relationship between constitutional law and administrative law? The issue On the matter of definition, Frederic William Maitland provides us with an important. 'What are the procedures by which these protection orders are imposed?', Police go orders are also in place in Bulgaria as part of administrative law. .. a protection order solely based upon the declaration.8 In this relation, practitioners . secondly, the administrative-law relationship is analysed. .. the context will consequently define the content of a constitutional theory. Review in South African Administrative Law” and quotes the latter's description of.
State officials, including the lieutenant governor, the attorney general, and a variety of other state-level authorities, are independently elected in some states, rather than chosen by the chief executive. First, the parsimony of the contrast and comparison with the federal is more clarifying than attempting to map the range of local variations against fifty states—the comparative configurations are almost endless, although worthy of further exploration.
And, finally, notwithstanding the importance of state practice, federal predicates still generally set the terms of mainstream administrative law discourse about judicial review, agency process, mechanisms of accountability, concerns about capture, and similar core questions.
Federal Themes in the Administrative Law Discourse If a very familiar federal structure undergirds much of our understanding of administration, an equally familiar set of jurisprudential and theoretical concerns flows from that structure.
Generally speaking, mainstream administrative law—particularly in the context of judicial review of agency action—revolves around a core set of formal and functional arguments.
Common formal grounds for structuring judicial review derive from the basic implications of separation of powers principles, including explicit or implicit legislative delegation. Functional arguments for judicial deference are more varied, but the most prominent balance a tension between technical expertise and agency accountability against concerns about capture, myopia, and agency insulation.
For a half-century or more after the New Deal, as the federal administrative state grew, the exercise of governmental power by bureaucratic actors—as opposed to those more directly accountable to the voters—stood in need of justification.
This need was particularly salient with respect to agencies whose statutory mandates were written in broad and open-ended terms. These frameworks allow Congress, in essence, to confer quasi-legislative power on agencies within broad limits. Congress was free to vest agencies with broad policymaking discretion and a mix of rulemaking, investigatory, prosecutorial, and adjudicative authority, and could shelter some agency heads from direct presidential control, so long as Congress did not unduly enlarge its own power at the expense of the other two branches in the process.
With this approach by the Court, the task of vindicating the accountability and rule-of-law values associated with the nondelegation doctrine largely fell to procedural legislation and executive oversight. The major landmark in this regard was the enactment of the APA. This framework statute was a lawyerly reaction to the explosion of regulatory activity during the New Deal. These themes recur, but often in quite unfamiliar ways, in the local context.
Multiply the vast number of local governments—nearly 90, such entities, depending on the method of counting 95 —by the variety of local agencies, and it is unsurprising that there has been so little systematic empirical engagement with local administration. What Max Pock lamented fifty years ago sadly remains true today: This Part thus begins with a discussion of the regulatory domains of local administration and the institutional forms through which that administration occurs. It then turns to the varied governmental-structural contexts in which local agencies operate.
Finally, it outlines aspects of the fine-grained texture of local agency practice.
The Breadth of Local Agency Action One significant reason for the invisibility of local administration may be a long-standing tendency to discount the actual breadth of local regulatory authority and activity.
Rules in nearly every local jurisdiction set the acceptable terms not only of use—residential, commercial, industrial, and the like—but also of building height, setbacks, materials, fire protection, energy use, waste treatment, and myriad other minutiae. This may not involve formal rulemaking, but generally does reflect the exercise of delegated legislative authority with a great deal of discretion in individual instances.
Local governments have long been involved in regulating aspects of the local economy, although they have faced significant constraints in that exercise given the mobile nature of capital. The provision of public benefits is another important area of local administration.
As with the federal Social Security Administration, a perennial mainstay of administrative law scholarship, local departments handle a wide variety of benefits, including welfare, job training, and housing. As increasingly significant as local regulation may be, the provision of public services has historically been central to local-government identity, more so than at other levels of government. The Ubiquity and Variety of Local Agencies If the domains of local administration are broad, so too are the institutional forms through which that administration occurs.
It is true that there are relatively large federal bureaucracies and some quite small ones, and much other variation in institutional details, but certain basic agency forms cover most of the administrative law ground at that level. The local level, however, yields quite a menagerie of departments, boards, bureaus, commissions, and other institutions.
Some of these local agencies are highly professional, with significant staff and recognizable, politically accountable administrators. Some, however, can resemble community meetings as much as they do public agencies, with the locus of gravity on locally appointed citizens or residents fulfilling a civic duty, but not otherwise formalized in any systematic, Weberian bureaucratic sense.
To peruse the website of almost any local government, large or small, is to encounter this array of internal departments, partially independent bodies, and largely citizen-staffed commissions.
The Structural Context of Local Administration If local administration covers a broad range of policy arenas and institutional forms, a second salient dimension to local administration is that these agencies operate within local-government structures that are distinct not only from their federal government counterpart but also from state government structures.
Here as well, it is hard to generalize, as there is tremendous institutional diversity at the local level, and local structures can vary dramatically from each other. Indeed, government structure gets more complex and divergent the lower one goes on the putative federalist hierarchy.
Local governments are not the smallest matryoshka doll nestled within increasingly larger state and federal counterparts, with the classic tripartite structure repeated in miniature.
Instead, local governments tend to subdivide or combine functions in many ways. Relevant local structural distinctions can be cataloged along three dimensions. The first two parallel the traditional domain of local-government scholarship: The third dimension is less explored in the literature, yet is arguably most important for local administrative law: Some states provide more power to larger localities, for example, than to the smaller ones.
Moreover, the types of powers that states grant to local bodies varies among states and within states, as does the degree of independence granted to local bodies to be free from state interference. As Paul Diller has noted in the context of public health, some local agencies are responsible to multiple principals, primarily their local government of general jurisdiction and the state.
