Administrative law in the United States often relates to, or arises from, so-called "independent agencies"- such as the
Federal Trade Commission ("FTC"). Here is FTC's headquarters in
Washington D.C.
Administrative law (or regulatory law) is the body of law that arises from the
activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is
considered a branch of public law. As a body of law, administrative law deals with the
decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as international trade,
manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the
twentieth century, as legislative bodies world-wide created more government agencies
to regulate the increasingly complex social, economic and political spheres of human interaction.
Administrative law in common law countries
Generally speaking, most countries that follow the principles of common law have developed
procedures for judicial review that limit the reviewability of decisions made by
administrative law bodies. Often these procedures are coupled with legislation or other common
law doctrines that establish standards for proper rulemaking. Administrative law may
also apply to review of decisions of so-called quasi-public bodies, such as non-profit
corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a
particular group or entity.
While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be
reviewed by a court of general jurisdiction under
some principle of judicial review based upon due
process (United States) or fundamental justice (Canada). Judicial review of
administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only
look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under
question. This difference is vital in appreciating administrative law in common law countries.
The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In
terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is
patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S.
Administrative Procedure Act and New York State law). Administrative law,
as laid down by the Supreme Court of India, has also recognized two more grounds
of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.
The powers to review administrative decisions are usually established by statute, but were originally developed from the royal
prerogative writs of English law, such as the writ
of mandamus and the writ of certiorari. In certain
Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as
fundamental to the power of judicial review and an aspect of the independent
judiciary.
Administrative law in Australia
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Administrative law in Canada
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Administrative law in the United States
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In the United States legal system, many government
agencies are organized under the executive branch of government, rather than the judicial or legislative branches. The departments
under the control of the executive branch, and their sub-units, are often
referred to as executive agencies. The so-called executive agencies can be distinguished from the many important and powerful independent agencies, that are created by statutes enacted by the U.S. Congress. Congress has also created
Article I judicial tribunals to handle some areas of administrative
law.
The actions of executive agencies and independent agencies are the main focus of American administrative
law. In response to the rapid creation of new independent
agencies in the early twentieth century (see discussion below), Congress
enacted the Administrative Procedure Act (APA) in 1946. Many of the
independent agencies operate as miniature versions
of the tripartite federal government, with the authority to
"legislate" (through rulemaking; see Federal
Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the
United States Constitution sets no limits on this tripartite authority of
administrative agencies, Congress
enacted the APA to establish fair administrative law procedures to comply
with the requirements of Constitutional due
process.
The dominant U.S. Supreme Court case in the field of American
administrative law is Chevron U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837 (1984).
The American Bar Association's official journal concerning administrative
law is the Administrative Law Review.
Historical development
In his book, Administrative Law & Regulatory Policy (3d Ed., 1992) (Admin. Law & Reg. Policy ), U.S.
Supreme Court Justice Stephen Breyer divides the history of administrative law in the
United States into six discrete periods:
- English antecedents & the American experience to 1875
- 1875 - 1930: the rise of regulation & the traditional model of administrative law
- The New Deal
- 1945 - 1965: the Administrative Procedure Act & the maturation of
the traditional model of administrative law
- 1965 - 1985: critique and transformation of the administrative process
- 1985 - ?: retreat or consolidation
Administrative law in civil law countries
Unlike most Common-law jurisdictions, the majority of civil law
jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules
specifically designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims.
France
In France, most claims against the national or local governments are handled by
administrative courts, which use the Conseil d'État as a court of last resort.
Germany
In Germany, the highest administrative court for most matters is the federal administrative
court Bundesverwaltungsgericht. There are federal courts with
special jurisdiction in the fields of social security law (Bundessozialgericht) and
tax law (Bundesfinanzhof).
The Netherlands
In The Netherlands, administrative law provisions are usually contained in separate laws. There is however a single General
Administrative Law Act ("Algemene wet bestuursrecht" or Awb) that applies both to the making of administrative decisions and the
judicial review of these decisions in courts. On the basis of the AWB, citizens can oppose a decision ('besluit') made by a
public body ('bestuursorgaan') within the administration and apply for judicial review in courts if unsuccessful.
Unlike France or Germany, there are no special administrative courts of first instance in the Netherlands, but regular courts
have an administrative "chamber" which specializes in administrative appeals. The courts of appeal in administrative cases
however are specialized depending on the case, but most administrative appeals end up in the judicial section of the Council of
State (Raad van State).
In addition to the system described above there is another part of administrative law which is called "administratief beroep"
(administrative appeal). This procedure is available only if the law on which the primary
decision is based specifically provides for it and involves an appeal to a higher ranking administrative body. If administrative
appeal is available, no appeal to the judicial system may be made.
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