BLAW CH 5: ADMINISTRATIVE LAW

Administrative agencies

- (more than 400) government entities that have the authority to affect the rights of business and private parties through their operation and rules and regulations

Judicial function

- can put you on trial in a judicial process with one of their administrative law judges, who will decide if you violated the rule or not.

fourth branch of government

Administrative agencies Much of the federal, state, and local law in this country is established by countless administrative agencies. These agencies, which many label the "fourth branch of government," possess tremendous power and have long been criticized as being "in reality miniature independent governments ... which are a haphazard deposit of irresponsible agencies." Presidential Task Force Report (1937).

legislative rules

Legislative rules, often called regulations, are in effect "administrative statutes." Legislative rules are those issued by an agency having the ability, under a legislative delegation of power, to make rules having the force and effect of law. For example, the FTC has rulemaking power with which to elaborate upon its enabling statute's prohibition of unfair or deceptive acts or practices.

Executive function

- enforce the rules they make -Also have the right to issue, suspend, and revoke license. Ability to subpoena, enforce, warrantless searches and seizures. Subpeona Power (Subpeona deuces tecum) - agency order that compels you to testify and bring all books and records that go along with that testimony

Legislative function

- make rules

Operation of administrative agencies

- number one job is to make "rules and regulations" 1. they make rules 2. they enforce rules 3. they adjudicate controversies concerning the rules

The Number 1 Function of an Administrative Agency Rulemaking

- process by which an administrative agency promulgates rules of law under the APA.

Administrative Law

- the type of law that is established by Congress and administered by the executive branch of government or Article II of the Constitution

The 6 important restrictions on federal (and state) governmental agencies

1. Appointment 2. Budget 3. Judicial Review 4. Freedom of Information Act 5. Government in the Sunshine Act 6. APA

3 ways federal agency rules are made under APA:

1. Informally 2. Formally 3. Hybrid

Six protections against such immense power in an unelected (4th branch) branch of government:

1. Judicial Review of agency acts as a control or check by a court on a particular rule or order of an administrative agency 2. Administrative Procedure Act (APA) - law that establishes the standards and procedures that federal administrative agencies must follow in their rulemaking and adjudicative functions - provide restrictions on agencies 3. Freedom of Information Act or the (FIA) - this law allows anybody to access all agency documents with certain exceptions which are personnel issue, human resources, and legal matters. 4. Government Sunshine Act (GSA) - A federal law that requires all government meetings to be open to the public with the exception to personnel and legal matters. 5. Budget Power - Congress, when establishing an agency through its enabling legislation, retains the power to fund (or not) - provides control over agencies 6. Appointment Power - President appoints (and removes) heads of agencies, thus controls philosophy/direction of regulation.

Agencies make 3 different types of rules under the Administrative Procedures Act (APA)

1. legislative rules 2. interpretive rules 3. procedural rules - The process starts out the same for all three. Before any rule can be considered the proposed rule has to be published to the Federal Register

Three basic functions of administrative agencies

1. rulemaking 2. enforcement 3. adjudication and controversies NUMBER 1 FUNCTION IS RULEMAKING

Much of federal, state, and local law in this country has been established by administrative agencies, which people label as the __________ because they possess tremendous power.

4TH BRANCH OF GOVERNMENT

enforcement

Agencies also investigate conduct to determine whether the enabling statute or the agency's legislative rules have been violated. In carrying out this executive function, the agencies traditionally have been accorded great discretion, subject to constitutional limitations, to compel the disclosure of information.

rule

Agency statement of general or particular applicability designed to implement, interpret, or process law or policy.

administrative process

Entire set of activities engaged in by administrative agencies while carrying out their rulemaking, enforcement, and adjudicative functions. an agency exercises legislative power when it makes rules, executive power when it enforces its enabling statute and its rules, and judicial power when it adjudicates disputes.

Federal legislation permits administrative agencies to deny access to nine categories of records is the:

FOIA

FOIA (Freedom of information act)

First enacted in 1966, FOIA gives the public access to most records in the files of federal administrative agencies. Once a person has requested files, an agency must indicate within ten working days whether it intends to comply with the request and must within a reasonable time respond to the request.

