Celebrating 10 years! 2007-2017

Priority of laws

What is the principle that statutory law and case law take p tom_foolery10/16/17
Due Process prosedave10/31/17
I could be way off, but my recollection was that regulations jd4hire10/16/17
Statutes are enacted by the legislative branch. Regulations jeffm10/16/17
[deleted] anonattempt11/07/17
When it comes to statutory law, you could just call it "pree therewillbeblood10/16/17
Rules are made to implement a statute. They both have the sa downwardslope10/16/17
I always thought administrative code is the weakest form of isthisit10/16/17
If the case law was prior to the rule, then you disregard. I downwardslope10/16/17
Yup. If both the old case and the new rule are "permissible onehell10/16/17
I have seen recommended orders from ALJs saying “why bother, downwardslope10/16/17
Yeah that's pretty much what I experienced. In my case the A onehell10/16/17
Incredibly, opposing counsel in one of my cases argued (with harrysach11/08/17
1) Constitution (primacy) 2) Statutes (rules drafted by leg dingbat10/16/17
Whatever the gmoat says it is, or it's fake news!!!! Maga!!! esquire13811/05/17
No "principle" really comes to mind... To echo Jeffm: Sta anonattempt11/07/17
Generally I've found it's Local practice Rules Code attorneydavid11/08/17
tom_foolery (Oct 16, 2017 - 2:30 am)

What is the principle that statutory law and case law take precedence over administrative regulations? I can't remember.

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prosedave (Oct 31, 2017 - 1:44 pm)

Due Process

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jd4hire (Oct 16, 2017 - 8:58 am)

I could be way off, but my recollection was that regulations carry the full force of law, unless there is conflict. Don't know the principle which establishes hierarchy once conflict exists.

In my jurisdiction, we have a codified canon of construction that the more specific takes precedence over a general statute (applicable to two statutes, not statute v. case law).

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jeffm (Oct 16, 2017 - 9:04 am)

Statutes are enacted by the legislative branch. Regulations are enacted by the executive branch pursuant to statutory authority. They are not supposed to vary from the statutes. They are supposed to supplement them.

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anonattempt (Nov 7, 2017 - 4:37 pm)

[deleted]

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therewillbeblood (Oct 16, 2017 - 10:17 am)

When it comes to statutory law, you could just call it "preemption," not sure if there's a specific term since it's just never been really contested. There's Chevron deference which sets the extent to which administrators can interpret ambiguous statutes, but that analysis always assumes that statute governs and the regulation must conform. There's just also the supremacy clause and the powers set forth in Article III of the U.S. Constitution, and similar clauses in state constitutions who just determine who sets the laws.

Common law is a bit more complicated. State codes tend to incorporate the common law before a certain date as statutory law. But I would guess that a regulation inconsistent with pure common law made after that date would control. As far as I know (and if anyone knows differently, let me know because I am curious), there's no similar common law codification in the US Code, so regulations should control. However, since there is so little Federal common law it probably never really comes up.

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downwardslope (Oct 16, 2017 - 10:47 am)

Rules are made to implement a statute. They both have the same effect. Once a rule is promulgated, it takes effect unless there is some agreement by the enforcing agency that the rule won’t take effect for some time. Sometimes there is a lapse between the promulgation date and the date something takes effect since it can take time for businesses to do what they need to do to comply.

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isthisit (Oct 16, 2017 - 4:06 pm)

I always thought administrative code is the weakest form of law.

Statutes prevail, case law interprets, and admin code dictates.

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downwardslope (Oct 16, 2017 - 4:35 pm)

If the case law was prior to the rule, then you disregard. It is weak, but you can’t use a 1972 case to interpret a 1997 rule.

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onehell (Oct 16, 2017 - 6:47 pm)

Yup. If both the old case and the new rule are "permissible constructions" of a statute, then the agency interpretation is entitled to deference.

So in a way, a regulation can overrule caselaw. An agency director can also, without a hearing or really any process at all, overrule the decision of an administrative judge (this has happened in a couple of cases of mine) and the court will give deference not to the administrative judge (whose decision is technically a "recommendation" to the agency) but to the agency director that issued "final agency action."

