Administrative Law is about governance structure and procedure for government agencies. As described by Professor Osamudia James, "Federal government regulation through agencies is pervasive: look closely at any area of your life, and you will find a federal agency lurking in the background." In essence, how we govern agencies affects the law that agencies make. Agencies play a critical role in administering justice. Or as you will see throughout the semester, curtailing justice. 

For instance, agencies decide who can pollute and how much. Agencies determine the limits of corporate power, breaking up monopolies, and regulating industries like social media platforms and banks. Law enforcement, immigration enforcement, and prison systems are agencies. When we work on issues related to immigration law, environmental law, disability, poverty law, health care access, corporate accountability, policing, and incarceration, we are participating in or practicing administrative law. 

At CUNY School of Law, we call our administrative law class "Public Institutions" to highlight the public nature of government agencies.  In law school, we largely emphasize the importance of courts as the locus of decision making, and on the common law as the body of decisions that matter most. In contrast, administrative law plays a critical role, focusing agencies as decision makers-- and the statutes passed by Congress as the authority for agency action.

Government agencies belong to us, they are funded by our tax dollars and staffed by appointees chosen by officials we elect. Public institutions are supposed to carry out programs for our benefit and to maintain our national, state, and local infrastructure. As we learn about the ways agencies carry out their mandates, we will also assess whether they are meeting their responsibilities to the public.

Administrative law defines the roles of the courts, the legislature, and the chief executive vis-a-vis agencies. It deals with the legal principles common to all administrative agencies, including the procedures that agencies use to carry out their functions. It also involves the principles of judicial review of agency action. 

Administrative Law covers a vast number of public agencies on the federal, state, and local levels. Some examples of the numerous agencies and their coverage can be found through simple web searches. The following links are to lists of federal, state, and New York City administrative agencies:

Federal agencies: https://www.usa.gov/federal-agencies/a

NYS agencies: https://www.ny.gov/agencies

NYC agencies: http://www1.nyc.gov/nyc-resources/agencies.page

As you can see from a quick glance through any of these government sites, there are a multitude of administrative agencies. Administrative law as government agency law is ubiquitous.

As a broad, general matter, administrative law is about three things:

§  Power (Where do agencies get the power to do the things they do?)

§  Process (What procedures do agencies have to follow when they make decisions?)

§  Review (When can we intervene in agency decision making to demand judicial review of agencies decisions?)

We will review and delve deeper into the concepts of power, process, review when we start learning about the Administrative Procedures Act (APA)—the statute that tells agency employees what processes to use when they make decisions. The statute also tells us what our procedural rights are when we participate in agency decision making and when we ask courts to review agency decisions.

As we work through the semester, we will explore several issues including:

§  What power do agencies have, where does it come from, and how may agencies exercise their power?

§  What processes and procedures are required for the legitimate exercise of agency power and is the agency complying with those processes and procedures?

§  What kinds of review of agency action are available or required?  What are the scope and limits of that review?

§  What role did systemic racism and other forms of subordination and discrimination play in agency decisions, processes and procedures? 

Some commentators describe administrative agencies as the “fourth” Branch of Government because agencies are quasi-independent entities that tend to stand alone but that are creatures of, depend on, and are created, impacted, and controlled by the legislative, executive, and judicial branches.

What is an Agency?

The Administrative Procedure Act ("APA") defines "agency" in Title 5 of the United States Code at 5 U.S.C. § 551(1). Much of our semester will be spent looking at this statute, originally passed by Congress in 1946 to govern how federal agencies can make and enforce rules.

We are going to spend time learning about the APA, so I’ll save the exciting details about the statute until then. (Something to look forward to!!) According to the APA, 5 U.S.C. § 551(1), agencies are “authorities of the Government of the United States.” 

What a federal agency is is pretty vague, isn’t it? The next part of the definition is more specific, identifying what a federal agency isn’t: Congress, the courts of the United States, state and local governments, including the D.C. government, and certain military exercises and activities are NOT government agencies according to the APA.

While the APA doesn’t mention whether the President is an agency, the Supreme Court says that the President is not an agency under the APA. Franklin v. Massachusetts, 505 U.S. 788 (1992) (saying the President’s report to Congress about Census statistics is not an “agency action” because the President is not included in the APA’s purview). 

The President isn’t subject to the APA, but the President is the head of the executive branch of government, and the executive branch contains executive agencies. As the head of the executive branch of government, the President gets to choose who runs executive agencies. 

The Structure and Parts of our Agency System

Agencies’ relationships to one another are like branches of a tree: there are some large agencies with smaller sub-agencies:

The largest agencies are called “departments.” Think of, for example, the Department of Justice, the Department of Education, the Department of Health and Human Services, and the Department of Homeland Security. 

When Presidents gather the heads of all of the departments together, that leadership is called the President’s “Cabinet.” As more and more departments have been created, Presidents calling upon their Cabinets for advice and counsel has become less common. But, if you ever hear people talk about the “Cabinet,” they are referring to the heads of all of the departments. 

President Biden's Cabinet can be found here. 

