What Is Administrative Law?

So you decided to take Administrative Law...

Good choice! One thing I often hear from attorneys is that Administrative Law is the single most relevant doctrinal class they took in law school. Likewise, my colleagues on the faculty often lament that students take their substantive classes (e.g., tax law, immigration law, securities law, environmental law, etc.) without having a firm grounding in background principles of administrative law. Both of these sentiments reflect the fact that administrative law is everywhere.

Why is it everywhere? Well, because, at root, administrative law is the body of law that structures, constrains, and enables the exercise of governmental power. Insofar as the government is interested in regulating things like environmental harms or consumer welfare, or in providing benefits like Social Security disability insurance, administrative law is always in the background, determining the ways that the government, usually acting through instrumentalities called administrative agencies, accomplishes those ends. Think of administrative law as a kind of extension of the Constitution: it fills in the institutional, procedural, and structural gaps that have been revealed in "constitutional law proper" over time as our society and the economy have modernized and the need for government regulation has grown.

This is all rather abstract, but don't worry too much--we'll soon get down to the dirty details. Administrative law is fun to learn and practice in part because it implicates high-minded concerns about things like democracy, rights, efficiency, and justice, but at the same time it forces administrative lawyers into a thicket of procedural rules and into the weeds of science and policy. Whether you've come to this class because you like the high-minded political theory of constitutional law, because you like the minutiae of procedural "how-to" classes like civil procedure, or because you simply like learning about high-stakes, real-world law (a sizeable proportion of the U.S. Supreme Court's docket involves administrative law), there's something for you in administrative law. (If you happen to like all of these things, you'll LOVE administrative law.)

Administrative law comes from many sources. At the highest level of generality, the U.S. Constitution provides important ground rules for the administrative state. Everything that the government does via the administrative state (the somewhat imperfect term we'll use to describe the collection of administrative agencies that comprise the government outside the three main branches of government you'll remember from "Schoolhouse Rock!") has to fit within the powers and rules delineated by the Constitution. Sometimes the Constitution is rather specific about what agencies can do or what they can look like. For instance, the Appointments Clause of Article II of the Constitution, which we will unpack later in the course, is specific: it requires that all Officers of the United States be appointed in very particular ways. Other times, the Constitution is not so specific, and it might even be downright silent on important questions. For instance, scholars and judges today are debating whether the Vesting Clause of Article I of the Constitution restricts Congress's ability to delegate certain of its powers to administrative agencies. Some say yes, but others say no. We will discuss this debate later in the class, but suffice it to say that while the Constitution spells out many important principles of administrative law, it runs out far before definitively answering many of the questions that this class will raise.

Enter the most important law you've probably never heard of: the Administrative Procedure Act of 1946 (APA for short). As many have noted, the APA is a kind of "quasi-Constitution" for the administrative state. See Christopher J. Walker & Scott MacGuidwin, Interpreting the Administrative Procedure Act: A Literature Review, 98 Notre Dame L. Rev. (forthcoming 2023). Some commentators even designate it as a "superstatute" alongside other framework statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. See William N. Eskridge & John Ferejohn, A Republic of Statutes: The New American Constitution (2013). So what, then, does it entail?

The APA sets out a basic set of rules governing 1) how, when, and to what effect agencies may do things with the power delegated to them by Congress and the President, and 2) how courts can be called upon to hold agencies to these rules. These two basic functions of the APA are the basis for two of the major units of this course--one on what agencies are, what they do, and how they do it, and the other on judicial review principles for when agency action (or inaction) is challenged.

So far in our survey of sources of administrative law we have focused on the Constitution and the APA. Notice what both of these sources have in common: they provide trans-substantive rules (i.e., they do not draw any real distinctions between different substantive subject matter areas in which the government might be acting). As far as these sources of law go, an agency action is an agency action is an agency action. Taken as a whole, administrative law is strongly committed to trans-substantivity and the idea that the rules should be the same whether we're talking about developing and enforcing immigration regulations or air pollution controls. But this is not the whole story.

It is extremely important that you keep in mind that sometimes agencies are subject to subject-matter-specific administrative law statutes. In effect, these laws displace the APA when the two conflict, so that the agency subject to such a statute may operate under very different rules than the trans-substantive ones that serve as a default. There's even a section of the APA that makes this explicit. See 5 U.S.C. § 559. In this course, we will often focus more on trans-substantive doctrine (in part because it is more the norm), but sometimes we will venture into areas where a subject-matter-specific administrative law statute governs. Keeping an eye on the source of the administrative law that governs in a particular case, and being analytically precise about what generally applies and what applies only if a certain statute requires it, is a very good practice.

Finally, it is sometimes easy to overlook what some scholars have called "internal administrative law." See Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239 (2017). So far, all of the sources of administrative law that we have discussed have been imposed on administrative agencies by other actors, such as Congress, the President, and the courts. Sometimes, however, agencies develop administrative law voluntarily. They might do this rather explicitly, as in codified regulations that spell out procedural rules that the agency commits to follow, or more organically, as in norms or practices that have the effect of eliding some of the discretion that agencies might have. In many cases, these forms of internal administrative law are agency-specific, although in some instances practices are widely shared. While we will not look too closely at many examples of internal administrative law in this course, it is helpful to consider that the administrative law rules that are imposed on agencies do not capture the full extent to which agencies are limited by administrative law.

In sum, administrative law is about what government can and cannot do. By studying administrative law, you will put yourself in a position to be an effective advocate whenever your client is affected by agency actions. Or, if you work for the government, it will give you a roadmap for how you accomplish things without running into legal troubles that can wreck your plans. No wonder, then, that it is so relevant. Once you start to look for administrative law, you begin to see it everywhere the law tries to solve social, economic, or political problems.

Before we move on, a word on this "book." One obvious reason for the book is to save students money. Many administrative law casebooks cost over $250, and that means that in a class of 50 students you will have spent about $12,500 on materials that are largely in the public domain. By putting together this book and offering it for free, I hope to contribute to a fairer and more accessible educational environment.

But I also have my own selfish reasons for putting this book together. Administrative law is a massive subject with endless nooks and crannies, complicated by the fact that it is a politically contested area of the law that is therefore constantly changing. I have been studying administrative law closely now for almost 20 years and I am still discovering new elements, and like everyone, I am on a treadmill, trying to keep up with the many changes to the field that are currently occurring. Many administrative law casebooks try to say a little bit about everything. As new cases come along and displace old ones, many casebooks just add them to an ever-growing list.

This book has a slightly different approach: we will cover many (but not all) of the highlights, and we'll go deeper on a select number of materials rather than trying to exhaustively cover everything. The basic theory is that you will benefit more from learning how to think through a select number of administrative law issues or problems than from developing an encyclopedic knowledge of everything that has ever been said or decided in administrative law. Practically speaking, this means that this casebook contains fewer cases than many administrative law casebooks, which should allow us throughout the semester to spend more time dissecting these materials. The casebook also avoids lengthy post-case notes. Instead, the extra context that you might need will generally be provided in lectures. The downside to these choices is that there is much that we will not cover that is still very much worth knowing about administrative law should you choose to pursue a practice area that involves a heavy dose of the subject. Consider this course to be just a first step towards mastery of the subject, but hopefully one that whets your appetite for more and that gives you the foundations you need to branch out beyond the topics and materials we'll cover here.