GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2020

Status

Accepted

Abstract

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that the Article III courts have held that such agency behavior is essentially unreviewable since the mid-twentieth century. It identifies the historical guideposts of administrative investigations and analyzes the substantial power agencies wield when they investigate. It surveys and analyzes the limiting principles in law that operate as nominal constraints to unlawful administrative investigative behavior. This Article concludes by considering procedural and substantive constraints that could be implemented to align agency investigations with constitutional and statutory norms without sacrificing their ability to fulfill their critical missions for the American public.

GW Paper Series

2021-49

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