Intelligence Law School - Course 1: Lesson 5.1.3 What is “Blackletter Administrative Law”? [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.1 Introduction to Administrative Law


5.1.3 What is “Blackletter Administrative Law”?


Lecture Audio



Annotated Lecture Transcript

5.1.3 What is “Blackletter Administrative Law”?

So, what am I talking about when I talk about the 3rd category of law—“Administrative Law?”  

The answer is not as easy as you might think.

There are actually many definitions of “administrative law.”[1]

The definition we’ll be using in this course and the courses on IntelligenceLaw.com refers to the blackletter rules created by the President and the agencies themselves.

The “administrative laws” we study in these courses are the actual blackletter administrative rules issued by the agencies or the President to govern intelligence agency operations when those rules carry the force and effect of law.

When I say “administrative law” I’m talking about it as one of the 3 sources of primary legal authority in the federal system.

 

Ø  Constitutional Law: Remember, the first source—Constitutional Law—comes from the U.S. Constitution itself.

o   It includes the blackletter text of the Constitution itself as well as binding federal judicial decisions interpreting those provisions;

 

Ø  Statutory Law: The second source—Statutory Law—is created by Congress.

o   It includes the blackletter provisions in duly enacted statutes passed by Congress as well as any binding federal judicial decisions interpreting those statutes.

 

Ø  Administrative Law: The third source of law—Administrative Law—is created by the President and agencies themselves.

o   It includes the blackletter legislative rules promulgated by agencies and the President that carry the full force and effect of law.

o   It also includes any judicial decisions interpreting these legislative rules; although, such decisions are rare.

Ø  Non-Legislative Rules as Secondary Authority: Non-legislative rules are also an important source of secondary authority at the administrative level.

o   They do not carry the full force and effect of law in their own right, so they are not considered to be a source of primary legal authority in the federal system.

 

In this series, I’m focused on primary legal authority, so I narrow the definition of “administrative law” to focus exclusively on the legislative rules promulgated by agencies and the President which carry the full force and effect of law.

Since judicial decisions are so rare in the intelligence field, I flesh out your understanding of administrative law with interpretive secondary sources like non-legislative rules or internal directives that interpret the blackletter federal statutes and legislative administrative rules that constitute primary legal authority in the federal system.

While these non-legislative rules are important to understanding intelligence law, it’s important to distinguish them from the legislative regulations that constitute primary legal authority with the force and effect of law in their own right.

 

The definition of “administrative law” I’ll be using in this course, and in later courses on IntelligenceLaw.com, refers to the blackletter legislative rules or regulations promulgated by agencies and the President to govern intelligence agency operations.

In order to be “administrative law” under this definition the rules in question must carry the full force and effect of law in their own right.

They are what constitute primary legal authority in the federal system.

And so they are what I am talking about when I talk about “administrative law” in this course and later courses IntelligenceLaw.com.[2]

 

Footnotes

[1] Black’s Law Dictionary defines “Administrative Law” slightly differently, breaking it into 3 rather than 2 categories. Black’s Law Dictionary 46 (7th ed. 1999); see also Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614, 615 (1927).

The definitions of “administrative law” used by Black’s Law Dictionary and other sources differ from the definition used in this course because they often include not only the sources of primary legal authority at the administrative level but also sources of secondary authority produced by agencies—e.g. agency-made reports and opinions, the dicta of which would not represent binding primary authority with the full force of law their own right. See generally Black’s Law Dictionary’s Black’s Law Dictionary 46 (7th ed. 1999).

[2] IntelligenceLaw.com’s courses, publications, and online law library are all structured around the 3 categories of law, which are based on the 3 blackletter sources of primary legal authority in the federal system:

1)       The U.S. Constitution;

2)      Federal statutes enacted by Congress; and

3)      Administrative regulations promulgated by federal agencies or the President carrying the full force and effect of law.

Any binding federal judicial decisions interpreting these 3 blackletter sources are also considered primary legal authority in the federal system and they are included and discussed as part of the 3 individual categories of law.

Non-legislative rules are also important sources of secondary authority that can be used to understand administrative law, but they do not have the force and effect of law in their own right and therefore are not included as part of the 3 blackletter sources of primary legal authority in the federal system.

 


© 2012 David Alan Jordan. All rights reserved.