5.4 Statutes, Codes & Administrative Law

Most of what a modern paralegal cites is not a nineteenth-century common-law opinion. It is a statute, a code section, or an agency regulation. The PCCE blueprint therefore groups codes (U.S. and state statutes versus common law) with administrative law. The skill is to know which book holds the text and who had authority to write it.

Enacted statutes versus common law

A statute is law enacted by a legislature and (except for a valid veto override) presented to the executive. Common law is law announced by courts in the absence of a controlling statute. When a statute speaks clearly, it displaces the common-law rule on that point. Courts still interpret the statute, fill genuine gaps, and apply remaining common-law doctrines (many tort and contract rules). They do not ignore a limitations period because the old common-law laches story is more attractive.

Positive law in everyday exam usage means the enacted text. Some titles of the United States Code (U.S.C.) have themselves been enacted as positive law; others are the Office of the Law Revision Counsel’s official prima facie restatement of the Statutes at Large. If the Code and the Statutes at Large diverge on a non-positive-law title, the Statutes at Large control. That is why a careful cite-check sometimes goes behind the Code pocket part to the public law.

Slip laws, session laws, Statutes at Large, and the U.S. Code

Track a federal act through the publication chain:

1. Congress passes a bill; the President signs it (or Congress overrides a veto).
2. It is assigned a public law number (for example, Pub. L. No. 117-328) and issued as a slip law.
3. Slip laws are bound, in chronological order, as the United States Statutes at Large. That set is the official session-law publication of the United States. It prints the act as enacted, including effective-date clauses, uncodified notes, and provisions later omitted from the subject-matter code.
4. General and permanent provisions are then codified by subject in the United States Code.

Session laws is the generic name for this chronological print, in any legislature. A state analog is “Laws of New York, 2024, chapter 56” or a California “Stats.” cite. Use session laws when you need the act as passed — a sunset clause, an appropriations rider, or language that never made it into the code. Use the code when you need the law as it reads now, arranged by topic, with amendments already folded in.

Unofficial annotated codes — United States Code Annotated (U.S.C.A.) and United States Code Service (U.S.C.S.) — reprint the statutory text and add case notes, historical notes, and cross-references. They are research tools. They are not a fourth branch of government. The Code of Federal Regulations (C.F.R.) is not a statute book; it is the subject-matter codification of agency rules.

How codes are organized

Federal statutory citations use title / section, with optional chapter or part in the table of contents:

42 U.S.C. § 1983

• Title 42 is a subject volume (The Public Health and Welfare).
• Section 1983 is the specific provision (civil action for deprivation of rights).
• The chapter grouping is how the table of contents clusters related sections.

The U.S. Code currently runs through Title 54 (Title 53 is reserved). The C.F.R. uses 50 titles, some of which line up with U.S. Code titles and some of which do not. Never assume Title 20 of the Code is the same book as Title 20 of the C.F.R.

State codes use the same architecture under local names: California Civil Code § 1714, N.Y. C.P.L.R. 3211, Texas Property Code § 5.008. Some states name books by subject (Civil, Penal, Evidence); others use a single compiled-statutes numbering system. On a national exam, read the citation pattern rather than memorizing one state’s scheme. If the stem gives Ala. Code § 6-2-38, you are in a state code section, not in the C.F.R.

A pocket part or electronic update is how an older bound volume catches amendments. A cite that is right in the main volume and wrong in the supplement is a wrong cite.

Administrative law: the agency as a creature of statute

An administrative agency exists because a legislature passed an enabling (organic) statute that created it and delegated specified power. The EPA cannot invent a criminal code. The Social Security Administration (SSA) cannot decide a diversity tort case. If the enabling act does not grant the power, the agency does not have it.

Agencies act mainly in two modes:

Rulemaking produces a regulation of general application — the agency equivalent of legislation. Under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., the ordinary path is informal or notice-and-comment rulemaking (APA § 553): the agency publishes a notice of proposed rulemaking (NPRM) in the Federal Register, takes public comments, and issues a final rule with a concise general statement of basis and purpose. The final rule is then codified in the C.F.R. Formal rulemaking “on the record after opportunity for an agency hearing” is rare and is required only when the statute says so. Interpretive rules and policy statements have a lighter process; they also have less binding force.

