12 Finding and Using Administrative Law
Learning Goals
After reading this chapter, you will be able to
- Explain the relationship of administrative law to statutory law.
- Name examples of federal and state administrative agencies.
- Identify and explain administrative law sources.
- Find agency rules/regulations on free websites and commercial platforms.
- Find agency decisions and guidance on free websites and commercial platforms.
Most law students do not have much time or opportunity to research administrative law during first year legal research and writing courses. The first part of this chapter will explain how administrative law fits into the legal research landscape. The next part will discuss administrative law resources and where to find them.
What is Administrative Law?
Overview
Administrative law (both federal and state) is the law governing the creation and operation of administrative agencies. Most administrative agencies (including boards, commissions, and departments) are part of the executive branch of government. Legislatures establish agencies and give them their powers through enabling statutes. Some state agencies are established through the state constitution. Thorough and accurate legal research requires you to find, read, and analyze administrative rules and decisions because they are primary sources of law, just like statutes and cases.
Sources of Administrative Law
Agencies promulgate rules (also called regulations) that administer, implement, apply, and interpret statutes in the agencies’ jurisdiction. Agencies also conduct investigations and inspections to determine if regulations are being followed, and issue licenses and permits. Also, agencies, via administrative law judges, hold hearings and decide cases involving the agencies’ rules. Therefore, when you are searching for relevant administrative law, you will be looking for enabling legislation, agency rules/regulations, agency guidance like interpretive opinions or procedural manuals, administrative decisions, and possibly federal court decisions reviewing agency actions or decisions.
Examples of Administrative Agencies
Federal
Some examples of federal administrative agencies:
- Department of Agriculture
- Civil Rights Commission
- Commerce Department, includes several divisions such as the Census Bureau and the Patent and Trademark Office.
- Consumer Product Safety Commission
- Department of Defense
- Department of Education
- Department of Energy
- Environmental Protection Agency
- Equal Employment Opportunity Commission
- Federal Communications Commission
- Government Publishing Office
- Department of Health and Human Services, includes several divisions such as the Centers for Disease Control and Prevention, Food and Drug Administration, Indian Health Service, National Institutes of Health, and the Refugee Resettlement Office.
- Department of Homeland Security, includes divisions such as Federal Emergency Management Agency, Secret Service, Transportation Security Administration, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.
- Department of Housing and Urban Development
- Interior Department, includes divisions such as Fish and Wildlife Service, Bureau of Indian Affairs, National Indian Gaming Commission, and National Park Service.
- International Trade Commission
- Department of Justice, including divisions such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration, Federal Bureau of Investigation, Parole Commission, and the Bureau of Prisons.
- Department of Labor
- Library of Congress
- National Aeronautics and Space Administration
- National Archives and Records Administration, includes the Federal Register Office and Office of Government Information Services.
- Peace Corps
- Securities and Exchange Commission
- State Department
- The White House Office
- Department of Transportation
- Department of Treasury, includes divisions such as the Alcohol and Tobacco Tax and Trade Bureau, Engraving and Printing Bureau, Internal Revenue Service, and the United States Mint.
You can find a list of all federal administrative agencies on the Federal Register website. As you can see from this sampling, administrative rules touch every part of our lives.
State (Oregon)
Below is a sampling of state agencies in Oregon. You can find a full list of Oregon administrative agencies on the State of Oregon’s website.
- Oregon Department of Agriculture
- Board of Cosmetology
- Criminal Justice Commission
- Oregon Department of Education
- Employment Department
- Department of Energy
- Department of Environmental Quality
- Oregon Department of Forestry
- Oregon Department of Human Services
- Department of Justice
- Bureau of Labor and Industries
- Land Use Board of Appeals
- Oregon Liquor and Cannabis Commission
- Oregon Occupational Health and Safety Administration
- Office of Public Defense Services
- Public Utility Commission of Oregon
- Oregon Secretary of State
- Oregon Department of Veterans’ Affairs
You can find agencies for any state, usually by looking at the state website. For example, in California, the state website lists their administrative agencies. Similarly, the Washington state website has an agency directory page.
Where do you find Administrative Law?
Federal
Administrative Procedure Act
The Administrative Procedure Act (APA), Title 5 U.S.C. § 551 et seq., governs agencies’ rulemaking procedures, addresses agencies’ issuance of licenses and permits, and sets out standards for judicial review of agency actions. The APA may be an important part of your research if the issue involves a challenge to the scope of the agency’s authority to take a specific action.
