The Ultimate Administrative Law Cheatsheet: A Comprehensive Guide to Agency Powers and Limitations

Introduction to Administrative Law

Administrative law governs the activities of administrative agencies of government, addressing how agencies are created, how they operate, and how they interact with the public, businesses, and other government entities. These agencies exist at the federal, state, and local levels and serve to implement and enforce legislation through rulemaking, adjudication, and enforcement actions.

Why Administrative Law Matters:

• It impacts nearly every sector of society (healthcare, environmental protection, financial markets, etc.)
• It affects individual rights and business operations daily
• It represents the primary way most citizens interact with government authority
• It balances effective governance with protection of individual rights

Core Principles and Constitutional Framework

Constitutional Foundations

The Delegation Doctrine

• Legal Basis: Congress may delegate legislative power to agencies if it provides an “intelligible principle” (J.W. Hampton v. United States, 1928)
• Nondelegation Principle: Congress cannot delegate its entire legislative power to agencies
• Modern Application: Courts generally defer to congressional delegations, rarely finding them unconstitutional
• Major Questions Doctrine: Courts may require clear congressional authorization for agency decisions of vast economic or political significance

Administrative Agencies: Types and Powers

Types of Agencies

Agency Powers

1. Rulemaking: Creating regulations with force of law

   • Legislative rules: Legally binding rules implementing statutes
   • Interpretive rules: Agency’s interpretation of statutes or regulations
   • Policy statements: Agency positions without binding legal effect

2. Adjudication: Resolving disputes through agency proceedings

   • Formal adjudication: Trial-like proceedings with ALJ
   • Informal adjudication: Less structured decision-making

3. Enforcement: Ensuring compliance with laws and regulations

   • Investigations
   • Administrative sanctions
   • Civil penalties
   • Referrals for criminal prosecution

4. Licensing: Granting permissions to engage in regulated activities

The Administrative Procedure Act (APA) – The “Constitution” of Administrative Law

Key Provisions of the APA (5 U.S.C. §§ 551-559, 701-706)

• §553: Rulemaking procedures
• §554: Adjudication procedures
• §556-557: Formal hearing requirements
• §701-706: Judicial review standards and procedures

Rulemaking Procedures

Exceptions to Notice-and-Comment Requirements

• Good cause exception (emergency situations)
• Interpretive rules
• General statements of policy
• Procedural rules
• Military and foreign affairs functions
• Agency management and personnel matters

Adjudication Procedures

Formal Adjudication (when statute requires “on the record” hearing):

1. Notice of hearing
2. Presided over by Administrative Law Judge (ALJ)
3. Parties have right to:
   • Present evidence
   • Cross-examine witnesses
   • Make arguments
4. Decision based on hearing record
5. Written decision with findings and conclusions

Informal Adjudication:

• Minimal statutory requirements
• Due process requirements may apply
• Agency-specific procedures often established

Judicial Review of Agency Actions

Threshold Requirements for Judicial Review

1. Reviewability

   • Final agency action (Bennett v. Spear test):
     • Marks consummation of agency decision-making process
     • Determines rights/obligations or legal consequences follow
   • No statutory preclusion of review
   • Not committed to agency discretion by law

2. Standing (Lujan v. Defenders of Wildlife test)

   • Injury in fact (concrete, particularized, actual/imminent)
   • Causation (injury fairly traceable to challenged action)
   • Redressability (likely to be redressed by favorable decision)
   • Zone of interests test

3. Ripeness: Issues ready for judicial decision

   • Fitness for judicial decision
   • Hardship to parties from withholding review

4. Exhaustion: Administrative remedies must be exhausted before seeking judicial review

Standards of Review (APA §706)

Major Deference Doctrines

Due Process in Administrative Law

When Due Process Applies

Two-part inquiry:

1. Is there a protected interest? (life, liberty, or property)
2. Has the government deprived the person of that interest?

