By Dan Cordova and Chris Hudson
All Americans are familiar with administrative law, whether they realize it or not. Agencies and their rulemaking and adjudication functions have formed an intrinsic part of our society since our nation’s founding. The first federal agency was created by the First United States Congress in 1789 to collect import duties from ships and vessels (Act of July 31, 1789, 1 Stat. 29). Originally administered under the Secretary of the Treasury, it is now part of U.S. Customs and Border Protection, a component of the Department of Homeland Security.
Administrative law is important because of its far-reaching impact on our daily lives. In addition to the hundreds of federal agencies, there are thousands more at the state and local government levels. The purpose of administrative law is to implement and help enforce the general requirements of both civil and criminal law. The process results in detailed regulations that apply to a surprisingly large number of activities and enterprises. Consequently, lawyers should know how to research and navigate this important body of law as effectively as possible. Success requires an understanding of the law and the context in which it develops.
Civics — specifically the structure and operations of our three branches of government — forms the basis of this understanding. Knowing what each branch does, how it works interdependently with the others and where it publishes its work are fundamental to good legal research. This is especially true in administrative scenarios because the legal authority underlying an agency’s actions is always central to the research equation. Important considerations include the source of the administrative power, its scope, how it is delegated and the existence, if any, of discretion. It is also possible for legislative enactments and executive orders to amend or modify an agency’s legal authority and/or the way its power is applied in specific situations. It is therefore very important that the researcher is aware of pre- and post-promulgation processes that may affect the agency or rule in question.
The primary elements of administrative law involve fundamental constitutional principles. Separation of powers, preemption and judicial review are of particular importance. The various and varying administrative procedures and practices that exist among the many agencies also implicate a number of other legal issues, including jurisdiction, strict filing requirements and finality. For the practitioner, understanding and carefully following administrative procedures are critical for successful practice in this field.
In addition to being aware of the differences in administrative law practices across agencies, it is also important to know that there is more than one rulemaking process: There are formal and informal processes. The formal process involves a proceeding where evidence is provided and a formal record is kept. It is, by far, the least common of the two processes. The more common approach to rulemaking employs notice and public comment. The federal system refers to it as informal rulemaking, or “notice-and-comment rulemaking.” In Colorado, the informal process is called “permanent rulemaking.” Permanent rulemaking usually includes public notice and comment. However, under limited circumstances an agency may adopt a temporary or emergency rule without publishing a notice.
According to the Social Science Research Network, 65% of the population could be categorized as visual learners. Infographics, flowcharts and other forms of visual communication are important tools for many people in synthesizing information. (See onforb.es/1T0S6yV.) Some helpful visuals depicting the federal and state regulatory processes are noted below. In addition to supplying a FAQ list and a sketch of the process, the Colorado Secretary of State also provides a number of calculators and flowcharts designed to assist the practitioner.
Administrative law is directly related to legislative enactments. The Administrative Procedure Act (APA) is the original enabling act for all administrative law. It establishes the regulatory system and sets forth the requirements promulgating executive agencies must follow in order to adopt rules properly. Subsequent legislative acts governing a particular agency, program or law delineate specific authority and responsibilities. Sometimes these enactments are referred to as organic acts.
The power to make laws is a power exercised by the legislative branch. Since the legislature cannot always provide for every detail of a law or anticipate issues that may arise during its implementation, it may delegate its powers to executive agencies by allowing them to adopt rules. These grants of rulemaking authority may be either very specific or very broad. Executive agencies implement and enforce the legislation in accordance with the statutory authority and through rulemaking. The agencies are managed by subject-area experts who are often given investigative and judicial authority. Judicial Branch review exists to clarify conflicts and resolve legal issues.
In Colorado, the steps involved in the permanent rulemaking process are:
*Notice of rulemaking is filed with the Secretary of State and published in the Colorado Register.
*Notice is also filed with the Department of Regulatory Agencies (DORA), which acts on requests for cost-benefit analyses.
*Public comment is taken at public hearings.
*Adopted rules are sent to the Attorney General for review of constitutionality.
*Adopted rules are also sent to the Office of Legislative Legal Services (OLLS) for review of legal compliance.
*Adopted rules are submitted to the Secretary of State for publication in the Colorado Code of Regulations (CCR).
Adopted rules are binding until, or unless, they are found unconstitutional or in excess of legal authority, or they are amended or rescinded by the promulgating agency. New regulations are assigned numerical designations according to a hierarchical arrangement that begins with the department and cascades down to divisions and individual work units. A subject index is produced to facilitate research navigation, and source notes trace the historical development of each regulation. Strangely, there is not a standard numbering system for individual rules in the CCR; each agency creates its own internal numbering system.
Colorado’s official administrative rules and regulations are published online by the Colorado Secretary of State. This is in compliance with the Uniform Electronic Material Act (UELMA) and is a useful benefit to lawyers and citizens alike. The Secretary of State’s official online database includes historical regulations dating back to 2007. LexisNexis publishes an unofficial print version of the CCR in loose-leaf binder form. Regulatory history can be traced back to 1977 using these binders. A 1967 set of administrative law also exists, and both are available at the Colorado Supreme Court Library.
Fluency in all of the above is helpful when embarking on an administrative law project, especially given the following:
*There is limited information about how state processes vary from federal ones. (See the selective bibliography below for sources of additional information.)
*There is a lack of state government organizational charts, which are now decentralized online — if they even exist. (See the Index to CRS for laws applicable to specific agencies and actions.)
*There is a lack of finding aids for administrative decisions. (Rulemaking experts are indispensable in these situations and can save you a considerable amount of time.)
Sources of Information:
Colorado Secretary of State, Rules and Notices of Rulemaking: http://www.sos.state.co.us/pubs/rule_making/rules.html
Office of Administrative Courts: https://www.colorado.gov/oac
Office of Legislative Legal Services: http://tornado.state.co.us/gov_dir/leg_dir/olls/
Brackney, Charles P., “Administrative Rule Review: Procedures and Oversight by the Colorado General Assembly.” The Colorado Lawyer 33.6 (June 2004): 83-87. Print.
Gowen, Peter J., “Insights for Practicing Before Local Government Boards and Commissions in Colorado.” The Colorado Lawyer 36.11 (Nov. 2006): 53-58. Print.
Heupel, Kevin D., “Appealing An Administrative Order: The Exceptions Process.” The Colorado Lawyer 30.9 (Sept. 2001): 91-93. Print.
Pierce, Jr., Richard J. and Kristen E. Hickman, Administrative Law Treatise. 5th ed. New York: Wolters Kluwer Law & Business, 2010, 2015. Print.
The authors would like to thank David Gallivan, Regulatory Analyst at the Division of Workers Compensation, Jennifer Gilroy, Revisor of Statutes, and Deborah Haskins, Assistant Director of the Office of Legislative Legal Services for their assistance with this article.
Previously published in The Docket.