To give a concrete example, consider the nature of public housing authorities PHAsentities that provide public housing and administer other housing subsidies, such as housing vouchers.
Department of Housing and Urban Development. Despite this federal and state involvement, PHAs are typically constituted within a specific local service area and have formal and informal and, at times, quite fraught relations with their local governments of general jurisdiction. Many other local agencies present similar vertical authority variations. Emerging from this, then, is an overall picture of authority informed by federalism and state oversight but with a certain amount of space for local autonomy and independence for particular agencies.
Local Fragmentation Turning to the horizontal plane, local governments are not only numerically vast, but also tremendously varied, divided broadly between local governments of general jurisdiction and specialized local governments. For example, a transit agency or a water district can encompass several cities.
Horizontal fragmentation tends to generate local intergovernmental competition as well as the opportunity for cooperation. Local governments paradigmatically compete on the interlocal level, for mobile residents in the classic Tieboutian sense, but also for mobile capital, and, in contemporary conflicts over economic development, for the amenities that will attract particular types of industries and workers, like the technology sector.
These dynamics of local fragmentation and mismatching governance scale can generate regulatory gaps as well as administrative overlap. Structure Within Local Governments A third dimension, most important to the project of understanding the nature of local administration, is the tremendous internal institutional variation within local governments. To begin, separation of powers among the executive and legislative branches can be lessened, different, or entirely absent in local government s.
Even for local governments with a recognizable chief executive, whether mayoral or otherwise, many such chief executives have quite limited, or even no, formal appointment and removal power over the heads of administrative agencies.
Likewise, when agencies act contrary to their delegated authority, the machinery of local legislation can react much more quickly than that at the federal level could. Niels Ejersbo and James Svara have usefully mapped the relationship between local administrators and local political structures, connecting the main forms of local government—such as strong mayor and council-manager—to different types of local bureaucracies. The Granular Texture of Local Agency Action Finally, moving from the regulatory arena and structural context to operational details of administration, what might be particularly distinctive about how local agencies act on a day-to-day basis, compared to the federal paradigm?
Two elements seem particularly salient in distinguishing local administration: Formality and Informality in Local Agency Action In terms of how local agencies operate, it is clear that there is a tremendous range of formality and informality.
As a legal matter, the latitude granted to local agencies to design and institute their own procedures varies widely. Scholars have long explored the variance between the federal APA—the statute that sets the basic parameters of federal administrative action, however broadly —and the myriad state APAs.
Administrative Law - Definition, Examples, Cases, Processes
In nearly half the states, local agencies do not fall within the ambit of the relevant state APA. Given the frequent lack of clear structural requirements akin to an overarching APA framework—at least for some local agencies—and the significant discretion possessed by so many front-line agents, procedural due process has been a particular legal concern in local administration.
This has been especially but by no means only true in the context of administrative adjudication, but is an issue in individualized determinations more broadly. Kelly, involved the procedures for distributing welfare promulgated by the New York City Department of Social Services.
This lack of clarity is not unique to local administration by any means, but resonant at that level nonetheless. The Local Permeability of Public and Private A second distinction for local administration is the relative permeability of the line between public and private in the work of many agencies.
This permeability echoes, at a micro-institutional level, tension over the question whether local government as a whole should be considered purely public or should continue to reflect aspects of the private corporation that was the predecessor of many types of local governments.
To begin, the contracting out of services has long been a controversial but common feature of local-government operation. These can include, for example, enforcement in areas such as tax arrears and child support, as well as the development of regulations, as is common in some areas of land use, even if those regulations are subsequently publicly adopted.
Yale Law Journal - Localist Administrative Law
For example, many local commissioners or board members are local residents who act as part-time appointees. And administrative processes at the local level at times formally require consultation with or involvement by neighborhood-level committees or boards. This is not to argue that local bureaucracies are inherently responsive to local concerns. But, as a structural matter, the interface between public and private in local administration can be decidedly porous.
Local agencies exist in a variety of governmental-structural contexts that can vary significantly from the federal paradigm.
Likewise, the relative informality of many local agencies can be troubling by creating space for inequity without a baseline or firm standard, as well as by risking divergence in the exercise of discretion. However, this informality can also hold benefits for local residents by fostering more direct input into administration. All of this must be accounted for both in administrative jurisprudence and in the scholarly discourse, to which we turn in the next two parts.
Accordingly, this Part homes in on a jurisprudential framework for judicial review of local agency action, although the insights are relevant to the more general corpus of administrative law.
It would likewise seek to bolster procedural regularity where appropriate, but recognize that informality may have a place to play in local administration. Marvin Horne, a California raisin grower, did not agree with giving his raisins to the committee. In order to get around the fact that the Committee collects their raisin quota from distributors, rather than from the farmers, Horne restructured his farming operations to act as both grower and distributor.
He then claimed that the reserve requirements set by law did not apply to him. Horne responded by filing a federal lawsuit against the Commission, claiming that the raisin reserve violated the Takings Clause of the Fifth Amendment to the U.
Horne took his case to the U. Supreme Court, which ruled that the Circuit Court did have authority to hear the case, and sent it back. The Circuit Court ruled that personal property, such as raisins, did not enjoy the same level of protection under the Fifth Amendment as real propertysuch as the land on which the raisins were planted. Horne again appealed the decision to the Supreme Court.
As a result of the ruling, Horne was due just compensation for his raisins, which is the market value of the raisins at the time they were, or would have been, seized. In this case, the Committee had already determined the value of the raisins when it fined Horne. Related Legal Terms and Issues Appellate Court — A court having jurisdiction to review decisions of a trial-level or other lower court. Authority — The right or power to make decisions, to give orders, or to control something or someone.
Clause — A section of a legal document that relates to a particular point or issue.