Each department is led by a “Secretary,” except for the Department of Justice, which is led by the Attorney General. The President appoints department heads with the advice and consent of the Senate. (We will learn about the appointments process later this semester.) The department heads hold their offices at the pleasure of the President, which means the President can fire the department heads for any reason. Departments have General Counsel in charge of the department’s lawyers.

Here's a short piece on the extraordinary turnover from the Trump Cabinet, which surpassed Reagan, Obama and the two Bushes.

The University of Washington’s library has created a guide listing all of the Departments and providing information about those agencies.

A. Agency Structure - an overview 

Departments contain sub-agencies. Each sub-agency is an “executive agency” for legal purposes. For example, the Occupational Safety and Health Administration (“OSHA”) is part of the Department of Labor. Generally, the people in charge of these sub-agencies are also appointed by the President with the advice and consent of the Senate and also serve at the President’s pleasure. They may have titles like “Administrator,” “Director,” or “Chief.” Their titles are not uniform and the titles do not indicate any unique powers or limitations. These sub-agencies generally have their own general counsel’s offices staffed with lawyers. If you are considering working for the federal government, you may end up working in one of these counsel’s offices.

Some agencies are not part of a department. Most agencies that are not sub-agencies under a department are considered “independent agencies.” Agencies like the National Labor Relations Board (“NLRB”) and the Federal Trade Commission (“FTC”) are independent agencies. A few agencies are considered executive agencies even though they are not within departments. The Environmental Protection Agency (“EPA”) is one of the agencies that is an executive agency not part of a department-level agency. 

Historically, independent agencies have been considered more independent from the President’s influence and political force than agencies under executive control. Some of the attributes of independent agencies that make them independent from Presidential control include the following:

• Independent agencies are usually not headed by a single person, but by a group of people (a board or commission), and often, the statutes that create the independent agencies require that there be representatives from both political parties in the leadership group.
  
  
• Independent agency heads generally do not serve at the pleasure of the President, and they can only be removed for cause (and not just because the President wants them out). Thus, executive agency heads usually serve until they are fired (often when a new President is elected), while independent agency heads usually serve for a term of years (say, 5 years) that is staggered across Presidential administrations. However, independent agencies are not totally free from political divisions. We will explore this issue further in our "separation of powers" discussion in Part 4 of the Casebook. 
  
  

While our class will focus on federal agencies, every state government, and many local governments have their own, similar administrative systems and administrative laws. As with legislative and judicial systems, the agency systems run similarly, but parallel to, those in the federal system. State agency heads are often appointed by state governors at the pleasure of state legislative bodies.

We just learned what the structures of our federal agencies look like. (Departments are large executive agencies that contain many smaller agencies, and there are also independent agencies apart from the executive branch of government.) The next question we will answer is “where do agencies come from?”

B. Where Do Agencies Come From: 

Agencies are generally created by Congress. What agencies are tasked to do is defined by Congress through authorizing, or enabling statutes. Enabling statutes (and sometime other statues) create government agencies and define the original purpose, scope, and authority of the agency. Enabling statutes confer and specify agency powers. In sum, Congress creates the laws and delegates power to agencies to interpret, administer, and enforce the laws. The power of agencies is limited. An agency can only act within the powers it is delegated by Congress. The delegated powers are determined through the agency's enabling statute.


As you will learn this semester, agencies are generally given broad deference to carry out their mission and purpose. Yet, there is growing tide to minimize the power of the "administrative state," which is seen from presidential administration to presidential administration (Trump sought to limit the power and scope of the administraitve state while Biden utilized the power of adminstrative agencies). In a recent Supreme Court case West Virginia v. EPA, which we will read later this semester, the Court narrowly reigned in administrative power by finding that the Environmental Protection Agency did not have authority to compel power plants to act on its plan to limit carbon dioxide emissions related to climate change. 

C. What do Agencies do?

The regulations that agencies issue under Congressional authority have the force of law. The APA lays out the procedures agencies must follow when making rules. There are steps agencies have to take as they are making regulations (except under certain circumstances we will learn about later this semester). 

Here are just a few of the things agencies do:

1. Make Rules (Regulations) and Guidance to help people follow the rules and to regulate private and corporate conduct: Congress often grants rulemaking authority, the power to make binding regulations, to federal agencies to implement statutory programs. As such, agency rulemaking is quasi-legislative, a delegation of law-making authority to agencies (more to come in our discussion of separation of powers and the delegation doctrine). 

2. Regulate Private Conduct (Implement and Enforce Regulations): Agencies enforce the laws that Congress empowers them to enforce through the promulgation of regulations. For example, the EPA requires regulated entities to send regular updates about air emissions, water pollution, and other hazardous activities.  The Equal Employment Opportunity Commission (“EEOC”) enforces laws that protect equal employment opportunities. The Department of Justice enforces laws that protect people with disabilities under the Americans with Disabilities Act. The Securities and Exchange Commission regulates securities, brokers, dealers, and issuers. 
   
