The NLRB's Adjudication-Rule Making Dilemma under the Administrative Procedure Act

What is undoubtedly the most thorough and comprehensive study ever made of Federal administrative procedure was completed with the submission to the Attorney General, in a letter dated January 22, 1941, of the final report of the Committee named. In its investigation and report, the Committee confined its attention to those Federal agencies that substantially affect private interests by their powers of rule-making and adjudication. To the study of their procedures, it assigned a staff of lawyer-investigators, which produced 27 mimeographed monographs, 13 of which have been printed as Sen. Doc. No. 186, 76th Cong., 3d Sess. In its interim report of January 31, 1940, the Committee thus described the methods being employed in the preparation of these monographic studies: “They have involved extended interviews with officials and employees of the agencies involved, with members of the public affected, and with attorneys who have represented clients before these agencies. Members of the Committee's staff have attended numerous hearings and other administrative proceedings as observers, and have closely examined the files of the agencies to discover the methods utilized in disposing of matters arising under the various statutes and regulations. Upon the completion of these investigations, the staff has prepared for the study of the Committee a preliminary report upon each agency, discussing in detail its administrative procedures. The report has been given to the officers of the affected agency for their consideration and comment. Thereafter, the full Committee has met with the agency's officers to discuss with them the facts and problems disclosed by the report.” (Final Report, pp. 254–255). The Committee held public hearings in June and July, 1940. In Chapter IX of its final report, it presents recommendations concerning a number of the individual agencies studied; and in Appendices B through M, it summarizes data collected on significant topics.

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THE STRUGGLE OF WORLDVIEWS IN THE FORMULATION OF LEGAL NORMS ON MEASURES OF ADMINISTRATIVE AND PROCEDURAL ENFORCEMENT

Constitutional State ◽

10.18524/2411-2054.2021.43.240952 ◽

2021 ◽

pp. 35-41

Author(s):

O. I. Mykolenko ◽

О. M. Mykolenko

Keyword(s):

Administrative Law ◽

Legal Norms ◽

Administrative Procedure ◽

Procedural Law ◽

Court Proceedings ◽

Theory Of Law ◽

The One ◽

Scientific Worldview ◽

National Police ◽

Rule Making

The article reveals the main contradictions that arise between the scientific worldview and the worldview of the legislator on measures of administrative coercion. Emphasis is placed on the fact that in the development of regulations that contain administrative law, often ignore the achievements of the science of administrative law and process and use the achievements of related sciences, in particular, the theory of state and law, theory of public administration, theory of procedural law, etc. On the one side, this indicates the openness of knowledge of administrative law, because it uses the experience of other sciences, and, on the other – the chaos of scientific knowledge about administrative law phenomena, as well as the further process of unbalancing the existing doctrine of administrative law. On the example of the provisions of the Law of Ukraine “On the National Police” the inconsistency of the norms of the administrative legislation with the provisions of the doctrine of administrative law on measures of administrative coercion is revealed. Also, on the example of the provisions of the Code of Administrative Procedure of Ukraine, the influence on the process of formation of norms of administrative law on measures of administrative coercion of the provisions of the theory of civil procedural law is revealed. It is proved that the measures of procedural coercion are heterogeneous in terms of target orientation and consequences of application. Some of them are aimed at providing evidence in the case, some – to ensure court proceedings, and some of them – to punish the person who violated the requirements of procedural law. Instead, administrative procedural legislation, regulating measures of procedural coercion, ignores the theory of administrative law and process and borrows the experience of civil procedural and economic procedural regulation. It is emphasized that the unification of procedural legislation, which is taking place today in Ukraine, destroys the system of science of administrative law and process. It is concluded that the rules of administrative law, which enshrine measures of administrative coercion and measures of procedural coercion, indicate a significant gap between the theory of law and rule-making, which threatens the continued existence and development of the theory of administrative law and process.

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"Rule Making," "Adjudication" and Exemptions under the Administrative Procedure Act

University of Pennsylvania Law Review ◽

10.2307/3309484 ◽

1947 ◽

Vol 95 (5) ◽

pp. 621

Author(s):

Robert W. Ginnane

Keyword(s):

Administrative Procedure ◽

Rule Making

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Coronavirus Aid, Relief, and Economic Security for Whom? IRS Overreaches in Denying CARES Act Economic Impact Payments to Migrant Workers and Incarcerated Individuals

10.31228/osf.io/f56d4 ◽

2020 ◽

Author(s):

Justin Schwegel

Keyword(s):

Economic Impact ◽

Migrant Workers ◽

Economic Security ◽

Eligibility Criteria ◽

Administrative Procedure ◽

Information Center ◽

Resident Aliens ◽

Aid Relief ◽

Rule Making ◽

Tax Filing

Individuals who received advance refunds under the Coronavirus Aid, Relief, and Economic Security (CARES) Act met the eligibility criteria in their 2019 tax filings (or 2018 filings if they had not yet filed 2019 taxes). Advance refunds are treated as a refund of an overpayment of 2018 or 2019 taxes. Subsequent changes in tax filing status in 2020 do not retroactively make one ineligible for an advance refund. On May 6, the IRS issued guidance on its Economic Impact Payment Information Center website instructing incarcerated individuals and certain resident aliens that they should return the economic impact payments (also called advance refunds or stimulus payments) they received from the IRS. This guidance is not legally binding for two distinct reasons. First, it was issued without conforming to the procedural requirements of the Administrative Procedure Act. Second, the guidance exceeded the IRS’s rule-making authority because it contradicts unambiguous statutory language.