Adjudication decides a particular person’s case — the agency equivalent of a judicial proceeding. An administrative law judge (ALJ) or other hearing officer takes evidence and issues an order. Benefits denials, deportation (removal) cases, licensing, and many enforcement penalties start here. A party usually must exhaust administrative remedies before going to court.

The Federal Register is the daily newspaper of the executive branch (proposed rules, final rules, notices, some presidential documents). The C.F.R. is the annual subject-matter compilation of rules still in force. Research both: the Register for what just happened; the C.F.R. for what the deskbook says today.

Chevron, Loper Bright, and what “deference” means now

From 1984 until 2024, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), told reviewing courts: if the statute is silent or ambiguous, and the agency’s reading is reasonable, defer to the agency. That two-step framework is no longer the law.

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled Chevron. The APA requires the reviewing court to decide “all relevant questions of law” and to “interpret constitutional and statutory provisions.” Courts now exercise independent judgment on what a statute means. They may not adopt an agency’s reading because the statute is ambiguous.

Three qualifications keep you from overstating the case — and the PCCE will offer the overstatement as a distractor:

1. Skidmore respect remains. Under Skidmore v. Swift & Co., 323 U.S. 134 (1944), a thorough, consistent, well-reasoned agency view — especially one issued contemporaneously with the statute and grounded in specialized experience — still has the power to persuade. That is respect, not Chevron’s binding deference.
2. Real delegations still matter. If the best reading of the statute actually gives the agency discretionary authority, the court honors that delegation, fixes its boundaries, and reviews whether the agency stayed inside them (including arbitrary-and-capricious review of the exercise).
3. Loper Bright is about statutes. It does not, by itself, erase every doctrine about an agency’s reading of its own regulation (the Auer / Kisor line). Do not turn one 2024 decision into “agencies may no longer write rules.”

If an item says “the statute is unclear, so the court must accept any reasonable EPA reading,” that was the Chevron reflex. It is the wrong answer after Loper Bright.

Judicial review of agency action

APA §§ 701–706 supply the default judicial-review template. A person suffering legal wrong because of agency action may seek review unless a statute precludes review or the action is committed to agency discretion by law. The court may set aside action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction; without observance of required procedure; or, in formal proceedings, unsupported by substantial evidence. Review is usually on the administrative record, not a brand-new trial in district court.

Some statutes channel review to a court of appeals (for example, many EPA Clean Air Act rules). Others start in district court. Read the enabling act’s review section before you calendar an appeal.

Non-attorney agency representatives — a limited exception

The ordinary rule, from the ethics chapters, is that a paralegal does not appear as counsel. A few enabling statutes and agency rules create a narrow exception. The most tested is Social Security. 42 U.S.C. § 406(a) and 20 C.F.R. § 404.1705 allow a claimant to appoint a qualified non-attorney representative at the agency hearing. Extra requirements apply if that representative wants direct fee payment from past-due benefits. That appointment does not admit the paralegal to the United States District Court for the later judicial-review complaint, does not authorize a deposition in a civil tort case, and does not let the paralegal sign a federal pleading as counsel.

Treat other forums the same way. If the stem cites a statute or rule that authorizes a nonlawyer representative (some unemployment, immigration, or tax matters), stay inside that forum. If the stem is silent, the default UPL line controls.

Worked path. Congress enacts a benefits statute (session law → Statutes at Large → a U.S. Code section). The enabling clause lets SSA write rules. SSA publishes an NPRM, takes comment, and issues a final rule now found in 20 C.F.R. A claimant hires a qualified non-attorney representative for the ALJ hearing. The ALJ denies the claim. After exhaustion, a licensed attorney files the district-court complaint. If the court must interpret a silent phrase in the statute, it does not rubber-stamp SSA’s handbook under Chevron. It decides the meaning itself, giving the agency’s reasoned view whatever Skidmore weight it has earned.