Exercise 9_Due date March 9

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Exercise 9 Regulatory Management:

Administrative Law

WHAT IS ADMINISTRATIVE LAW?

In addition to services and projects, public agencies are responsible for enforcing government regulations. While private and not-for-profit organizations, like government agencies, have programs, projects, and outsourcing, the public sector uniquely has the authority to enforce regulations. Regulatory manage- ment is the substance of administrative law. The federal Administrative Procedures Act of 1946, which has been amended only a few times since its passage, is the most important single codification of administrative law. Most, but not all, states have a law similar to the federal one. However, administra- tive law is tucked away in many different places-in federal and state constitutions, statutes, executive orders, signing statements, administrative rules, waivers, treaties, and court decisions. All of these things taken together as they affect public administra- tion constitute administrative law.

WHY IS ADMINISTRATIVE LAW IMPORTANT?

The traditional theory of public administration held that elected officials make policy and administrators implement it. Whether this neat distinction ever applied in practice is doubtful. Certainly it does not apply today. The scope of modern government is so vast and the issues government confronts are so technically complex that elected officials can attend directly only to a minute proportion of the items on the publ ic agenda. Consequently, much of the day-to-day responsibility for making public policy is delegated-formally or informally-to publ ic administrators. This is what is meant by the concept

of the administrative state. Public administrators, not legislators, are the ones who, for example, determine safety standards for oil drilling, set the specific requirements for health insurance companies, define what can be classified as organic food, and decide thousands of other questions, large and small. General laws are passed and administrators fill in the details-and the devil is in the details!

Administrative law sets forth the extent to which agencies are allowed to fill in the details, the procedures that must be used in doing so, and the rights of those affected by agency actions to appeal administrative decisions. Administrative law is grounded in the basic separation of powers doctrine incorporated into governance in the United States. Agencies have important inherent powers, but these powers are limited by the respective powers of legislatures and courts.

STATUS OF ADMINISTRATIVE LAW

Whenever a legislative body passesa law, it specifies which executive branch agency (existing or new) has the authority for making detailed rules to describe what the affected individuals and organizations must do to comply with the law. And the limits of an agency's authority are set by the legislature as well. State legislatures, for example, have passed laws that require drivers of cars to have a license based on requirements to ensure safety. These laws establish an agency to license drivers. That agency then determines what kinds of written tests, eye examina- tions, and performance tests applicants must pass to get a driver's license. The agency, however, does not have statutory authority to venture into other areas, such as selling shirts or encouraging the consumption

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of ice cream. This agency, in fact, does not even have authority over other issues involving highway safety, such as setting speed limits. There is another agency that has authority over that.

If the driver's licensing agency did something that the state legislature did not like, the legislature could pass a law directing it to do something differently. Statutes trump administrative rules. It is rare that a legislature changes the regulatory decisions of an administrative agency and it is important to know that those decisions have the force of law.

If the agency did something that exceeded its authority (sold shirts) or violated its own rules (singled out you to have a higher exam score on a drivers test than was normally considered passing), then the courts are available to check the agency. Courts generally confine themselves in administra- tive law to procedural and jurisdictional issues. They do not substitute the wisdom of judges for the wisdom of administrators. A court would not second-guess the agency administering drivers' licenses on the content of examinations or what constitutes a passing score.

THE ADMINISTRATIVE PROCEDURES ACT

The federal Administrative Procedures Act (APA) was a response to the confusion caused when there were no standard guidelines for when and how an agency should promulgate rules to implement laws and for how, if at all, someone might appeal administrative actions. The American Bar Association played a major role in drafting standards that would apply to all federal agencies. In a few cases, Congress will set a different standard or procedure for a particular agency. The basic structure of the APA was set in 1946 and has been amended only a few times since then. Two major amendments that you may be familiar with are the Freedom of Information Act and the Privacy Act. The Freedom of Information Act (section 552 of the APA) requires federal agencies to make various documents and records available to the public. The Privacy Act (section 552a of the APA) prohibits agencies from disclosing information about individuals without their consent and gives individu- als the right to inspect records maintained on them. If you've ever asked a professor to fill out a letter of recommendation for you, you may have noticed a

Privacy Act disclaimer-a place on the form that asks if you wish to waive your right of access to the letter so as to keep it confidential.