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A “Win-Win-Win” Scenario – Reaping the Benefits of an EU Law on Administrative Procedure

European Journal of Risk Regulation ◽

10.1017/s1867299x00003007 ◽

2014 ◽

Vol 5 (1) ◽

pp. 87-92

Author(s):

Richard Meads ◽

Lorenzo Allio

Keyword(s):

Eu Law ◽

Administrative Procedure ◽

General Law ◽

Evidence Quality ◽

Legislative Proposal ◽

Smart Regulation ◽

Public Record ◽

Rule Making ◽

Institutional Feature ◽

The Eu

A Law on Administrative Procedure (LAP) is an essential institutional feature of democratic and effective governments. It is a general law on executive law-making, setting out how laws and regulations should be made. The need for a LAP at EU-level is growing – to counter the EU's legitimacy deficit and to make the regulatory process more predictable and robust. At the same time, the EU regulatory “machine” faces new challenges and pressures, as it seeks to implement highly complex (risk management) regulation. Greater regulatory effectiveness depends on more transparency, evidence quality standards and participation. As such, an EU LAP appears to be the natural culmination of the EU Smart Regulation agenda. Since the European Parliament in 2013 called for the Commission to adopt a LAP-related legislative proposal, the debate has gained in visibility and political salience. This article makes the case for an EU LAP for the EU institutions, citizens and businesses – provided the Law enshrines the four key principles of good administration (transparency and consistency; public participation; public record; and accountability); it establishes clear and legally binding procedural standards; and it covers as a principle also rule-making and adjudication decisions by all EU institutions and bodies involved in the preparation, adoption, implementation and repeal of secondary legislation.

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Administrative Law: Discretion to Revoke and Suspend Licenses: Evasion of the Rule-Making Procedure of the Administrative Procedure Act

California Law Review ◽

10.2307/3478355 ◽

1960 ◽

Vol 48 (5) ◽

pp. 822

Author(s):

David M. Bridges

Keyword(s):

Administrative Law ◽

Administrative Procedure ◽

Rule Making

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The Normative Architecture of Progressive Democracy

The Public's Law ◽

10.1093/oso/9780190682873.003.0005 ◽

2019 ◽

pp. 149-184

Author(s):

Blake Emerson

Keyword(s):

Democratic Theory ◽

The United States ◽

Institutional History ◽

Administrative Procedure ◽

Administrative Action ◽

Ex Post ◽

Regulatory Law ◽

Progressive Democracy ◽

Administrative Legitimacy ◽

Rule Making

This chapter develops a normative model of Progressive democracy on the basis of the intellectual and institutional history presented in the previous chapters. The Progressive theory remedies deficiencies in existing arguments for administrative legitimacy—those based on efficiency, constitutional values, or republican political theory. Unlike these theories, Progressivism draws an intrinsic connection between the purpose and the structure of regulatory law. Its purpose is to promote individual freedom through law. The structure of regulatory law ensures that such norms arise from the people’s own self-understandings. Progressivism aligns with deliberative democratic theory, but focuses on ex post deliberation about the consequences of policies, rather than solely on ex ante justification. This democratic theory requires an iterative process where abstract norms are expressed in law and then specified in a participatory and rational administrative process. The United States has a thin version of such a process in the Administrative Procedure Act’s “notice-and-comment” rule-making provisions. But today this process is too technocratic and distorted in favor of well organized and powerful interests. Opportunities for inclusive and egalitarian participation must therefore be deepened. At the same time, administrators must understand that they have an official duty to further the equal freedom of the persons their decisions affect. Judicial review of administrative action impedes such a self-understanding because it focuses on technocratic and instrumental reasoning. At the same time, the increasing investment of power in the president threatens to undermine deliberation with arbitrary assertions of personal will.

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From meditation to action – a research agenda for studying informal global rule-making: remarks on ‘Cosmopolitanism, publicity, and the emergence of a “global administrative law”’

International Theory ◽

10.1017/s1752971920000639 ◽

2020 ◽

pp. 1-7

Author(s):

Oliver Westerwinter

Keyword(s):

Global Governance ◽

Comparative Research ◽

Research Agenda ◽

Institutional Design ◽

Administrative Law ◽

Democratic Legitimacy ◽

Institutional Architecture ◽

Global Law ◽

Rule Making ◽

Law Making

Abstract Friedrich Kratochwil engages critically with the emergence of a global administrative law and its consequences for the democratic legitimacy of global governance. While he makes important contributions to our understanding of global governance, he does not sufficiently discuss the differences in the institutional design of new forms of global law-making and their consequences for the effectiveness and legitimacy of global governance. I elaborate on these limitations and outline a comparative research agenda on the emergence, design, and effectiveness of the diverse arrangements that constitute the complex institutional architecture of contemporary global governance.

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