Enabling Statutes
An enabling statute establishes the powers and responsibilities of a government agency. For example, Congress established the United States Patent and Trademark Office (USPTO) by passing Title 35 U.S.C. § 1.pdf. Title 35 U.S.C. § 2 outlines the powers and duties of the agency and § 3 designates officers and employees of the agency. You find enabling statutes by searching the sections of a Title that governs your legal issue, or by using a table of contents for the United States Code.
Rules
Agencies issue rules just like legislatures pass statutes. However, rules are subordinate to statutes in that they implement, interpret, and prescribe the statutory law. Administrative agencies have more expertise than the legislature in the subject matter, so they are able to provide more details and set particular standards for implementation of a more general statutory law. An agency rule is defined as
“the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.”
5 U.S.C. § 551(4).
A Proposed Rule (Notice of Proposed Rulemaking) is published in the Federal Register for public comment. Citations to proposed rules will have a Federal Register citation such as, 88 FR 33968. After the comment period, the agency will finalize the rule and then publish the final rule in the Federal Register, with an effective date and notice of the changes that the new rule makes to the Code of Federal Regulations. The new rule is then integrated into the e-CFR, which is an unofficial but authoritative compilation published by the Office of the Federal Register and the Government Printing Office. The official edition of the CFR is published annually; each of the 50 subject matter titles are re-published each year on a staggered, quarterly basis. Once a final rule is codified into the CFR, it will have a citation such as 10 CFR 431.
For more detailed information on rulemaking, please consult A Guide to the Rulemaking Process.pdf, prepared by the Office of the Federal Register.
In addition to using government databases such as the Government Printing Office (govinfo.gov), federalregister.gov, e-CFR, and agency websites, you can find federal regulations, both the Federal Register and the Code of Federal Regulations, on Westlaw, Lexis, and Bloomberg.
Agency Decisions
Pursuant to the APA, agencies have some quasi-judicial powers to adjudicate matters having to do with enforcement of their rules. For example, the United States Patent and Trademark Office uses its Trademark Trial and Appeal Board (TTAB) to handle appeals involving applications to register trademarks, appeals from expungement proceedings involving registrations of trademarks, and trials involving applications or registrations of trademarks. You can find TTAB decisions on the USPTO website.
You can find some agency decisions on Westlaw, Lexis, and Bloomberg as well.
On Westlaw, navigate to federal materials, then select the Federal Administrative Decisions & Guidance link. Westlaw provides access to some, but not all decisions from executive branch or independent agencies and offices.
On Lexis, choose the “federal” tab, then select federal administrative materials. Lexis provides access to various types of administrative information such as decisions, directives, memoranda, papers, and news releases for executive branch and independent agencies.
Bloomberg has multiple access points for U.S. government agency information. For example, you can look at All Legal Content or search in topical practice centers.
Agency Guidance
In addition to rules and formal adjudications, agencies also produce guidance documents in the form of procedural manuals, advisory opinions and notices, handbooks, etc. These types of guidance documents are most likely found on agency websites. For example, the USPTO website provides a link to guidance documents under the “Learning and Resources” tab.
As discussed above, the commercial platforms provide variable access to agency guidance documents for several agencies.
Court Decisions Reviewing Agency Actions
To find court decisions reviewing agency decisions or other actions, you will use the case finding strategies and tools discussed in Chapter 11.
Practice Example:
In this example, you will search the Alcohol and Tobacco Tax and Trade Bureau website for administrative information on beer brewing.
The following video will demonstrate searching the Alcohol and Tobacco Tax and Trade Bureau website for relevant primary and secondary sources.
State (Oregon example)
Researching state administrative law is similar to researching federal administrative law. You may want to look for the state’s Administrative Procedure Act, as well as the enabling legislation for the agency involved in your legal problem if the agency’s authority is in question. The main sources of state administrative law are rules, agency decisions, and agency guidance. Each state maintains a government website providing access to administrative rules and other information. For example, California’s Office of Administrative Law website provides access to the California administrative rules, information on the rulemaking process, publications and forms, as well as an agency index. In Washington, the state legislature’s website links to the Washington Administrative Code and the State Register. In Oregon, the Secretary of State website links to the Oregon Administrative Rules and some historical administrative orders and rule compilations. In addition, state agencies host websites with useful information such as relevant rules, decisions, practical guidance, current awareness tools, and other resources. The following sections will highlight sources of administrative law from Oregon as an example.
