Administrative Law is one of the bodies of law which governs or provides guidance to the activities, undertaken by the administrative agencies of the government.
The actions of the government form different aspects of the administrative law.
These include rulemaking and adjudication, among the other things.
However, each of these aspects are very detailed in their own manner (Endicott, 2011).
For instance, there are two types of rulemaking, i.e., formal rulemaking and informal rulemaking; and the same is the case with adjudication, i.e., formal adjudication and informal adjudication.
There are different methods of the legislative, executive and judicial control of the administrative agencies.
When a law is passed by the Congress, which is a complicated issue and it needs details on how the law can be implemented or enforced, the government departments and administrative agencies fill such gaps for the Congress.
They pass the required regulations and the additional rules so that the goals of the Congress can be achieved (Wade and Forsyth, 2009).
A regulatory agency can be defined as a body of government which is created through a legislation for the implementation and enforcement of the particular laws.
The laws are implemented by the regulatory agencies through a specific set of procedures (Kulakowski & Chronister, 2008).
Once the regulations have been implemented, the same have to be enforced.
Rulemaking, under the administrative law, is the process which is used by the independent agencies and the executives regulating and creating regulations (Gormley & Balla, 2012).
Generally, the broad policy mandates are set by the legislatures through passing of statutes and then the agencies create regulations through the rulemaking, which is more detailed in nature (Scheb, 2002).
A crucial role played in the rulemaking relates to the balancing of the public interest with the individual liberties (Mendes, 2014).
The first step is the creation of law through the Congress, which is meant to deal with the economic/ social needs or problems.
Followed by this, the appropriate regulatory agency creates the regulations, which are needed for the proper implementation of the law.
For instance, the regulations under the authority of the Controlled Substances Act, 1970, Food Drug and Cosmetics Act 1938, and numerous other legislations, which have been formed by the Congress during the past years, are created by the Food and Drug Administration (Longley, 2016)
Reliance is made on rulemaking by the legislatures, for adding the industry, scientific or economic expertise towards a particular policy.
In short, it helps in fleshing out the larger authorization of mandating the law.
Agency plays a crucial role in rulemaking as the rules are developed by the federal agencies.
So, through the authority of agencies, the rulemaking is carried on.
However, in certain cases, it is mandatory for the agencies to create the rules, either through the court order or through the Congress.
Even though the attention of the public is focused on the President and the Congress, but most of the work of carrying out the policies is carried on by the administrative agencies (Center for Effective Government, 2015).
The agency rulemaking helps in regulating of the society as it provides the detailed rules, which have to be followed by the members of society and also provides a guidance in differentiating between what is right and what is wrong.
It determines the guidelines for the implementation of regulations based on statutes passed by congress. Moreover, it provides acceptable behavior under the legislation.
The new rules are created by the government agencies, along with the modification, repealing and amendment of the pre-existing rules through the use of informal rulemaking process.
The use of informal rulemaking process is higher in comparison to the formal rulemaking process.
There are instances where an agency might publish a notice regarding a planned new rule, so as to seek the input from public before the agency is finished with the drafting of rules (Adams, 2009).
If this is not done, the proposed rules are published in the Federal Register, along with the relevant commentary.
In the formal rulemaking, a hearing has to be conducted on record by the agency, and at such a hearing, the evidence has to be brought forward.
A panel of judges or an Administrative Law Judge then makes the final determination, with regards to the rules.
The parties who are affected by such rules in a direct manner, have the right to notice of the hearing and can also make a direct intervention to such proceedings.
The decision taken by the Administrative Law Judge can be subjected to a review of the higher Federal Court (Justia, 2017).
Administrative adjudication refers to the administrative agency’s use of the judicial powers.
It is the process through which the administrative agencies issue a negative, declaratory, affirmative or injunctive order (US Legal, 2017a).
The judicial power is delegated to the agency by the legislative body.
In general, the disputes between the government and the individuals are dealt with the administrative agencies.
There are two general categories of adjudication (Cane, 2009).
The first one is the adjudication of a claim for a benefit.
And the second relates to the determination regarding the contravention of a regulation or rule by an individual or business.
It can be divided broadly into two segments, i.e., the formal adjudication and informal adjudication.
The policies of the agencies are applied to the actions of the parties, which occurred in the past.
The result of adjudication is an order for or against the party (Ltiwak, 2012).
At the federal level, the adjudication is in the form of a trial and is generally referred to as an administrative hearing. On the other hand, the informal adjudication is often presented as an administrative process, which is neither a hearing nor a rulemaking (Miller & Jentz, 2007).
Formal adjudication is such an adjudication which is required by the statute for determining on record, after an opportunity has been provided for an agency hearing.
The resemblance in this is that of trails , which take place in the court of law. The Administrative Law Judges are the only ones who could preside over formal adjudications (DeLeo, 2008).