   
3. Hear Disputes (Adjudication) Between Individuals and the Government: Congress also grants quasi-judicial authority to agencies in some enabling acts. Agencies can establish court-like adjudicatory tribunals that are referred to as Article I courts because they are established under Article I of the Constitution instead of Article III (the Article that establishes the judicial branch of the federal government system). These tribunals are staffed with administrative law judges (“ALJ”s). Agencies’ Article I tribunals can only hear disputes within the scope of the relevant enabling statute.
   
   
   
   Article I decisions can have the force of law, as if a court made the decision, if an enabling act specifies that the decision is legally binding on the parties involved in the adjudication. The decisions are subject to judicial review to ensure they are consistent with the enabling acts and the agency has followed the required procedures. Regulate Private Conduct Through Permitting and Licensing Programs: For instance, the Fish and Wildlife Service manages fish and wildlife resources by providing limited numbers of permits for a variety of wildlife activities. The EPA works with the Army Corps of Engineers to run a permitting program that requires inspections and studies before someone dredges or fills a body of water.

4. Administer Public Services Programs: Agencies run programs like Social Security, Medicare, Medicaid, welfare, and Supplemental Nutrition Assistance Program. These programs dispense federal and state funds for specified purposes. You may see these services being called “entitlements” in other administrative law texts. Entitlements are something people have a right to under the law.

5. Investigate and Gather Factual Information: Agencies often need to get information from outside of the agency to support its rulemaking, adjudication, or enforcement actions. Unless Congress authorizes agencies to compel the production of that information, agencies have to rely on parties to voluntarily hand over the information. Congress may authorize an agency to compel the production of information through:
   
   

• Subpoena Power: Congress can authorize an agency to order the production of documentary evidence and witness testimony. The agency can use the subpoenaed information to make decisions and proceed with enforcement actions.

• Required Periodic Reports: Congress can also authorize an agency to compel regulated entities to file periodic and special reports with the agency. For example, the Securities and Exchange Act of 1934 directs the Securities and Exchange Commission (“SEC”) to require periodic reporting of information from publicly traded securities. That is why some companies have to file annual reports and other public disclosures about their business activities.

This is not an exhaustive list of everything agencies do. Many agency acitivites cannot be neatly categorized. The Department of Homland Security, for example, creates and adminsters programs related to the admission and deportaon of undocumented persons. 

Agencies also conduct studies, collect data, among other activities. The Internal Revenue Service collects taxes. The Department of Treasury clears goods imported into the United States. The Forest Service sells timber. The National Aeronautics and Space Administration (NASA) sends people to the moon. Agencies have many roles and each of those roles impacts the welfare of people and companies.

We wil engage in the following open discussion in class: 

• Slack in-class discussion #1: as indicated in the syllabus, all posts must include the assignment number (e.g. “in-class discussion #1” ) and date of submission or it will not be accepted and no credit will be given for the assignment:

1. Describe an experience that you have had with an administrative agency
2. In reflection of The Racial Roots of Administrative Law, identify how knowing the roots of administrative law can provide a deeper understanding for your learning of admin law this semester.   

"The Freedmen’s Bureau, formally known as the Bureau of Refugees, Freedmen and Abandoned Lands, was established in 1865 by Congress [as an administrative agency] to help millions of former black slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau provided food, housing and medical aid, established schools and ordered legal assistance. It also attempted to settle former slaves on land confiscated or abandoned during the war. However, the bureau was prevented from fully carrying out its programs due to a shortage of funds and personnel, along with the politics of race and Reconstruction." See Freedman's Bureau, History.com Editors. 

Examining the history of administrative law provides necessary insight to understand how structures of white supremacy continue to embed the adminstrative state, impacating some of the most intimate aspects of our lives. 

Now that we know a little bit about what agencies are and what they do, let’s think critically about how agencies relate to social justice work.  As we have discussed, agencies make decisions that profoundly impact peoples’ lives. They can determine who gets unemployment support, who has the right to parent their children, who gets disability benefits, who has to pay for environmental destruction, and who is deported in immigration proceedings. 

In thinking about the assigned readings last week, consider the following to frame our In-class discussion #3:

1. How do we feel about such personal and critical decisions happening through an administrative state  that is so mercurial in terms of political leanings, influences, and agendas, instead of in Congressional or courtroom proceedings? (Note: Agencies are sometimes characterized as a “headless Fourth Branch of government” that aren’t directly accountable to the electorate.)
   
   
   
2. Can you envision a way that the administrative state can exercise its duty to protect the public while also being purposeful in how administrative decisions and practices impact marginalized communities? 
   
   
3. Can we look to these existing legal structures in administrative law to build social justice, or is administrative law a tool of oppression? (This is a big question with many facets!)

Feel free to explore anything that you think of as you consider the role of agencies in public interest work. I want this to be a moment where we step back and consider administrative law’s role within public interest law and what we envision when we imagine a more just system of governance. [Governance means “action or manner of governing.”]

We will also have a general discussion on the regulatory changes in the Biden era. Consider the following for an open class discussion:

• • Skim through Tracking regulatory changes in the Biden era, identify a rule/regulation/executive order that overturned or replaced (or is in the process of doing so) a Trump action.
    
    
  • Who was most impact by this rule/regulation and why should we care?