Federal administrative law plays an important role in our everyday lives. Health care, banking, education, food & drug safety, transportation, national parks and monuments, environmental protections, ERISA, labor and employment, and immigration are some of the areas affected by federal regulations and other agency actions.
Federal agencies have quasi-legislative and quasi-judicial functions. Similar to the legislature, federal agencies develop guidance documents and adopt rules and regulations to interpret federal statutes. Similar to the judiciary, many agencies conduct hearings and issue opinions. Last some agencies also have the authority to investigate regulatory violations and impose civil penalties.
There is not often an easy answer to the "Where do I start?" question when researching federal administrative law.
Federal administrative law derives from a number of sources: the Office of the President, Executive Branch agencies, and federal independent agencies. In addition, federal agencies often have multiple functions (i.e., law making and adjudicative powers). As a result your research may involve locating executive orders and proclamations, agency rules and regulations, agency guidance documents, agency decisions and opinions, and a variety of other agency documents.
Administrative law research is typically more complicated than case law or statutory research. One reason is that there is often not a clear indication of where to look for the material you need to complete your research. As a researcher, you must first identify the federal agency or executive branch unit that regulates the issue you are researching. Advice on how the identify the relevant agency is found in this research guide under the "Agencies" tab. You must then determine what aspect of the agency's work you are researching, e.g., rules or regulations, agency enforcement decisions, or opinion or policy statements.
As in all legal research, you will be more efficient in your research if you properly frame your question and determine your research goal before commencing your research.
This guide describes administrative law materials and provides guidance on the research process.
Federal rules and regulations* are promulgated by federal agencies to implement statutes passed by the U.S. Congress. Congress delegates legislative authority to a federal agency via an "enabling act" that instructs the agency to adopt rules and regulations to carry out the intent of the statute. Once adopted, the rule or regulation has the full force and effect of law. The process is generally referred to as "rule making."
The process of rule making is governed by the Administrative Procedure Act, 5 USC § 553 (2010) (the "APA"). Under the APA, an agency must publish the proposed rule or regulation in the Federal Register and provide for a public comment period. After comments are received, the agency may decide to hold hearings. If the rule or regulation is revised, it must be republished and provide for a new public comment period. The final version of the rule or regulation must also be published in the Federal Register. The process is often referred to as "notice and comment" or "informal" rulemaking. The rule or regulation will then be codified into the Code of Federal Regulations.
*The terms "rule" and "regulation" are used interchangeably.
Established by the Paperwork Reduction Act in 1980, the Office of Information and Regulatory Affairs ("OIRA") of the Office of Management and Budget reviews federal regulations and information collection by federal agencies. Executive Order 12866 directs agencies to follow certain principles in rulemaking, such as consideration of alternatives and analysis of benefits and costs, and describes OIRA's role in the rulemaking process.
OIRA review occurs after the regulations have been through the rule making process. The ability to review and therefore, delay, the implementation of regulations has caused some controversy. Additional information regarding this agency:
The Regulatory Review Dashboard is a public website that discloses information about OIRA's review of draft regulations under Executive Order 12866 and Executive Order 13563. This dashboard graphically presents information about rules under OIRA review through an easy-to-use interactive display, and it allows the public to sort rules by agency, length of review, state of rulemaking, economic significance, and international impacts.
In addition, the ICR Dashboard displays agency information collection requests to OIRA for review under the Paperwork Reduction Act.
It is most likely that OIRA and its role in the rulemaking process will continue to be a hotly discussed topic for some time.
Dashboard graphic credit: Office of Management and Budget and the General Services Administration.