A Very Brief History of Federal Administrative Law
By Jeannie Ricketts
According to Yale law professor Peter H. Schuck, “[a]dministrative law refers to the legal doctrines – a complex mixture of constitutional, statutory, regulatory, and ‘common law’ principles – that govern the structure, decision processes, and behavior of administrative agencies.”1 Administrative agencies are created by statutes, executive orders authorized by statutes and by state constitutional provisions.2 Administrative agencies are also referred to as commissions, boards, authorities, bureaus, offices, departments or divisions.3 Administrative agencies produce substantive law within their jurisdiction, such as insurance law, tax law and labor law.4
The three main functions of federal administrative agencies are: 1) investigating; 2) rulemaking; and 3) adjudicating.5 Federal administrative agencies are authorized to investigate matters within their jurisdiction.6 Federal administrative agencies write rules to implement policies and procedures applicable to the individuals and entities they regulate.7 In making rules, federal agencies are required to follow the requirements of the federal Administrative Procedure Act (APA).8 Agencies make adjudications, which are administrative actions that impact the rights of certain individuals.9 Agency staff have specialized skills in law, accounting, engineering and other areas that are crucial to effectively operate administrative agencies.10
DEVELOPMENT OF ADMINISTRATIVE LAW
George Washington Law School administrative law professor Richard J. Pierce Jr., author of Administrative Law Treatise, parcels the development of administrative law into four distinct phases: 1) historical development up to 1946; 2) historical development from 1946 to 1970; 3) historical development in the 1970s; and 4) historical development in the 1980s and 1990s.11
Congress created the first federal administrative agency, the Department of Foreign Affairs, on July 31, 1789, to “estimate duties payable” on imports and to perform other related duties.12 Later that same year, Congress renamed the Department of Foreign Affairs the State Department and created the departments of treasury and war.
As Congress continued to create federal administrative agencies, including the Department of Navy, the Office of the Attorney General, the Department of the Interior, the Department of Justice and the Post Office Department, administrative law developed prior to its actual recognition as an area of the law.13 In 1893, Columbia University administrative law professor Frank J. Goodnow published the first-known American book on administrative law, Comparative Administrative Law.14
In 1828, the United States imported steam engines from Great Britain and began building its own railroads.15 Sending goods by railway was less expensive than delivering them by carriage.16 However, the swift expansion of railroads in some states led to economic problems, such as monopolies and bankruptcies.17 In response, starting in the 1840s and 1850s, some states attempted to regulate railroads by passing laws to govern the railroads’ management, control and operation.18 However, such laws were mostly ineffective because the lawmakers who drafted them lacked the specialized knowledge needed for effective legislation.19 These legislative failures led states to create administrative agencies.20 Known as commissions, the agencies investigated railroads and applied their specialized knowledge to drafting legislation. However, state railroad commissions were themselves criticized for being mismanaged.21
Because individual states were unable to adequately regulate railroads, Congress passed the Interstate Commerce Act of 1887 to address abuses by railroads, such as high rates.22 For example, despite being less expensive than carriage transports, railroads charged farmers excessive rates to ship goods to market.23 The Interstate Commerce Act created the Interstate Commerce Commission (ICC), which was the first independent federal regulatory commission.24 By 1940, the ICC regulated most common carriers, including buses, taxis, interstate trucking, passenger trains and cruise ships. The ICC set rates, consolidated railroad systems and managed labor disputes. In the 1950s and 1960s, the ICC enforced Supreme Court decisions that mandated desegregation of passenger terminal facilities. In 1995, Congress terminated the ICC and transferred its remaining functions to the National Surface Transportation Board.25
Despite federal agency regulation, states continued to regulate railroads. In 1907, the first Oklahoma Legislature formed Oklahoma’s first state agency, the Oklahoma Corporation Commission (OCC).26 The OCC regulated telephone and telegraph companies, and railroad rates and routes.
In 1933, following the creation of more federal administrative agencies, the American Bar Association (ABA) appointed a special committee on administrative law.27 In 1934, the ABA’s special committee began issuing annual reports. The American Bar Association was very critical of administrative law and wanted to curtail it.
In 1939, President Franklin D. Roosevelt requested that the U.S. attorney general form a committee to investigate whether procedural reform in administrative law was needed.28 The committee included distinguished judges, practicing lawyers and professors. Administrative law was, and still is, criticized as being an unlawful, fourth branch of government that doesn’t conform to the constitutional ideal of the separation of powers among the legislative, judicial and executive branches of government.29
Congress enacted the federal Administrative Procedure Act to address concerns about administrative law.30 On June, 11, 1946, President Harry Truman signed the APA into law.31 It was the result of a compromise between the American Bar Association and the Truman administration, including the attorney general’s committee. The drafters of the APA intended to reform administrative law by: 1) improving the administrative process; 2) enhancing uniformity; and 3) preserving the basic limits on judicial review of administrative action.32 To ensure fairness and due process rights, the APA was drafted to make the administrative process align with the judicial process of courts.33 Due process protections in administrative law include ensuring: 1) notice of administrative action; 2) opportunity for a hearing with cross-examination; 3) adequate records and facts; and 4) appeal rights.34
In 1966, Congress enacted the Freedom of Information Act (FOIA), which required federal agencies to disclose information.35 Prior to FOIA, federal agencies restricted access to information and documents.36 Despite FOIA’s enactment, federal administrative agencies still resisted its disclosure requirements. In 1976, Congress amended the act to allow disciplinary actions against federal employees who did not comply with FOIA.