Oregon Administrative Procedure Act
Oregon’s Administrative Procedure Act, ORS 183.310, defines powers, responsibilities, and procedures for state administrative agencies.
Enabling Statutes
When you are doing statutory research (see Chapter 10), you should look at surrounding sections to find laws giving powers and responsibilities to a particular agency. You should also use statutory annotations to find cases interpreting and applying those statutory sections. For example, if you were looking at the Oregon Revised Statutes for laws on alcohol, you would look in Chapter 471. In Chapter 471, you will find 471.705 et seq. which establishes the Oregon Liquor and Cannabis Commission and defines its regulatory powers and procedures.
Rules
Free Government Websites
The best method for accessing Oregon Administrative Rules is to use the Oregon Administrative Rules Database (OARD) on the Secretary of State’s website. The OARD is continuously updated as rules are approved and received. The database allows you to browse through current rules using chapter numbers, chapter names, rule numbers, or rule text. You can also use the OARD to access the Oregon Bulletin, a monthly online publication containing Notices of Proposed Rulemaking, Permanent and Temporary Administrative Rule filings, rule text, and Minor Correction filings, as well as Annual Compilations of rules.
For example, you may be looking for rules from the Oregon Liquor and Cannabis Commission (OLCC). First, go to the Secretary of State website and link to the OARD. If you do not have a rule number citation, you can browse by Chapter name to find the Oregon Liquor and Cannabis Commission, Chapter 845. If you are looking for a rule addressing a specific issue, you might choose to search by text of the rule. If you are wondering whether a brewer can brew beer using cannabis, for example, you might conduct a search using the terms cannabis and beer.
Depending on when the rule was last updated, you would look at the Oregon Bulletin to see if there are any proposed new rules or corrections. For example, if the rule you found was last updated in February 2023, you would look at the Bulletins for March, April, and May 2023 for any changes or corrections to make sure you are looking at the most recent rule language.
Commercial Databases
Westlaw, Lexis, and Bloomberg provide access to state administrative information.
Westlaw has databases containing Oregon Regulations as well as Administrative Decisions and Guidance. The decisions and guidance database covers a limited number of agencies: Attorney General Opinions, Bureau of Labor & Industries Decisions, Division of Financial Regulation Decisions, Employment Relations Board Decisions, Environmental Administrative Decisions, Insurance Bulletins, Land Use Board of Appeals Decisions, Legal Ethics Opinions, Public Utility Commission Decisions, and Workers Compensation Administrative Decisions.
On Lexis, you can access Oregon Administrative Codes and Regulations, the Oregon Bulletin, as well as select Oregon administrative materials such as decisions and guidance: Oregon Insurance Bulletin & Notices, Attorney General Opinions, Department of Commerce, Corporate Division Materials, Department of Environmental Quality, Government Ethics Commission Final Dispositions, Public Utility Commission Decisions, Workers’ Compensation Decisions, Bureau of Labor and Industries, Employment Relations Board Decisions, Market Conduct Examinations, and Land Use Board of Appeals.
Bloomberg has databases of state codified regulations as well as proposed rules.
Agency Decisions and Guidance
As explained above, Westlaw and Lexis allow you to access select agency decisions and guidance. However, you can find an abundance of helpful information including decisions and guidance, reports, forms, publications, news, licensing and permitting information, etc. on agency websites. For example, the OLCC website provides extensive information on Alcohol Licensing and Permits with links to applications, forms, educational resources, rules, and compliance materials.
Practice Example:
In this example, you will practice searching the Oregon Liquor and Cannabis Commission (OLCC) website for primary law and other information on beer brewing.
The following video will demonstrate finding sources on the OLCC website.
suggested activity
Students can select an area of interest and find federal and/or state administrative agencies that regulate that area of interest. Student should explore the website to find secondary and primary sources. Suggested topics of interest: offshore wind energy, state literacy initiatives, indigenous tribal claims to Colorado River water, electric vehicle tax incentives. This activity can be done as a short in-class exercise so students learn ways to navigate agency websites.
Student added discussion and reflection questions
- What types of administrative law research have you done in the past?
Contribute a discussion or reflection question to this section.