On the other hand, under the informal adjudications, the agencies have the freedom of choosing the procedure for dispute resolution. These are presided over by the Administrative Judges (Werhan, 2014).
In short, in a formal adjudication, a hearing would always take place, though, in informal adjudication, the same may or may not occur.
The decision taken under the informal adjudication is subjected, in general, to judicial review.
The procedure under formal adjudication is such, as is undertaken in a court of law and in informal adjudication, there is no set procedure and can be found in the organic legislation, which authorizes the decision.
The decision making by the agency, in nature, can be classified as either rulemaking or adjudicatory.
The legislature confers the discretionary powers over the administrative agencies as they hold the specialization and expertise for dealing with the matters, which have been delegated through the legislation to the agency.
When the law, which is drafted through legislation, is vague in nature, the discretionary powers of the agencies can be exercised for interpretation of the law.
Though, this cannot be contradictory to the policies of the government. In Ford Motor Co. v. FTC, 673 F.2d 1008 (9th Cir. 1981) it was established that there is a discretionary power with the administrative agencies for adopting new rules, through either or both, rulemaking or adjudication.
Though, the same has to be as per the intention of the legislature as was held in R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170 (N.J. 1999) (US Legal, 2017b).
It was held in RCJ Medical Servs. v. Bonta, 91 Cal. App. 4th 986 (Cal. App. 2d Dist. 2001) that the administrative agency exercises its discretionary powers in an individual adjudication or the statutory rule making process.
In order to deal with these, certain ideas have been presented, which are to be used in a complementary manner to the goals.
Private Innovations should be allowed to flourish.
There is a need to amend the capital gains tax laws, along with the modification in certain statues which relate to the private money.
The legal tender law with regards to the private contracting freedom, and anti money laundering laws also have to be amended.
There is a need for the Fed to select a rule based policy, which is short term.
By adopting such policy, the predictability and transparency can be improved in a huge manner.
There is a need to end the emergency lending of the Federal Reserve.
To end the role of Fed as being a Financial regulator.
Replacing the Primary Dealers of the Fed with a System-wide Auction.
Ending the Reverse Repo Program of the Fed (Michel, 2016).
References
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Annenberg Foundation. (2016). Topic Overview Unit 14. Retrieved from: https://www.learner.org/courses/democracyinamerica/dia_14/dia_14_topic.html
Beermann, J.M. (2010). Administrative law. New York: Aspen Publishers.
Calvi, J.V., & Coleman, S. (2015). American law and legal systems (7th ed.). New York: Routledge.
Cane, P. (2009). Administrative tribunals and adjudication. Portland: Hart Publishing.
Center for Effective Government. (2015). The players in rulemaking. Retrieved from: https://www.foreffectivegov.org/node/3462
DeLeo, J.D. (2008). Administrative law. New York: Delmar Cengage.
Department of Justice. (2015). Administrative Procedure Act. Retrieved from: https://www.justice.gov/jmd/ls/administrative-procedure-act-pl-79-404
Endicott, T. (2011). Administrative law (2nd ed.). Oxford: Oxford University Press.
GitHub. (2017). 5.2 Controlling Administrative Agencies. Retrieved from: https://saylordotorg.github.io/text_introduction-to-the-law-of-property-estate-planning-and-insurance/s08-02-controlling-administrative-age.html
Gormley, W.T. & Balla, S.J. (2012). Bureaucracy and democracy, accountability and performance (3rd ed.). Washington DC: CQ Press College.
Hahn, R.W. (2017). State and federal regulatory reform: a comparative analysis. Retrieved from: https://localgov.fsu.edu/papers/archive/Hahn_001.pdf
Justia. (2017). Formal rulemaking. Retrieved from: https://www.justia.com/administrative-law/rulemaking-writing-agency-regulations/formal-rulemaking/
Kulakowski, E.C., & Chronister, L.U. (2008). Research administration and management. Sudbury, Massachusetts: Jones and Bartlett Publishers.
Legal Information Institute. (2017). 5 U.S. Code § 554 – Adjudications. Retrieved from: https://www.law.cornell.edu/uscode/text/5/554
Litwak, J.B. (2012). A Guide to Federal Agency Adjudication (2nd ed.). Illinois: American Bar Association.
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Mendes, J. (2014). Rule of law and participation: A normative analysis of internationalized rulemaking as composite procedures. International Journal of Constitutional Law, 12(2), 370-401. DOI: https://doi.org/10.1093/icon/mou018
Michel, N. (2016). The fed needs reform: six changes for monetary policy. Retrieved from: https://www.heritage.org/report/the-fed-needs-reform-six-changes-monetary-policy
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Rossum, A., & Tarr, G.A. (2016). American constitutional law, volume i: the structure of government (10th ed.). Boulder, CO: Westview Press.
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Werhan, K. (2014). Principles of Administrative Law, 2d (Concise Hornbook Series) (2nd ed.). Minnesota: West Academic.
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