The Power Of Administrative Agencies: Lawmaking Explored

Administrative law is a branch of law that governs the creation and operation of administrative agencies. Agencies are delegated power by Congress to enforce and regulate federal laws. They are created through their own organic statutes, which establish new laws, and in doing so, create the respective agencies to interpret, administer, and enforce those laws. Agencies are given the authority to create administrative law through laws enacted by Congress, and these laws come in the form of rules, regulations, procedures, orders, and decisions. The process of rulemaking is governed by the Administrative Procedure Act, which requires a process that includes publication of the proposed rules, a period for comments and participation in the decision-making, and adoption and publication of the final rule. Administrative agencies act in a legislative-like capacity when promulgating rules and regulations, and in a judicial-like capacity when conducting hearings and issuing rulings and decisions on particular matters.

Administrative agencies are created by Congress to enforce laws

Congress cannot enforce and administer every law it enacts, so it relies on agencies to administer, enforce, and regulate various federal laws. These agencies have enormous power to enact rules, interpret relevant statutes, enforce those rules, and adjudicate matters according to those regulations. The agencies often have their own judicial bodies, known as Administrative Law Judges, who are part of their respective agencies but must remain independent from agency officials. These judges adjudicate claims or disputes involving the agency as an impartial trier of fact and law.

The Administrative Procedure Act of 1946 ensures public participation in the rule-making process and ensures agencies follow a consistent set of procedures for issuing rules. The Federal Register is the official daily publication for rules, proposed rules, and notices of federal agencies and organizations, as well as executive orders and other presidential documents. The Code of Federal Regulations is the codification of the general and permanent rules published in the Federal Register by federal departments and agencies.

At the state level, legislative agencies are created by similar means, with a state legislature enacting a statute that provides for the establishment of a particular agency. State agencies are subject to legislative oversight and must continually provide reports and updates on their progress.

Agencies are given the authority to create laws by Congress

The Administrative Procedure Act of 1946 outlines the steps that federal agencies must follow when issuing rules. The Act was passed to ensure public participation in the rule-making process and to ensure consistency in the procedures for issuing rules. The Administrative Procedure Act is a comprehensive regulatory scheme that governs regulations, adjudications, and rule-making in general terms. It is the major source of federal administrative agency law.

Agencies are created through their own organic statutes, which establish new laws and create the respective agencies to interpret, administer, and enforce those laws. Generally, administrative agencies are created to protect the public interest rather than to vindicate private rights. They are delegated power by Congress to carry out certain prerogatives. Some notable agencies include the Department of Justice, the Department of Defense, the Federal Trade Commission, the Securities and Exchange Commission, and the Environmental Protection Agency. These agencies have the power to enact rules, interpret relevant statutes, enforce those rules, and adjudicate matters according to those regulations.

The level of deference afforded to administrative agencies by the courts has varied over time. The Chevron deference, for example, allowed courts to apply an extremely deferential standard of review, where they deferred to agency interpretations of statutes unless they were deemed unreasonable. However, in Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned Chevron deference, stating that courts should not blindly defer to statutory interpretations of administrative agencies. Instead, courts must independently interpret statutes and effectuate the will of Congress, subject to constitutional limits.

Agencies act in a quasi-judicial and quasi-legislative capacity

Administrative agencies have executive, quasi-legislative, and quasi-judicial functions. The executive function involves enforcing laws created by the legislature and regulations created by the agency. The quasi-legislative function involves creating regulations through the agency rule-making process. The rule-making authority of administrative agencies is an exception to the general principle that laws affecting rights should be passed only by elected lawmakers. This authority is delegated to agencies by Congress or, in the case of a state agency, the state legislature. Agencies can create and enforce many legal rules on their own, without the advice of lawmakers, and these rules have the force of law. The quasi-judicial function involves adjudicatory proceedings that address violations of laws or regulations in the area overseen by the agency. Agencies often have their own judicial body, known as the Administrative Law Judge (ALJ), who is part of their respective agency but must be independent from the agency officials involved in certain actions. The ALJ issues legally binding decisions based on their review of testimony and documentary evidence. In judicial proceedings, each party presents evidence and arguments, and the ALJ provides a proposed decision to which the parties can object. Decisions can be appealed and may ultimately be reviewed by a state or federal court.

Agencies must follow the Administrative Procedure Act when issuing rules

Administrative agencies are created through their own organic statutes, which establish new laws, and in doing so, create the respective agencies to interpret, administer, and enforce those laws. The powers granted to administrative agencies are particularly important, along with the substantive rules that such agencies make, and the legal relationships between agencies, other government bodies, and the public. Agencies are delegated power by Congress to take on the responsibility for carrying out certain prerogatives from Congress.

Federal agencies, when issuing rules, have to follow the steps outlined in the Administrative Procedure Act of 1946. The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rule-making in the Federal Register, which is the official daily publication for rules, proposed rules, and notices of federal agencies and organizations. The FR is updated daily and is published Monday through Friday, except on federal holidays. The APA also provides opportunities for the public to comment on notices of proposed rule-making, as it was passed to ensure public participation in the rule-making process. The APA requires most rules to have a 30-day delayed effective date.

In addition to setting forth rule-making procedures, the APA addresses other agency actions such as the issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action. The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by federal departments and agencies. Each title is divided into chapters, which usually bear the name of the issuing agency. Each chapter is further subdivided into parts that cover specific regulatory areas. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis.

It is important to note that some textualist scholars argue that administrative agencies are unconstitutional, particularly because of the arguably unconstitutional delegation of law-making power. However, the current jurisprudence in administrative law deems agencies constitutional and necessary in a functional and pragmatic sense. Indeed, because Congress cannot enforce and administer every law it enacts, it relies on agencies to administer, enforce, and otherwise regulate various federal laws.

Agencies have their own judicial body, known as the Administrative Law Judge

Administrative agencies are created through their own organic statutes, which establish new laws, and in doing so, create the respective agencies to interpret, administer, and enforce those laws. Agencies are given the authority to create administrative law through laws enacted by Congress. The law comes in the form of rules, regulations, procedures, orders, and decisions. In creating these "laws," the agency acts as a quasi-judicial, quasi-legislative entity. The agencies act in a legislative-like capacity when promulgating rules and regulations, and in a judicial-like capacity when conducting hearings and issuing rulings and decisions on particular matters.

Agencies often have their own judicial body, known as the Administrative Law Judge (ALJ). ALJs are Article I judges under the U.S. Constitution and are part of their respective agencies, but they must remain independent from the agency officials involved in certain actions. They are prohibited from engaging in any ex parte contact with the agency, unless upon notice and opportunities to all parties involved in the proceeding. ALJs are not policy or rule-makers and do not have the power to offer advisory opinions. Instead, they are responsible for adjudicating claims or disputes involving the agency as an impartial trier of fact and law. They can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations. ALJs are also empowered to issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions.

The United States Supreme Court has recognized that the role of a federal ALJ is "functionally comparable" to that of an Article III judge. However, ALJs are not equivalent to administrative judges, who can only participate in unofficial disputes of executive agencies. Only ALJs can hear official disputes involving the agencies. ALJs are subject to a high standard of conduct to maintain the integrity and independence of the administrative judiciary. They have absolute immunity from liability for their judicial acts and are "insulated from political influence". ALJs are exempt from performance ratings, evaluation, and bonuses, and agency officials may not interfere with their decision-making.

The procedure for reviewing an ALJ's decision varies depending on the agency. Agencies generally have an internal appellate body, and parties may have to go through the agency's internal review process before they can access the federal courts.

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