Structure of administrative law

Structure of administrative law

Administrative law is the regulatory law of public administration. It is a major means of checking the exercise of administrative discretion to ensure that its use is rational and fair.

Legislatures delegate legislative authority to administrative agencies for the reasons: 1) as the scope and complexity of public policy increase, legislatures have difficulty keeping abreast of the need to adopt and amend legislation; 2) legislatures cannot be expected to have the level of detailed technical expertise often required in contemporary public policymaking; and 3) it avoids taking firm stands on controversial issues.

Administrative law structures administrative decisionmaking processes and provides for procedural and substantive review of administrators’ decisions.

The constitutional context of US public administration

Congress (legislative)

The Constitution makes Congress the source or author of federal administration. Legislation is required to establish, empower, structure, staff, and fund federal agencies. Congress oversees executive agencies. Congress investigates and evaluates federal administrative operations. Agencies are required to consult with Congress when formulating strategic plans and to issue performance reports.

The president (executive)

The executive branch does not belong to the president but rather is subordinate to Congress and the federal courts as well. Executive implementation cannot contravene the Constitution or statutory law.

The Judiciary (judicial)

It declared a vast array of new constitutional rights for individuals in their encounters with public administrators. The courts made it easier for individuals to gain standing to sue administrators for violations of their newfound rights. The federal judiciary developed a new type of lawsuit (remedial lawsuits) that facilitates its direct intervention in PA as a means of protecting the constitutional rights of discrete categories of people. The federal courts greatly increased the personal liability for monetary compensation and punitive or exemplary damages that most public administrators face for violating individuals’ constitutional rights.


Federalism declares the division of power and sovereignty between the federal government and the states. The federal government is one of limited, enumerated powers, whereas the states have open-ended residuary sovereignty over a very broad range of policy areas. The powers are reserved to the States respectively, or to the people.

The Commerce Clause

The Commerce Clause has been central to defining the scope of federal and state powers. It authorizes Congress to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. It held that Congress lacks the power to compel individuals to engage in commerce. State are preempted by federal legislation when 1) the policy area requires uniform national regulation, 2) the policy area has not historically been dominated by the states, 3) dual regulation will promote conflict, and 4) a federal agency has been created to regulate the policy area.

The Tenth Amendment

It ratifies the concept of dual sovereignty, whereby the federal government is sovereign in some areas and the states in others. The main ramification is to prohibit the federal government from compelling the states to enact or administer a federal regulatory program.

The Spending Clause

It authorizes Congress to lay and collect taxes, duties, imposts and excises, to pay the Debts and provide for the common Defense and general Welfare of the United States. Congress has very broad power to influence state policy and administrative operations through conditional grants.

The Eleventh Amendment

It protects the states’ sovereign immunity by preventing suits against them in federal court. It provides that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Subjects of any Foreign State.

Individuals’ constitutional rights in administrative encounters

Narrow tailoring: requires the use of a classification 1) be efficacious relative to other policy approaches that a governmental entity can reasonably be expected to consider; 2) have a fixed stopping point, 3) be sufficiently flexible so that irrational outcomes can be avoided; 4) provide individualized consideration of all applicants.

New property and procedural due process

Requires a balancing of three factors: 1) the individual’s interest in the benefit and/or severity of the deprivation at issue; 2) the procedure in place will result in erroneous decisions, as well as the probable value of additional procedures in reducing errors; 3) the government’s administrative and financial interests in avoiding additional or alternative procedures

Unconstitutional conditions

The unconstitutional conditions doctrine seeks to limit a government’s ability to use client and customer relationships as leverage for regulating behavior that it could not reach directly without violating individuals’ constitutional rights.

Constitutional law is dynamic rather than static. Contemporary public administration is informed by and infused with constitutional concerns.


Federal administrative procedure act (APA) defines administrative rules: the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.

The major concerns of the rulemaking include flexibility, policy criteria, faithfulness, rationality, participation, efficiency, enforceability and the ability to conform.

Federal agencies’ regulatory action should be guided by twelve principles: 1) identify the problems addressed; 2) assess the contributions of existing regulations to those problems; 3)identify alternatives to regulations; 4) consider risks; 5) assess cost-effectiveness; 6) weigh costs and benefits; 7) base decisions on the best obtainable information; 8) assess alternatives among regulatory possibilities; 9) seek the views of state, local, and tribal governments; 10) avoid inconsistency; 11) impose the least burden on society; and 12) write regulations in simple, understandable language.