Administrative law is far from the "weakest form of law." On the contrary, the APA and caselaw like Chevron have transferred massive amounts of interpretive power from the courts to the executive branch, and allowed the executive branch to hire a bunch of ALJs to run kangaroo courts whose rulings can and will be disregarded if the agency doesn't like them, and where the ALJ is an at-will employee of the agency whose decisions he or she is reviewing. And the courts have gone along with it. I think that's in large part because "deferring" to agency "experts" reduces the workload of the courts.

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downwardslope (Oct 16, 2017 - 7:20 pm)

I have seen recommended orders from ALJs saying “why bother, the agency has authority on this anyway. I can recommed something, but there is no point since they can just issue a final order overruling me anyway.”

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onehell (Oct 16, 2017 - 8:21 pm)

Yeah that's pretty much what I experienced. In my case the ALJ gave me the favorable decision knowing she would get overruled, but she knew I was going to go for judicial review so she figured having her decision in my favor on the record might help me anyway.

Once in real court, the judge visibly expressed, in open court and on the record, her frustration with the agency's decision to overrule its own provider of impartiality, but nonetheless held that deference tied her hands.

The ALJ who had sided with me was a little bit on the younger side. I imagine the compassion that motivated her probably gets beaten out of a lot of ALJs after awhile, which is sad.

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harrysach (Nov 8, 2017 - 2:39 pm)

Incredibly, opposing counsel in one of my cases argued (without citing any authority) that the terms of a contract that conflict with express statutory requirements control.

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dingbat (Oct 16, 2017 - 4:32 pm)

1) Constitution (primacy)
2) Statutes (rules drafted by legislature)
3) Case law (judicial interpretation of statutes)
4) Regulations (Agency's guess as to what the law is)

Basically, if there's an issue with a regulation (4) it is up to the courts to interpret (3) what the statute (2) says - provided that nothing violates the constitution (1)

Fairly straightforward

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esquire138 (Nov 5, 2017 - 10:48 am)

Whatever the gmoat says it is, or it's fake news!!!! Maga!!!!

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anonattempt (Nov 7, 2017 - 4:40 pm)

No "principle" really comes to mind...

To echo Jeffm: Statutes are enacted by the legislative branch. Regulations are issued by the executive branch pursuant to statutory authority. Regulation cannot contradict clear statutory language, and regulations are not valid unless issued pursuant to statutory authority.

Or from another perspective, all legislative powers are vested in the legislature (U.S. Cont. Art. I) and the Executive is tasked with taking care that the laws are faithfully executed (U.S. Const. Art. II). Sometimes the Executive issues regulations in order to faithfully execute the laws. The judicial power, of course, is vested in the courts. The courts therefore have the fun job of figuring out how to make sure the legislature is following Article I and that the Executive is following Article II, and that none of the inverse is occurring.

So regulations can never contradict the clear meaning of a statute, and agencies cannot "supplement" statutory law unless Congress has granted the agency the rule-making authority to do so.

Sometimes statutes will directly command the agency to issue a regulation. However, most federal agencies have some degree of general rule-making authority, and may attempt to rely on such authority to issue regulations related to a particular statute even if that particular statute does not direct the agency to issue a regulation.

Agencies ostensibly issue regulations for a variety of reasons, including interpreting an ambiguity in a statute, establishing rules to enforce the statute, filling a gap in the statute, and achieving a policy aim that it has general rule-making authority to address.

In civil cases in which an agency administers the statute and has issued a regulation implementing or related to the statute, for the most part the Chevron doctrine comes into play. The Chevron doctrine provides that if the statute is ambiguous with respect to the question at issue, then the court will defer to the agency's interpretation in its regulation as long as the agency's interpretation is a permissible construction (for the most part that means " a reasonable interpretation") of the statute; but if the statute is clear with respect to the question at issue, then the statute controls on that issue and overrules the regulation on that issue.

It can get pretty complicated, but that's the basic idea... Also, it's somewhat different at the state level (e.g., the Chevron doctrine does not apply, although many state judiciaries have followed suit).

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attorneydavid (Nov 8, 2017 - 6:07 pm)

Generally I've found it's

Local practice
Rules
Code
Constitution.

At least in memphis

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