Intelligence Law School - Course 1: Lesson 2.3.5 Administrative Law [HTML-Only]


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LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.3 The Three Fundamental Categories of Federal Law


2.3.5 Administrative Law


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Annotated Lecture Transcript

2.3.5 Administrative Law

2.3.5.1 Sources of Administrative Law Generally

The third and final category of law is administrative law.

Administrative law includes

1)      The blackletter text of legislative rules[1] promulgated by an administrative agency or the President when those rules carry the full force and effect of law.

2)     It also includes the holdings in any binding judicial decisions interpreting those rules.

 

2.3.5.2 Legislative Rules

Administrative rules with the force and effect of law are called “legislative rules.”

Legislative rules have the full force and effect of law.

Non-legislative rules do not.[2]

Ø  Legislative rules are also called substantive[3] rules or regulations.

o   Since they have the full force of law—and only Congress has the constitutional authority to make new laws—legislative rules must be promulgated pursuant to a delegation of lawmaking power from Congress.[4]

o   Legislative rules must also be promulgated in accordance with any mandatory statutory procedures required by Congress.

o   Usually, the default procedures will be the notice-and-comment procedures for informal[5] rulemaking found in section 553 of the Administrative Procedure Act (“APA”).[6]

 

2.3.5.3 Non-Legislative Rules

In addition to legislative rules, agencies also flesh out their understanding of the primary legal authority governing their operations through non-legislative rules that are issued internally.

Ø  Non-legislative rules don’t have the force and effect of law.

o   Non-legislative rules are divided into 3 different categories under the Administrative Procedure Act.[7]

o   They can be either:

§  Interpretive Rules;[8]

§  General Statements of Policy;[9] or

§  Rules of Agency Organization, Procedure, or Practice.

o   An example of an important set of non-legislative rules in U.S. intelligence law is the The Attorney General’s Guidelines for Domestic FBI Investigations.[10]

o   These guidelines are not legislative rules.

o   They don’t carry the force and effect of law.

o   But they do tell all FBI agents how they must carry out their investigations on the ground, which makes these guidelines critical to understanding the safeguards that defend Americans’ rights during domestic investigations.

 

Although non-legislative rules like these aren’t primary legal authority in their own right, and they don’t technically have the force and effect of law like regulations, they are still very important sources of secondary authority.

This is because they explain how an intelligence agency understands its statutory mandate and legal obligations.

They also detail the specific policies its employees must use to carry out the agency’s operations on the ground. 

Non-legislative rules are particularly important in U.S. intelligence law because they fill in the many gaps in the primary legal framework.

They express the policies governing the bulk of legally ambiguous or otherwise unregulated activities of U.S. intelligence agencies.

 

Even though they’re not technically “law,” non-legislative rules are essential to understanding U.S. intelligence law because they establish the operative rules governing how pretty much everything is done within an agency.

They establish and maintain the normative environment within which most intelligence activities take place.

They are therefore critical to assessing these agencies’ respect for the rule of law and the rights of individuals.

This is particularly important in the intelligence field, which is often plagued by weak statutory protections and poor external oversight.  

 

Discussion of non-legislative rules is a central part of my intelligence law courses.

I think learning U.S. intelligence law without studying non-legislative rules would be like learning how to swim without water.

 

I discuss the creation of administrative rules—both legislative and non-legislative—in considerable detail later on in Lesson 5 of this course.

Lesson 5 introduces you to the sources of administrative law in the U.S. Intelligence Community.

 

2.3.5.4 Administrative “Orders” Are Not Binding Precedent

In Lesson 5, I also talk about “orders” as the other type of administrative law next to “rules.”

I don’t mention administrative “orders” here as one of the 4 sources of generally applicable primary legal authority because orders are not binding legal precedent with legal effect outside of the specific parties involved in the adjudication that produces them.

“Orders”[11] are the product of agency adjudications.[12]

They generally do not have legal effect beyond the parties involved in the matter being decided, so they do not represent generally-applicable primary authority.

The principle of stare decisis doesn’t apply to administrative “orders.”[13]

As a result, orders do not constitute legal precedent that is binding on the agency or future decision makers in the same way a federal judicial decision is binding in future cases decided by lower courts.

The agency is free to decide things differently in future adjudications, provided its actions aren’t arbitrary or capricious.[14]

 

I’ll explain the difference between “rules” and “orders” and the difference between “rulemaking” and “adjudication” later on in Lesson 5.

 

Footnotes

[1] 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a 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 and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[2] For an explanation of the difference between legislative/substantive rules and non-legislative/non-substantive rules, see Syncor International Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (“the crucial distinction between [a substantive rule] and the other two techniques is that a substantive rule modifies or adds to a legal norm based on the agency's own authority. … That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking. And, it is because the agency is engaged in lawmaking that the APA requires it to comply with notice and comment.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[3] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”).