Evidentiary adjudication is a proceeding—hearing—in which evidence is adduced and law applied in determining the rights and obligations of individuals, corporations, and other entities. The product of evidentiary adjudication is order. The objectives are to achieve fundamental fairness, to adjudicate cases competently, to resolve conflicts and cases efficiently, and to accomplish all of the foregoing while enhancing, or at least not impeding, organizational performance.

Distinctions between evidentiary adjudication and formal rulemaking:

  1. Formal rulemaking focuses on legislative facts or general policy concerns (necessity, cost-benefit)

Evidentiary adjudication focuses on adjudicative facts (individual motive, intent, and behavior)

  1. Evidentiary adjudication is retrospective

Rulemaking addresses matters in the future

  1. Evidentiary adjudication deals with specific parties

Rulemaking applies broadly throughout the economy.

Criticisms of adjudication

Legal perspectives: firstly, parties to an adjudication find out after the fact that they have done something wrong; secondly, regulations and legal principles established through adjudication may be buried in hundreds or thousands of adjudicatory decisions; thirdly, evidentiary adjudication is not a participatory problem-solving exercise; fourthly, agency adjudicatory decisions may be inconsistent with one another because different hearing examiners, administrative law judges, and other decisionmakers come to disparate conclusions in similar cases; finally, oversight of agency adjudication is difficult, compared to rulemaking.

Adjudication provides agency convenience, advantages presented by incrementalism, suitability for resolving conduct and application cases, equity and compassion, and satisfaction of constitutional procedural due process. Improving federal agencies’ evidentiary adjudication was one of the APA’s core objectives. Federal evidentiary adjudication has advanced vastly in terms of fairness through APA.


Firstly, there is an issue of executive inefficiency. The basic principle of the U.S. constitutional context of administrative law—the separation of powers, succeeds in balancing the powers and guiding and regulating the process of providing public services; whereas, it causes the problems of inefficiency and dereliction of duty. Firstly, the separation of powers makes executive make better, reasonable and legal decisions in implementing polices and providing public services, while causes a long-time and complex process and inefficient and indirect solutions to solve problems. Secondly, exposing in public scrutiny and judicial adjudication, “do not do anything” becomes administrators’ self-evident management philosophy. In terms of the branch of executive, following the prescribed order is better than working creatively and efficiently; doing nothing is better than doing something wrong. Dereliction of duty, in some sense, becomes a rule of survival in public administration. Secondly, there is an issue of risk of deprivation of the rights and liberties guaranteed by the Constitution. Finally, there is an intergovernmental issue, which causes overlapped authorities.

Administrators helped to maintain and consolidate the presence of separation of powers in the way of delegating legislative and judicial duties and getting involved in legislative and judicial powers’ authorities. For instance, the president takes part in the legislative function by proposing laws and by having a veto power over laws enacted by Congress. In this sense, the branch of legislature is not dominant. Administrators in executive level takes part in the process of enacting laws, helping legislature to make better decisions and avoiding imbalance of power. Furthermore, in terms of administrative law, administrators help legislature, through delegation, to make more effective, professional and targeted regulations and statutes for different agencies referring to a broad public fields.

Federalism distinguished states’ powers from federal powers. The tenth amendment ratifies dual sovereignty, whereby vests federal authority in some areas and state authority in others. The doctrine of federalism makes administrative law flexible in dealing with public issues in state level under the supervising of federal government. Federalism plays a significant and positive role in administrative law making process. Federalism prohibits federal government from compelling state government enact laws which are pursued by federal government; meanwhile, vests state government authority to act efficiently.

Rosenbloom emphasized constitutional competence in PA. However, in my opinion, a large administrative state, or, in other words, an expending administrative state is definitely a danger to the constitutional system. As the society develops, the scope of PA is growing. PA is involving greater and broader public affairs. For the pursuit of efficiency and professional respond, a large bureaucracy exercises more and more legislative and judicial powers in executing policies. A large bureaucracy is breaking the balance of separation of powers, bringing social issues of inequality. The administrative state is the product of a massive expansion of the national government’s power.

An administrative state could be useful in enforcing constitutional rights only if all administrators practice constitutional competence. The central concepts of the U.S. Constitution include the rule of law, representation and separation of powers. Administrative state has to practice “no exemptions” in executing policies and avoid encroaching other powers.

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