The heart of the APA, though, deals with ru Ie mak- ing and the adjudication of disputes. A rule is an action taken by an administrative agency that describes how a law will be interpreted and applied by the agency. For example, the Federal Aviation Administration (FAA) has issued a rule if it adopts a policy requiring all aircraft flying within a certain distance of major airports (class B airspace) to have onboard radio equipment (a mode C transponder) that automatically provides air traffic controllers with information about aircraft altitude. The APA provides for a court-like process for resolving disagreements over how admin- istrative rules are applied in specific cases. If the FAA revokes the license of John Smith, a pilot who flew through the Philadelphia class B airspace on April 15, 2009, without a mode C transponder, Mr. Smith will have the opportunity to challenge the FAA action before an administrative law judge (ALJ).

Administrative rules have the force of law, and violators can be fined or their license to operate a business or service can be withdrawn. A full treat- ment of APA requirements for rule making and adju- dication is beyond the scope of this chapter. Suffice it to say that the APA recognizes several different types of rules and rule making and a range of adju- dicatory procedures. The most rigorous rule-making requirements are imposed on agencies that propose substantive rules under formal rule-making proce- dures. When establishing new rules, agencies must follow very strict guidelines, publish proposed rules in the Federal Register (www.gpoaccess.gov/fr), hear testimony from all affected parties, and issue the rule based on "substantial evidence" in the written record. Another process, which applies to clarifying how existing rules will be applied, does not require a hearing, but does stipulate that the proposed clarifications be published in the Federal Register to invite public comment before the clarifications apply.

The same variation appl ies to adjudicatory procedures. Some actions simply require a notice of charges and an opportunity for the affected party to present his or her side of the story. Other actions require far more detailed safeguards of due process rights with the adjudicatory procedure resembling in its structure a full-blown trial complete with attorneys,

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cross-examination, rules of evidentiary disclosure, and so forth. What set of procedures must be followed depends, in general, on the seriousness of the interests involved and the costs of making a mistake. Courts have found that a student challenging a suspension from school is entitled to considerably less protection, for instance, than a person whose disability benefits are about to be terminated.

Although the provisions of the APA sound complex-and in many ways they are-the general principle of the statute is simple: If agencies follow correct procedures, the public interest will be pro- tected. This process orientation reflects the belief, fundamental to American society in general and to American jurisprudence in particular, that if every- one's rights are respected and due process is observed, justice will have been done and outcomes wi II take care of themselves. The tricky part with respect to public administration is striking a balance between this precept and the need for administrative efficiency. Governance in the modern state without administrative discretion is inconceivable. Admin- istrative discretion without constraint would be unbearable. Administrative law, properly applied, constrains the discretion of administrative regulators without destroying it.

Some federal and state agencies have special- ized, independent employees called ALJs who serve as hearing officers and judges in disputes arising between an agency and those affected by the agency. Certain agencies also have elaborate procedures for making decisions or promulgating rules and regulations, procedures that are intended to guarantee fairness and due process. This is especially true of regulatory agencies such as the Federal Trade Commission (FTC), Federal Communications Commission (FCC), Interstate Commerce Commission (lCC), and Securities and Exchange Commission (SEC), among others, which are charged with quasi-legislative or quasi- judicial functions.

Courts generally insist that the administrative appeal process be used before someone takes a dispute into the courtroom. Courts confine any review of the decisions of ALJs to the question of

whether the ALJ followed proper procedures and kept the scope of decisions within his or her area of authority. Cou rts do not second-guess the substantive decisions of ALJs.

FURTHER READING

A good text on administrative law is Steven J. Cann, Administrative Law, 4th ed. (Thousand Oaks, CA: Sage, 2005). See also, William F. Funk and Richard H. Seamon, Administrative Law. Examples and Explanations, 3rd ed. (New York: Aspen Publishers, 2009).