Common protected interests:

• Government benefits (welfare, disability)
• Government employment
• Professional licenses
• Reputation (when coupled with other tangible interest)

Due Process Requirements (Mathews v. Eldridge balancing test)

Courts balance three factors:

1. Private interest affected
2. Risk of erroneous deprivation and value of additional procedures
3. Government’s interest, including administrative burden

Typical Procedural Protections

Common Agency Actions and Procedures

Rulemaking Process – Practical Steps

1. Pre-NPRM Activities

   • Identify need for regulation
   • Conduct research and gather information
   • Prepare regulatory impact analysis
   • Draft proposed rule
   • Internal and OMB review (federal)

2. Notice and Comment

   • Publish NPRM in Federal Register
   • Public comment period (typically 30-90 days)
   • Public hearings (optional)

3. Final Rule Development

   • Review and analyze comments
   • Revise rule as appropriate
   • Prepare response to significant comments
   • Final internal and OMB review

4. Publication and Implementation

   • Publish final rule with effective date
   • Implementation planning
   • Guidance documents and training

Investigation and Enforcement Procedures

1. Investigations

   • Information requests
   • Subpoenas for documents or testimony
   • Inspections and site visits
   • Mandatory reporting requirements

2. Enforcement Tools

   • Warning letters
   • Administrative orders
     • Cease and desist
     • Corrective action
   • Civil penalties
   • License suspension/revocation
   • Consent decrees
   • Referral for criminal prosecution

Licensing and Permits

1. Application Process

   • Submission of application with required information
   • Agency review for completeness
   • Technical review and evaluation
   • Public notice and comment (for major licenses)
   • Decision with conditions

2. Renewal and Modification

   • Periodic renewal requirements
   • Substantial modification may require new application
   • Minor modifications typically streamlined

Common Challenges in Administrative Law

Best Practices for Navigating Administrative Law

For Regulated Entities

1. Participation in Rulemaking

   • Monitor proposed rules affecting your interests
   • Submit substantive, data-driven comments
   • Participate in public hearings
   • Consider judicial challenge if final rule is problematic

2. Compliance Strategies

   • Develop comprehensive compliance programs
   • Maintain open communication with regulators
   • Self-audit and voluntarily disclose violations
   • Request advisory opinions when regulations are unclear

3. Challenging Agency Actions

   • Identify proper venue and timing
   • Focus on strongest procedural and substantive arguments
   • Consider both litigation and administrative/political solutions
   • Preserve issues for judicial review

For Agency Officials

1. Defensible Decision-Making

   • Build thorough administrative record
   • Respond to significant comments
   • Explain rationale for decisions
   • Consider alternatives and document why rejected

2. Effective Public Engagement

   • Use plain language in communications
   • Provide meaningful opportunities for stakeholder input
   • Make relevant information accessible
   • Consider negotiated rulemaking for contentious issues

3. Managing Discretion

   • Develop clear internal guidelines
   • Ensure consistency in application
   • Document reasons for exceptions
   • Balance flexibility with predictability

State Administrative Law Variations

• State APAs often modeled on federal APA but with significant variations
• More centralized review through state offices of administrative hearings
• Additional procedural requirements in some states
• State-specific judicial review standards
• Different approaches to legislative oversight

Current Trends and Developments

• Increased Scrutiny of Chevron Deference

  • Supreme Court reconsideration of deference doctrines
  • Greater emphasis on major questions doctrine

• Expanding Use of Guidance Documents

  • Increased reliance on non-binding guidance
  • Debates over “regulatory dark matter”

• E-Rulemaking and Technology

  • Online comment systems
  • AI and machine learning in regulatory analysis
  • Big data for regulatory monitoring

• Regulatory Reform Initiatives

  • Regulatory budgeting
  • One-in, two-out requirements
  • Retrospective review requirements

• Cooperative Federalism

  • Federal-state partnerships in regulation
  • State implementation of federal standards

Resources for Further Learning

Primary Sources

• Administrative Procedure Act (5 U.S.C. §§ 551-559, 701-706)
• Agency-specific enabling statutes
• Code of Federal Regulations (CFR)
• Federal Register

Secondary Sources

• Administrative Law Treatises:
  • Pierce, “Administrative Law Treatise”
  • Hickman & Pierce, “Federal Administrative Law”
  • Asimow & Levin, “State and Federal Administrative Law”
• American Bar Association Administrative Law Section publications
• Administrative Conference of the United States recommendations

Online Resources

• Office of the Federal Register
• Regulations.gov
• Administrative Conference of the United States
• Agency websites for specific regulatory domains

This cheatsheet provides a comprehensive overview of administrative law principles, procedures, and practical considerations. For specific issues, always consult the relevant statutes, regulations, and case law applicable to your jurisdiction and the particular agency involved.