If the reader understands how administrative law works, she will be able to do excellent legal research as well.
Thus, let’s get started, and see what administrative law is and how it works. This approach will also make it easier for the foreign student of American law, because it promotes understanding based on the similarities and differences between American administrative law and the body of law the civil law countries, for example, call administrative law. Only then, it will make sense to locate repositories of administrative law and describe techniques of how to become a proficient administrative law researcher.
Article 1 of the Federal Constitution delineates the congressional legislative powers to well defined, specific socio-economic areas, such as interstate commerce. Within those areas the congressional legislative powers are absolute. This means that Congress adopts all necessary laws for the proper functioning of those socio-economic areas. Congress discharges itself of these duties directly, by enacting statutes, or indirectly, by delegating its powers to other governmental entities: federal agencies.
Federal agencies have a long history in this country, and they date back to the 19th century. Why does Congress delegate its legislative powers? There are a few answers equally valid to this question. First, Congress is in session a limited number of days each year, and when in session Congress can regulate only those issues that were brought to its attention. Then, as shown in previous chapters, there are limited ways in which Congress can initiate legislative action. Furthermore, even when it acts, Congress is not able to pass sufficiently detailed legislation that will answer all the public needs accordingly. However, the history of federal agencies is not a linear one.
For example, agencies like the Interstate Commerce Commission and the Federal Trade Commission were created in an attempt to redress what was perceived as undesired socio-economic problems and to control the anticompetitive conduct of monopolies and powerful corporations. In what appears to be a reverse of the original trend, new powers are given to bureaucracies in a desire to create a political agenda rather than answer public demands for action and redress social problems.
The transfer of power occurs under the delegation doctrine. This doctrine requires that that the enabling statute details the role of the regulatory agency in precise terms that will make supervision by the legislature meaningful. Aside from legislative control, agencies that have judicial powers, in addition to their legislative attributes, are also supervised by the courts, and thus open to judicial review. Agencies develop cumbersome procedural rules that they follow during both rulemaking and adjudicatory process. However, there are some common features that they follow and they will be briefly described below.
For instance, after March 1, 2003, the Immigration and Naturalization Service (INS) has been incorporated into the Department of Homeland Security, the Directorate of Border and Transportation Security (i.e., U.S. Customs and Border Protection and the U.S. Immigration and Custom Enforcement), the U.S. Citizenship and Immigration Services (USCIS), the Office of Shared Services, and the Office of Immigration Statistics.
Within this bureaucratic hierarchy, the federal statute delineates the legality of all administrative rules. For instance, The Immigration Act of 1990, P.L. 101-649, codified at 8 U.S.C. 1151 et seq., which was passed “to stimulate ‘new seed’ immigration from parts of the world that are under-represented in the U.S,” sets out the layout for the immigration process. Within this process, it mentions the categories of temporary workers and trainees, Visa H-1B non immigrants (section 205). While the number of H-1B petitions is in constant decline, there are still more than 100,000 petitions filed each year. The process for filing those petitions, in addition to their sheer number, is too specialized and too concrete for Congress to overview and regulate. In such an instance Congress authorizes a federal agency (today that is Homeland Security) to further detail the immigration statutory provisions into specific rules and regulations which explain the process of filing such petitions, for instance.
Immigration is only one are in which our Congress, on a regular basis, has delegated its regulatory powers to a federal agency, which further details its norms. Congressional statutes empower federal agencies, such as the Securities Exchange Commission or the Food and Drug Administration, or Homeland Security to deal with all issues within their delegated powers in two ways: through rulemaking and through adjudication, the cornerstones of administrative law, and administrative legal research.
- Introduction to Administrative Law Research: Researching Administrative Rulemaking (Rules) and Administrative Adjudication (Decisions)
- (Federal and State) Repositories of Administrative Law
- How to Locate Specific Primary Sources of Administrative Law
- Completing Administrative Law Research