The White House Cannot Create Administrative Law

Administrative law is a branch of law that governs the creation and operation of administrative agencies. These agencies are granted power by Congress to act as enforcers of certain prerogatives from Congress. 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. Federal agencies, when granted the power to do so in a statutory grant of authority from Congress, may promulgate rules that have the force of law. Agencies legislate through rulemaking—the power to promulgate (or issue) regulations. However, despite their enormous powers, governmental agencies must still act within Constitutional and statutory parameters. These and other limits have been codified, for the most part, into a statute known as the Administrative Procedure Act (APA). The APA is a remedial statute designed to ensure uniformity and openness in the procedures used by federal agencies. It is the major source for federal administrative agency law.

Agencies cannot act without authority delegated by Congress.

The authority of federal administrative agencies stems from their organic statutes and must be consistent with constitutional constraints and the scope of authority granted by statute. 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 new laws. Generally, administrative agencies are created to protect a public interest rather than to vindicate private rights.

The Supreme Court has held that, in some situations, the legislative branch can grant some of its power to administrative agencies. However, the Court has also sometimes declared categorically that "the legislative power of Congress cannot be delegated". The real issue is where to draw the line, and Chief Justice Marshall recognised that there is some difficulty in discerning the exact limits. Accordingly, the Court's solution has been to reject delegation challenges in all but the most extreme cases and to accept delegations of vast powers to administrative agencies.

The modern doctrine of delegation may be traced to the 1928 case, J.W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress's delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. Although formally invoking the contingency theory, the Court's opinion also emphasised that in seeking the cooperation of another branch, Congress was restrained only according to "common sense and the inherent necessities" of the situation.

Agencies must act within Constitutional and statutory parameters

The authority of federal agencies is derived from their organic statutes and must be consistent with constitutional constraints and the scope of authority granted by statute. Agencies are granted power by Congress to act as agencies responsible for carrying out certain prerogatives from Congress. This delegation of power is necessary as Congress cannot enforce and administer every law it enacts.

The powers granted to administrative agencies are significant, and they have the ability to enact rules that define and interpret relevant statutes, enforce those rules, and adjudicate matters according to those regulations. However, despite their extensive powers, agencies must act within the boundaries set by the Constitution and statutes.

The Administrative Procedure Act (APA) is a statute that codifies the limits on agency powers and provides for the roles, powers, and procedures that agencies must follow. The APA categorizes administrative functions into formal and informal rulemaking and adjudication, which have binding effects, as well as guidance, which does not. The APA ensures uniformity and openness in the procedures used by federal agencies.

Agencies must also abide by their own rules and regulations, as established in Accardi v. Shaughnessy (1954). Furthermore, courts must defer to administrative agency interpretations of the authority granted to them by Congress when the intent of Congress is ambiguous and the interpretation is reasonable, as seen in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984).

In summary, agencies must operate within the framework of the Constitution and the laws enacted by Congress. They are created by Congress to carry out specific tasks and are granted the authority to enact rules and make decisions within their designated scope. The APA and judicial interpretations provide guidelines and limits on agency powers, ensuring that agencies act within the boundaries of their delegated authority.

The Administrative Procedure Act (APA) provides for the roles and powers of agencies

The Administrative Procedure Act (APA) is a federal statute that outlines the processes by which federal agencies can develop and issue regulations. It standardises the procedures for agencies to propose and establish rules and regulations, and it grants federal courts oversight over all agency actions. The APA applies to both federal executive departments and independent agencies.

The APA was enacted in 1946 to regulate, standardise, and oversee the growing number of federal agencies and their powers. It was a response to concerns about the expanding powers of autonomous federal agencies created under President Franklin D. Roosevelt's New Deal legislative plan. The APA aimed to address potential violations of the separation of powers by agencies, as they are unelected bodies that combine executive, legislative, and judicial functions.

The APA sets out the roles and powers of agencies, providing a framework to regulate agencies and their functions. It requires agencies to keep the public informed about their organisation, procedures, and rules. This includes publishing notices of proposed and final rulemaking in the Federal Register and providing opportunities for the public to comment on these notices. The APA also establishes uniform standards for the conduct of formal rulemaking and adjudication, including the requirement for most rules to have a 30-day delayed effective date.

Additionally, the APA defines an "agency" as any authority of the United States government, excluding Congress, the courts, and the governments of territories, possessions, or the District of Columbia. It ensures public participation in the rulemaking process and defines the scope of judicial review, allowing for oversight and accountability of agency actions.

Agencies must give notice of proposed rulemaking before adopting a final rule

Agencies must give notice of any proposed rulemaking before adopting a final rule. This is a key part of the rulemaking process, which is largely governed by standards set out in the Administrative Procedure Act (APA). The APA is a remedial statute that ensures uniformity and openness in the procedures used by federal agencies. It is the major source for federal administrative agency law.

The APA outlines two types of rulemaking: formal and informal. Formal rulemaking occurs when rules are required by statute to be made on the record after an opportunity for an agency hearing. Informal rulemaking, also known as "notice-and-comment rulemaking", is when no procedural requirements are prescribed in the organic statute, and the APA requires only notice and comment.

In the case of informal rulemaking, agencies must give notice of a proposed rule before it goes into effect. This is done by publishing the proposed rule in the Federal Register. After the proposed rule is published, the public is given an opportunity to submit comments. The agency may then take these comments into consideration before the final rule is published and takes effect. This entire process is frequently referred to as notice and comment rulemaking or informal rulemaking.

The final rule must be a logical outgrowth of the proposed rule and must display the agency's consideration of all comments received and reviewed. This process is important to ensure that agencies act within their delegated authority and that their rules have a rational basis.

In addition to the APA, there are other laws and regulations that govern the rulemaking process. For example, the Regulatory Flexibility Act requires agencies to consider the needs of small entities in rulemaking, and the Paperwork Reduction Act limits the power of an agency to collect information from the public. These laws help ensure that agencies follow a thoughtful and transparent process when creating, amending, or repealing rules.

Agencies must publish rules in the Federal Register and Code of Federal Regulations

Agencies are required to publish their rules in the Federal Register and the Code of Federal Regulations (CFR). 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. It is updated daily and published from Monday to Friday, except on federal holidays. The Federal Register is published by the Office of the Federal Register, National Archives and Records Administration (NARA).

The CFR is a codification of the general and permanent rules published in the Federal Register. It is divided into 50 titles that represent broad areas subject to federal regulation. The CFR is updated annually and is available online and in print.

The rulemaking process involves several steps. First, the agency must give public notice of a proposed rule before it goes into effect. This is done by publishing the proposed rule in the Federal Register. After the proposed rule is published, the public is given an opportunity to submit comments, which the agency may consider before publishing the final rule. This process is known as notice-and-comment rulemaking or informal rulemaking. Formal rulemaking, which occurs less frequently, requires that rules be made on the record after an opportunity for an agency hearing.

The Administrative Procedure Act (APA) governs the rulemaking process and sets forth standards that agencies must follow. The APA also provides for judicial review of agency actions, including rulemaking and adjudication.

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