Chap 19 continued

Executive agencies are often referred to as the

4th branch of government

Before any on-site investigation by a federal administrative agency, most businesses resist those inspections by going to an appeals court t or f

false

Every administrative hearing procedure must be exactly the same as legislated by Congress. t or f

false

The administrative law judge and the agency's investigative and prosecutorial staff are basically one integrated unit. t or f

false

The major function of today's federal agencies is adjudication. t or f

false

The president has the power to appoint

federal officers and also the power to veto enabling legislation.

An independent regulatory agency is usually run by

a commission or board

The law that specifies the procedural requirements that all federal agencies must follow in their rulemaking, adjudication, and other functions is the

Administrative Procedure Act

Substantive due process

Limits what government may do in its legislative and executive capacities—legislation must be fair and reasonable.

Such deference seems appropriate when applied to an agency's analysis of __ questions.

factual

Who are the members of juries in administrative hearings?

No one, because there are no juries.

A state legislature passes a statute prohibiting businesses from supporting any political candidate. If some business owners challenge the constitutionality of the law in court, will the law be upheld?

No, because the law is an unconstitutional restriction on free speech.

The state of Michigan was in an economic crisis. The governor and legislature asked Congress to exempt Michigan's citizens from their federal tax burden for two years. Does Congress have the authority to make the exemption?

No, the taxing and spending clause requires that taxes be imposed uniformly throughout the United States.

What happens when no party appeals an adjudication?

The ALJ's decision becomes the final order of the agency

After the Chevron case, all of those involved in rulemaking by administrative agencies accepted that decision without discussion t or f

false

Procedural due process

The government must give a person proper notice and an opportunity to be heard so that the procedures are fair.

Ryan sends Michael a letter of intent for the purchase of a tract of land. The letter of intent outlines the purchase price, the legal description, and the financing terms. A paragraph is included that states this is a non-binding agreement, and is an offer to enter into negotiations.

The letter of intent is an invitation to negotiate, which is not an offer

what act greatly expanded the authority of government to monitor e-mails and web site visits

USA patriot act

Starla was killed when her car struck one of a group of horses that were roaming on the highway. The Sea Horse Ranch owned the horses, which were property of the corporation that owned the ranch. The horses frequently escaped through poorly maintained fences surrounding the ranch. Shipley, the ranch's owner and president of the corporation, had been cited by the police and the humane society for allowing his horses to run free on the highway. The state sought to prosecute both the Sea Horse Ranch and Shipley for involuntary manslaughter. Can the Sea Horse Ranch corporation be held liable for the crime?

Yes, because a corporation can be held liable for the criminal actions of its officers

Federal administrative agencies are created: a. by enabling legislation passed by Congress. b. by legislative orders issued by the president. c. without any formal action.

a

If an agency failed to follow proper rulemaking procedures when it issued the final rule, the rule may not be binding. a. True b. False

a

The Federal Register is a daily publication of the executive branch that prints (and offers online) government orders, rules, comments, and regulations. a. True b. False

a

The law that specifies the procedural requirements that all federal agencies must follow in their rulemaking, adjudication, and other functions is the: a. Administrative Procedure Act. b. Occupational Safety and Health Act. c. Administrative Open Government Act.

a

When regulated groups oppose a rule adopted by an agency, they can bring a lawsuit arguing that the rule was not authorized by the enabling statute. a. True b. False

a

All cabinet departments of the executive branch are included in independent regulatory agencies. t or f

false

William wants to obtain information from the Securities and Exchange Commission regarding the number of active cases related to insider trading. To request this information, he would need to fill which of the following with the SEC: a. a Freedom of Information Act request. b. a Sunshine Act request. c. an SEC disclosure request. d. a Regulatory Flexibility Act request.

a

AJ agrees to buy Harry's pickup truck so he can pull his trailer. Both AJ and Harry believe that the truck is big enough to do the job. After they complete the deal, AJ finds that the truck is not strong enough to handle the trailer. The contract between AJ and Harry can be rescinded because of

a mutual mistake

Congress can __ an agency all together if it wishes.

abolish

AT&T wants to obtain additional rights to operate within the 700 MHz spectrum in the U.S. The Federal Communications Commission (FCC) has rules and regulations that govern wireless spectrum auction. The FCC is

administrative agency

Congress can abolish an

agency all together if it wishes.

