Administrative law rises from the rule-making authority delegated to the executive branch or to independent government agencies through Congress or the Constitution. Agencies that have been granted regulatory authority, which would include the Environmental Protection Agency, the Department of Labor, and the Department of Health and Human Services, are allowed to create rules that have the force of law within their domain, and adjudicate disputes when those rules are broken.
For example, this would mean that the EPA would be responsible for establishing and enforcing rules designed to ensure clean air and water… the DOL sets rules governing worker safety and enforces fair labor practices… and the HHS creates and enforces the rules that govern eligibility for social assistance.
The size and depth of these federal agencies, as well as the various state-level agencies, has created a parallel legal system that is almost certainly larger than the criminal justice system. So it’s inevitable that many paralegals spend their careers dealing almost entirely with administrative law.
Administrative law is not a legal practice area in and of itself, however. Paralegals that deal with administrative law generally do so by working within one of the various specialized roles where it features prominently.
Common venues of administrative law include:
- Immigration courts
- Patent and Trademark Trial and Appeal Boards
- Tax Court and bankruptcy courts
- Boards of contract appeals
- Court of Federal Claims
Administrative law can be difficult to define precisely and courts continue to grapple with their own responsibility to sit in judgment on regulatory decisions. This means that paralegals have to keep up with cases even in general jurisdiction courts to stay current with administrative law.
Even on its own, administrative law can be a lot to keep up with. The Congressional Research Services estimates that between 2,500 and 4,000 new rules are passed each year. These can cover matters large and small, everything from how major corporations report multi-billion dollar financial transactions to how you fill out your 1040 form.
Administrative Law Codifies The Mechanics of Society
A decision made in an administrative court may always be appealed to a regular district court. This means that there is a check and balance system in place to make sure that government agencies establish rules that are in line with other laws and the individual rights of people. But in most cases an appeal hearing would only be held to determine whether or not the administrative process itself was fair, not whether or not the actual decision the administrative court made was just.
The Administrative Procedure Act of 1946 is the current guiding document governing the process and scope of rule making at the federal level. This law provides the blanket authorization and guidance that is used to establish federal rules and regulations in administrative law courts.
The APA only governs federal agencies but a similar document, the Model State Administrative Procedure Act, has been drafted to provide general guidance to states for crafting their own administrative law rules. As of 2017, it has been adopted by 10 states and Washington D.C.
The APA has four major strictures that paralegals have to be familiar with:
- It requires agencies to keep the public informed of their organization, procedures and rules.
- Agencies must allow for public participation in the rulemaking process.
- It establishes uniform standards for the conduct of formal rulemaking and adjudication.
- The document defines the scope of judicial review of administrative law.
Paralegals working for the federal and state government agencies that establish these rules have to abide by the APA requirements. Paralegals who work outside those agencies and assist clients in dealing with those rules can use their knowledge of APA requirements as a basis to challenge rules or processes that do not comply.
For Paralegals, Administrative Law Opens The Door To New Challenges
For paralegals, administrative law presents a golden opportunity: most administrative law courts allow non-lawyers to represent clients. It is an opportunity to effectively (if not technically) practice law without being a member of the bar.
This means that paralegals working in administrative law venues not only have the traditional job roles of paralegals everywhere, but also take on the roles that lawyers usually fill. This can include:
- Providing advice about administrative law matters
- Representing clients before administrative law courts
- Communicating with other parties to the case
Acceptance of paralegals as official representatives is not automatic, however. Some administrative law courts still require lawyers to act as representatives; others may allow non-lawyers, but require that they take special classes and obtain certification before appearing. The U.S. Patent Office’s Patent Trial and Appeal Board, for example, requires practitioners to sit for an examination to become certified, and the Board of Immigration Appeals requires paralegals become accredited through a recognized organization before representing clients.
Many administrative law cases can be appealed upward to the United States Court of Appeals for the Federal Circuit, a specialized appellate court that hears cases on appeal from a number of administrative law tribunals, including:
- Patent Trial and Appeal Board
- Trademark Trial and Appeal Board
- Court of Appeals for Veterans Claims
- International Trade Commission
At this point, a paralegal can no longer act as a representative, since the matter has escalated into the realm of the regular justice system. However, a paralegal who had been involved with a case since it began in an administrative law court will almost certainly continue to act as a primary assistant to the attorney arguing before the appellate court.
Crafting Regulations and Enforcing Rules As A Government Paralegal
Paralegals also work on the agency side of administrative law, helping to craft the rules and regulations themselves as government employees. They have to comply with the APA rules and spend considerable time on activities that include:
- Researching existing rules and regulations.
- Studying the economic impacts of proposed regulations.
- Soliciting, recording, and summarizing public feedback on proposed rules.
- Determining the mechanics for enforcing rules.
- Publicizing and answering questions about the scope of the regulations.
They will also work with agency lawyers to investigate and provide oversight of agency rule-making and enforcement actions. They will fill a more typical paralegal role as assistants and organizers as they assist in defending the agency in court when those rules are challenged, or when violators are prosecuted.
Many paralegals in government agencies also work as assistants to the administrative law judges who hear such cases. They function as legal assistants, performing research and drafting court documents for the judge. They may also be responsible for communicating with parties on both sides of the case.
Becoming a Paralegal in Administrative Law
All paralegal degree and certificate programs will at least touch on administrative law studies, and some offer specializations in administrative law as a part of the program. These focus programs go into more depth on the APA, special challenges of representing clients in administrative law courts, and how to conduct legal research in administrative cases.
And options are available for more advanced learning and credentials for paralegals that choose to specialize in administrative law. NALS offers a Specialty Certificate Program in Administrative Law available to any paralegal that holds the NALS Professional Paralegal (PP) certification.
Most paralegals working in administrative law in certain legal roles will look for opportunities for additional study within those roles; for instance, an immigration law paralegal might look to attend the Basic Immigration Law Course offered by the Immigrant Legal Resource Center (ILRC). NALS PP certification holders could also participate in the Specialty Certificate Program in Immigration Law.