In the 1970s, significant developments in administrative law included: 1) increased use of rulemaking; 2) concern about informal and unreviewed discretionary action; 3) changes to agency practice brought about by FOIA; 4) amendments to the APA, which abolished sovereign immunity; and 5) increases in judicial activism.37
In 1974, Congress enacted the Privacy Act, which amended the APA.38 The Privacy Act is based upon one’s First Amendment right to privacy.39 The rationale behind the Privacy Act was to prevent the federal government from misusing individuals’ personal information.40 In 1975, the government in the Sunshine Act amended the APA to require federal agencies to hold open meetings and provide their records to the public.41 By mandating open records, the Sunshine Act was attempting to discourage collusion between federal agencies and the individuals and entities the agencies regulate.42
In the 1980s and 1990s, various U.S. Supreme Court cases addressed challenges to the constitutionality of administrative agency power.43 However, the court’s majority upheld the status quo of administrative agency powers. The Regulatory Improvement Act of 1998 amended the APA to authorize Congress to review federal agency rules.
STATE ADMINISTRATIVE LAW
The reformation of administrative law at the federal level also occurred at the state level. The Uniform Law Commission passed the first version of the Model State Administrative Procedure Act (MSAPA) in 1946.44 The drafters of the first version of the MSAPA communicated with the drafters of the federal APA. Since 1946, the MSAPA has been revised three times: in 1961, 1981 and 2010. The 2010 version was necessary to track changes in law at the state level over the past 28 years by legislatures who amended adjudication and rulemaking procedures and due to the internet. In 1987, Oklahoma adopted its own version of the state APA.45
Administrative law governs the operation of agencies that perform crucial consumer protection functions. Agency employees develop subject matter expertise in the areas they regulate. The federal and state APAs have provided a strong framework with necessary amendments over time to help ensure that federal and state agencies regulate within their subject matter jurisdictions as fairly as possible. Instead of focusing on the constitutionality of administrative law, current efforts should be directed at ensuring that federal and state agencies are managed efficiently and meet their missions of effectively delivering consumer protection to citizens.
1. Peter H. Schuck, Foundations of Administrative Law 5 (Foundation Press 1994).
2. Kenneth Culp Davis, Administrative Law and Government 6 (1975).
5. Stein, Mitchell, & Mezines, Administrative Law, 1-29 - 1-52 (LexisNexis 2013).
6. Id. at 1-30.
7. Id. at 1-35.
8. Id. at 1-37.
9. Id. at 1-42.
10. Davis, supra note 2, at 27.
11. Richard J. Pierce Jr., Administrative Law Treatise, 8-32 (4th ed. 2002).
12. Id. at 8.
14. Davis, supra note 2, at 11.
15. U.S. History, U.S. History Pre-Columbian to the New Millennium, www.ushistory.org/us/25b.asp.
17. Stein, Mitchell & Mezines, supra note 4, at 1-15.
22. Id. at 1-16; See also Davis, supra note 2, at 9.
23. Center for Effective Government, supra note 11, at 1.
24. Federal Register, Interstate Commerce Commission, www.
federalregister.gov/agencies/interstate-commerce-commission (last visited Sept. 23, 2017).
25. Surface Transportation Board, www.stb.gov/stb/index.html (last visited Sept. 23, 2017).
26. Oklahoma Corporation Commission History, www.occeweb.com/Comm/commissionhist.htm (last visited Oct. 3, 2017).
27. Pierce, supra note 11, at 12.
28. Id. at 14.
29. See e.g. Philip Hamburger, Is Administrative Law Unlawful? 1-2 (2014).
30. Pierce, supra note 2, at 15 (noting that the American Bar Association sponsored the Walter-Logan bill to curtail the administrative process).
31. Stein, Mitchell, & Mezines, supra note 4, at App. 1C-3.
33. Peter Woll, Administrative Law 16-17, 21 (1963).
34. Id. at 22.
35. Pierce, supra note 2, at 23.
36. Stein, Mitchell, & Mezines, supra note 4, at 1-58.
37. Pierce, supra note 11, at 23.
38. Stein, Mitchell, & Mezines, supra note 4, at 1-67.
39. Id. at 1-68.
40. Id. at 1-68.
41. Id. at 1-68 – 1-69.
42. Id. at 1-74.
43. Pierce, supra note 11, at 24-26.
44. State Administrative Procedure Act, Revised Model Summary, Uniform Law Commission, The National Conference of Commissioners on Uniform State Laws, www.uniformlaws.org/ActSummary.aspx?title=State Administrative Procedure Act, Revised Model.
45. Oklahoma Administrative Procedures Act, ok.gov/wcc/
ABOUT THE AUTHOR
Jeannie Ricketts is a staff attorney at the Texas Department of Insurance. She received a B.A. from Trinity University, in San Antonio, a J.D. from the University of Houston, an M.P.H. from the University of Texas School of Public Health and is board certified in administrative law by the Texas Board of Legal Specialization.
Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 2213 (Nov. 18, 2017)