Good essays on some of the issues in American administrative law can be found in Peter Schuck, ed., Foundations of Administrative Law (New York: Oxford University Press, 1994); Phillip J. Cooper and Chester A. Newland, eds., Handbook of Public Law and Administration (San Francisco: lossey-Bass, 1997); and David Rosenbloom and David H. Rosenbloom Administrative Law for Public Managers (New York: Westview, 2003). State-level concerns-and an analysis of the Model State Administrative Procedures Act-form the core of Michael Asimow, Arthur Earl Bonfield, and Ronald M. Levin, State and Federal Administrative Law, 2nd ed. (Eagan, MN: Thomas West, 2007).

For discussions of the rule-making process, see Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy, 3rd ed. (Washington, DC: Congressional Quarterly Press, 2003) and Cindy Skrycki, The Regulators: Anonymous Power Brokers in American Politics (Lanham, MD: Rowman and Littlefield, 2003).

On the Web www.gpoaccess.gov/fr As presented above, the Federal Register is the source for proposed and approved regulations. Publication in the Federal Register is a key, required part in the process for establishing administrative law.

Most states have processes similar to that of federal government.

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Overview of Exercise This role play illustrates the issues of interpreting a statute, applying administrative rules based on that statute, and resolving disputes that occur in this application. The substance of the role play is Title IX of the 1972 Amendment to the Education Act, which mandates gender equity in athletics, including intercollegiate athletics. The role play begins with the parties presenting their cases and making their arguments. It ends with a ruling by an administrative law judge (or, if your instructor so chooses, a panel of administrative law judges).

Your instructor may want to supplement this role play with one in which you make rules. If so, the same documents and facts will be used, but instead of adjudicating a dispute, the focus will be on drafting new rules to define and achieve gender equity in intercollegiate athletics. This role play will not include an administrative law judge, but there will still be interested and affected parties and an administrative agency.

INSTRUCTIONS

Step One Your instructor will assign you to one of the follow- ing roles:

Attorney for Women's Water Polo Club at College of Mine (plaintiff)

Attorney for College of Mine (codefendant)

Regional Director of Office for Civil Rights (codefendant)

Administrative law judge in federal Department of Education

All participants should read the role information provided in Forms 41 through 44.

Step Two All participants should read the background infor- mation, the administrative rule, and the clarification presented on Forms 45, 46, and 47.

Step Three Plaintiff's attorney should prepare and present an oral argument to the administrative law judge

seeking a ruling that College of Mine must upgrade women's water polo to a varsity sport.

Step Four College of Mi ne attorney should prepare and present an oral argument to the administrative law judge denying plaintiff's request and finding the college in compliance with Title IX.

Step Five Office for Civil Rights regional director should prepare and present an oral argument to the administrative law judge upholding the finding of noncompliance for College of Mine and denying plai ntiff's request.

Step Six (optional) The administrative law judge allows each party to present a rebuttal and closing argument.

Step Seven The administrative law judge reaches and announces a decision, explaining the rationale to the contending parties.

Step Eight Answer the questions on Form 48

INSTRUCTIONS FOR OPTIONAL EXERCISE IN RULE MAKING

Step One Your instructor will assign the administrative law judge from the previous exercise to a new role. The regional Office for Civil Rights will be reconstituted as the national Office for Civil Rights in the federal Department of Education. Other role assignments continue.

Step Two The Office for Civil Rights drafts revisions to the rules in Forms 45 and 46. The revisions should address the issues raised in the previous exercise adjudicating the dispute between the College of

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Mine and the women's water polo club. Make the changes on Form 45 and/or Form 46 and distribute the draft revisions to the rest of the class.

Step Three The Office for Civil Rights holds a hearing and receives testimony on the draft revisions. Those presenting testimony should be as specific as possi- ble about the features that they like and dislike. Requests for changes in the draft should be specific and in writing.

Step Four The Office for Civil Rights considers whether or not to make any changes in its draft and issues a final rule. Again, incorporate the changes on Form 45 and/or Form 46.

Step Five Answer the questions on Form 48.