Administrative Investigations

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 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.

Keywords: administrative law, constitutional law, criminal procedure