[4] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Substantive rules--rules, other than organizational or procedural under section 3 (a) (1) and (2), issued by an agency pursuant to statutory authority and which implement the statute, […]. Such rules have the force and effect of law.”) (emphasis added).

[5] In addition to “informal” rulemaking there is also a set of procedures for “formal” rulemaking under the APA. When a statute requires “formal” rulemaking, agencies must not only afford the basic requirements for informal “notice-and-comment” rulemaking contained in Section 553 of the APA, but they must also augment those procedures with the additional procedures contained in Sections 557 and 558 of the APA. See 5 U.S.C. § 553(c) (“[…] When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection.”).

See also 5 U.S.C. § 557 (2010) ("Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record: (a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title [5 U.S.C. § 556]. (b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title [5 U.S.C. § 554(d)], an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556], shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title [5 U.S.C. § 556] shall first recommend a decision, except that in rule making or determining applications for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. (d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute authority to withhold information from Congress.").

See also 5 U.S.C. § 558 (2010) ("Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation, and Expiration of Licenses: (a) This section applies, according to the provisions thereof, to the exercise of a power or authority. (b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. (c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.").

[6] 5 U.S.C. § 553 (2010) ("(a) This section applies, according to the provisions thereof, except to the extent that there is involved—(1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 U.S.C. §§ 556 and 557] apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.").

[7] These three categories of non-legislative rules are mentioned in 5 U.S.C. § 553(b), which exempts them from most of § 553’s informal rulemaking procedures that are mandatory by default for the promulgation of legislative rules.  See generally 5 U.S.C. § 553(b)(A) ("[...] Except when notice or hearing is required by statute, this subsection [5 U.S.C. § 553(b)] does not apply—(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; [...]). In addition to these basic 3 categories of non-legislative rules, some scholars add an additional category they call “publication rules.” Their idea stems from a section in the Freedom of Information Act, codified at 5 U.S.C. § 552(a)(2) that requires agencies to “make available for public inspection” all “statements of policy and interpretations” not published in the Federal Register, as well as “administrative staff manuals and instructions to staff that affect a member of the public.” Proponents of the additional category of “publication rules” argue that these internal administrative manuals represent a category of publication entirely separate from the basic 3 categories of non-legislative rules, i.e. interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. See Peter L. Strauss, The Rulemaking Continuum, 41 Duke L. J. 1463 (1992); see also Peter L. Strauss, Todd Rakoff, Roy A. Schotland, & Cynthia R. Farina, Gellhorn and Byse’s Administrative Law: Cases and Comments 388, at note 1 (9th Ed. 1995).

[8] See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“Interpretative rule--rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. See Final Report. p. 27; Senate Comparative Print of June 1945, p. 6 (Sen. Doc. p. 18); Senate Hearings (1941) p. 330.”).

[9] See Attorney General's Manual on the Administrative Procedure Act (1947) 38 (“General statements of policy--statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”); see also Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 22, 38-39 (D.C. Cir. 1974) (“The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law.  In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.  The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a ‘binding norm.’ It is not finally determinative of the issues or rights to which it is addressed.  The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.  A policy statement announces the agency's tentative intentions for the future.  When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.”) (internal citations omitted).

[10] For an excellent history of the Attorney General’s Guidelines on Domestic FBI Investigations, you should check out the Electronic Privacy Information Center’s guide on their website. See Electronic Privacy Information Center, The Attorney General’s Guidelines, Epic.org, available at http://epic.org/privacy/fbi/.

[11] It also includes “licensing.” The Administrative Procedure Act of 1946, 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing."). "Rule making" is defined in 5 U.S.C. § 551(5) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule Making' means agency process for formulating, amending, or repealing a rule."). "Rule" is defined in 5 U.S.C. § 551(4) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Rule' means the whole or a 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 and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.").

[12] The Administrative Procedure Act of 1946, 5 U.S.C. § 551(7) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Adjudication' means agency process for the formulation of an order."). "Order" is defined in 5 U.S.C. § 551(6) (2010) (Title 5—Chapter 5: Administrative Procedure) ("'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.").

[13] See 2 Am Jur 2d Administrative Law § 376.

[14] See generally 5 U.S.C. § 706; see also Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Agency exercises of judgment or discretion, such as in informal rulemaking or informal adjudication, are reviewed under the “arbitrary, capricious, abuse of discretion” standard.  Under this standard, an agency determination will be upheld if it is rational, based on a consideration of the relevant factors, and within the scope of the authority delegated to the agency by Congress.  The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made.  A court is not to substitute its judgment for that of the agency (see Motor Vehicle Mfr’s Assoc. v. State Farm Mut. Auto Ins. Co., 463, U.S. 29, 42-43 (1983)).”).

 


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