Intelligence Law School - Course 1: Lesson 5.1.4 Blackletter Administrative Law vs. Law School Courses on “Administrative Law” [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.1 Introduction to Administrative Law


5.1.4 Blackletter Administrative Law vs. Law School Courses on “Administrative Law”


Lecture Audio



Annotated Lecture Transcript

5.1.4 Blackletter Administrative Law vs. Law School Courses on “Administrative Law”

The reason I mention this is because this logical definition of “administrative law” is actually not the same definition used by most law school courses to describe what you learn in their “Administrative Law” courses.

This is including the administrative law course I taught at Washington and Lee Law School.

Most of the time, when you take a course on “Administrative Law” in law school, what you’re really taking is “Statutory Administrative Procedure.”[1]

You’re not studying the blackletter administrative rules and orders issued by agencies; you’re studying a federal statute called the Administrative Procedure Act or APA.

The APA is the statute that tells agencies the procedures they have to use to promulgate legislative rules.

 

We talk about statutory administrative procedure in this first course introducing you to legal sources, but when we discuss “administrative law” in the substantive intelligence law courses later on we’re always talking about the blackletter legislative rules or regulations promulgated by agencies or the President to regulate intelligence activities.[2]

Also, since judicial decisions interpreting administrative rules are exceptionally rare, later courses will rely heavily on non-legislative internal administrative issuances implementing or interpreting those blackletter rules inside the agencies.

These documents are usually drafted by each agency’s General Counsel’s office.

Although they don’t carry the full force and effect of law in their own right, non-legislative rules and orders can be instrumental in understanding how primary legal authority is interpreted and applied inside intelligence agencies.

 

Footnotes

[1] In law school, the topic called “Administrative Law” often includes all of the law governing administrative agencies—including constitutional, statutory, and administrative law. The law school definition of “Administrative Law” doesn’t discuss substantive agency rules, but instead covers all of the constitutional and statutory law topics affecting administrative agencies. Constitutional law issues discussed in law school Administrative law courses include the presidential appointment and removal powers, the non-delegation doctrine, and judicial review of agency action. Law School courses also include a host of statutory law topics such as the following: rulemaking and adjudication under the Administrative Procedure Act; and open government requirements under the Freedom of Information Act, Privacy Act, and Government in the Sunshine Act. The law school topic also sometimes includes substantive administrative regulations promulgated by agencies on a particular regulatory field, but not usually. Some professors might focus on a few specific regulations from an agency of interest to them like environmental regulations of the EPA, or SSI regulations from the Social Security Administration, or regulations from some other agency with which they are familiar. The typically do this sparingly and only in order to show how statutory rulemaking procedures are applied in practice to produce regulations. In my Administrative Law class for W&L Law School, I tried to make things more interesting for my students by using intelligence-law related examples like security clearance adjudications and non-legislative rulemaking by intelligence agencies to illustrate the statutory administrative procedure issues we were discussing.

[2] NOTE TO STUDENTS: If I were to talk about the topic law school’s call “Administrative Law”—i.e. “statutory administrative procedure”—I would discuss it as part of my statutory law analysis. This is because the APA is a statute. I’m planning to get into all of the other areas taught as part of a law school course on “Administrative Law” in relevant constitutional or statutory law discussions in later courses. I plan to cover law-school administrative law topics on a variety of topics ordinarily covered in the standard law school administrative law curriculum. This includes topics such as individual intelligence agency powers under various enabling statutes; Freedom of Information Act and Privacy Act issues; appointment and removal of intelligence agency leadership; judicial review of intelligence agency action; agency adjudications related to security clearances. For now, though, you need to know what constitutes “law” before you can start mixing and matching different sources. It’s much easier this way, believe me—administrative law is a jungle already without keeping things logically compartmentalized.

 


© 2012 David Alan Jordan. All rights reserved.