Administrative agencies

Governmental entity (other than courts and legislatures) having authority to affect the rights of private parties. Administrative agencies, referred to by names such as commission, board, department, agency, administration, government corporation, bureau, or office, regulate a vast array of important matters involving national safety, welfare, and convenience. For instance, federal administrative agencies are charged with responsibility for national security, citizenship and naturalization, law enforcement, taxation, currency, elections, environmental protection, consumer protection, regulation of transportation, telecommunications, labor relations, trade, commerce, and securities markets, as well as with providing health and social services.

Procedural rules

Rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before it. exempt from APA

Interpretative Rules

Statements issued by an administrative agency indicating its construction of its governing statute. exempt from APA

government in the sunshine act

The Government in the Sunshine Act requires meetings of many federal agencies to be open to the public. This Act applies to multimember bodies whose members the President appoints with the advice and consent of the Senate, such as the SEC, the FTC, the Federal Communications Commission, the CPSC, and the Commodity Futures Trading Commission.

privacy act

The Privacy Act protects certain government records pertaining to individuals that a federal agency maintains and retrieves by an individual's name or other personal identifier, including social security number.

adjudication

The giving or pronouncing of a judgment in a case; also, the judgment given. The formal procedure by which an agency resolves a matter (called adjudication) involves finding facts, applying legal rules to the facts, and formulating orders. Adjudication, which in essence is an administrative trial, is used when the enabling statute so requires.

In 1990, Congress enacted the Administrative Dispute Resolution Act. This Act does:

a. encourage the federal agencies to use alternative dispute resolution.

As part of executive function to investigate conduct, administrative agencies may compel the disclosure of information, except under which limitation? a. when promulgating rules. b. the information sought is irrelevant. c. when notice and comment period has not taken place. d. when settlement is imminent.

b the information sought is irrelevant

By virtue of their power to __________, U.S. Presidents have significant control over the administrative agencies housed within the __________ branch.

b. appoint and remove the chief administrator of those agencies; executive.

The legislature may exercise control of administrative agencies in various ways. Which is NOT a control maintained by the legislative branch? a. It may reverse or change an agency rule or decision by specific legislation. b. By amending an enabling statute to increase, modify, or decrease an agency's authority. c. Through its budgetary power. d. Through the power to appoint and remove chief administrators.

d. Through the power to appoint and remove chief administrators.

Judicial review

describes the process by which the courts examine government action. Judicial review, which is available unless a statute precludes such review or the agency action is committed to agency discretion by law, acts as a control or check on a particular rule or order of an administrative agency.

Administrative law judges are appointed by the agency through a professional merit selection system and may be removed only:

for good cause

__________ are those issued by an agency having the ability, under a legislative delegation of power, to make rules having the force and effect of law.

legislative rules

Administrative agencies promulgate three types of rules:

legislative rules, interpretative rules, and procedural rules.

Under the Government in the Sunshine Act, meetings of many federal agencies are required to be:

open to the public

Congress has enacted a protection statute to prohibit the unauthorized disclosure of federal agency records pertaining to an individual. This statute is:

privacy act

Once __________, administrative rules are applicable to all parties.

promulgated (Promulgation is the formal proclamation or the declaration that a new statutory or administrative law is enacted after its final approval.)

FOIA permits agencies to deny access to nine categories of records:

records specifically authorized in the interest of national defense or foreign policy to be kept secret, records that relate solely to the internal personnel rules and practices of an agency, records specifically exempted by statute from disclosure, trade secrets and commercial or financial information that is privileged or confidential, interagency or intra-agency memorandums, personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, investigatory records compiled for law enforcement purposes, records that relate to the regulation or supervision of financial institutions, and certain geological and geophysical information and data.

Informal rulemaking

require that the agency provide the following: prior notice of a proposed rule, usually by publication in the Federal Register; an opportunity for interested parties to participate in the rulemaking; and publication of a final draft containing a concise general statement of the rule's basis and purpose at least thirty days before its effective date.

hybrid rulemaking

results from combining the informal procedures of the APA with the additional procedures specified by the enabling statute.

formal rulemaking

the agency must consider the record of the trial-like agency hearing and include a statement of "findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record" when making rules.

Administrative agencies exercise powers that have been allocated by __________ to the three separate branches of government.

the constitution

Rulemaking

the process by which an administrative agency enacts or promulgates rules of law.