemaking is essentially where an agency promulgates a general rule or regulation that is filling in the details of statutory policy and that rule possesses the force of law. The issuance of an administrative order is more specifically tailored to a particular dispute in which a private party is required, after an administrative hearing, to conform to the law by doing or refraining from doing certain things.
There is variation among liberal democracies in their respective administrative law structures. For example, administrative law in France and Sweden is administered by a system of highly developed separate administrative courts that are distinct from ordinary courts in that they focus solely on public law disputes. Such administrative courts are more readily seen and stronger in countries with a history of civil law legal systems than in nations with a common law legal heritage (such as the United States and Great Britain). The purpose of these courts is to closely oversee public agency actions. In the French system, all administrative decisions produced by executive officials are subject to review by the Conseil d’État (Council of State), which sits at the apex of this system of administrative lower tribunals and intermediate courts of appeals. This particular court possesses much authority, independence, and prestige in the French legal system, and there is no comparable analogue to it in either the United States or Great Britain. Through its myriad decisions over the past two hundred years, the Conseil d’État has developed abiding legal precedents and principles concerning administrative power as exercised by the state. Thus, the leading administrative court in France constitutes a viable check to executive power, as well as lending legitimacy to various state actions. The judiciary’s use of administrative law is a leading method by which bureaucrats can be held accountable and to ensure executive fidelity to the law and correct procedures.
Some controversy and ongoing questions revolve around agency activities and how administrative law has developed to deal with those concerns. A variety of nations have opted for an external watchdog of an ombudsman to help assist in scrutinizing potentially problematic actions taken by government administrators. The ombudsman is an appointed public official who has the authority to investigate accusations of corrupt, incompetent, or incorrect actions taken by bureaucrats. This oversight mechanism started in Scandinavia and has filtered out over time to other European democracies and to the European Union, but its full potential is yet to be seen.
In the United States, an important worry is that the scope of agency action has worked to undermine the separation-of-powers system—legislative, executive, and judicial—as laid out in the Constitution. The U.S. Supreme Court has held that it is constitutionally permissible for executive agencies to exert authority that one normally associates with the legislative and judicial branches as long as judicial review of agency decisions is available to the affected parties and agencies operate only in areas that are clearly under their regulatory jurisdiction and expertise. Thus, this merging of governmental powers is constitutionally satisfactory as long as appropriate safeguards are kept in place.
Of special concern in these separation-of-powers considerations is the delegation doctrine. The delegation doctrine prohibits excessive delegation of discretionary powers by the Congress to federal agencies. The major question here is where exactly is the threshold when the U.S. Congress has delegated too much authority to an agency so that the agency is actually legislating the law, and not the Congress itself? From the 1940s to the present, the delegation doctrine has become essentially dormant in the federal courts and does not pose much of a constraint on Congress, with Congress giving healthy amounts of leeway to agencies in the implementation of federal law. As long as some type of intelligible principle is articulated in the relevant law to generally guide the implementing agency, the courts will uphold the agency action as meeting the requirements of the delegation doctrine and is thus constitutional.
- Breyer, Stephen G., Adrian Vermeul, Richard B. Stewart, and Cass Sunstein. Administrative Law and Regulatory Policy: Problems, Texts, and Cases. New York: Aspen, 2006.
- Cass, Ronald A., Colin S. Driver, and Jack M. Beermann. Administrative Law: Cases and Materials. New York: Aspen, 2006.
- Funk, William F., and Richard H. Seamon. Administrative Law: Examples and Explanations, 3rd ed. New York: Aspen, 2009.
- Hall, Daniel E., and John Feldmeier. Administrative Law: Bureaucracy and Democracy, 4th ed. Upper Saddle River, N.J.: Prentice Hall, 2008.
- Strauss, Peter L. Administrative Justice in the United States, 2nd ed. Durham, N.C.: Carolina Academic Press, 2002.
- Warren, Kenneth F. Administrative Law in the Political System, 4th ed. Boulder, Colo.:Westview, 2004.
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