BP violated the Clean Air Act by discharging pollutants from one of its refineries and was unable to reach a settlement with the EPA regarding a violation of the law. The EPA plans to go forward with a trial on this matter which will be hear by

an administrative law judge

The president has the power to __ federal officers and also the power to veto enabling legislation.

appoint

All cabinet departments of the executive branch are included in independent regulatory agencies. a. True b. False

b

BP violated the Clean Air Act by discharging pollutants from one of its refineries and was unable to reach a settlement with the EPA regarding a violation of the law. The EPA plans to go forward with a trial on this matter which will be hear by a. a county court judge. b. an administrative law judge. c. the Supreme Court. d. an appellate court judge.

b

Congress passed the Securities Exchange Act of 1934, which created the Securities Exchange Commission. This legislation, which created an independent regulator agency, is known as a. common law. b. enabling legislation. c. a Congressional act. d. administrative law.

b

The EPA passes a proposed a rule change to the Clean Air Act related to the discharge of emissions by factories. The EPA's action would be considered arbitrary and capricious for all of the following reasons except: a. it failed to provide a rational explanation for its decision. b. it failed to provided the required time for notice and comment. c. it considered legally inappropriate factors. d. it changed a prior policy without justification.

b

The major function of today's federal agencies is adjudication. + hint a. True b. False

b

Courts generally hold that Article I of the U.S. Constitution is the __ for all administrative law.

basis

Courts generally hold that Article I of the U.S. Constitution is the

basis for administrative law

All administrative agencies taken together are considered the __ of the federal government.

bureaucracy

large organization that is structured hierachilly to carry out specific functions

bureaucracy

All administrative agencies taken together are considered the

bureaucracy of the federal government.

Federal administrative agencies are created:

by enabling legislation passed by Congress

AT&T wants to obtain additional rights to operate within the 700 MHz spectrum in the U.S. The Federal Communications Commission (FCC) has rules and regulations that govern wireless spectrum auction. The FCC is a. a judicial agency. b. an executive agency. c. an administrative agency. d. a legislative agency.

c

The main difference between independent regulatory agencies and executive agencies is that: a. independent regulatory agencies are subject only to the authority of Congress. b. executive agencies report only to Congress. c. executive agencies are subject to the authority of the president to a greater degree than are independent regulatory agencies.

c

When an agency formally creates a new rule, its first step is to: a. solicit public comment. b. issue a subpoena. c. publish a notice of the proposed rulemaking proceeding in the Federal Register.

c

The EPA wants to ensure that Delmar Oil Company is in compliance with federal environmental rules regarding cleanup of oil and gasoline spills. In order to do so, it:

can conduct an on-site inspection

The Bureau of Alcohol, Tobacco, and Firearms suspects that Pawn Shoppe, Inc. is violating firearms regulations. To obtain evidence, the bureau:

can search the premises and seize evidence without a search warrant.

The city of Trenton, New Jersey, passed an ordinance making it unlawful to use any form of sound amplification on the city streets. Keller mounted a speaker on a truck. Through the speaker, he played music and spoke on a microphone while driving on city streets. Keller was convicted and fined $50. He appealed, arguing that the ordinance violated his rights of free speech and free assembly. The city claimed that the ordinance served a legitimate governmental function in keeping the city streets safe and orderly, and did not prohibit or unduly restrict any particular speech. The court probably found that the ordinance was

constitutional as a reasonable restriction on fundamental rights.

The judicial branch exercises __over agency powers through the courts' review of agency actions.

control

The judicial branch exercises

control over agency powers through the courts' review of agency actions.

UsAgainstThem, a nonprofit environmental group, is contesting the EPA's interpretation of a rule that has allowed a refinery to offset an increase in emissions relating to one part of the refinery by reducing emissions in another part of the refinery. In challenging the EPA's interpretation, a court will likely a. seek advice from Congress. b. dismiss the suit for lack of standing. c. refer the matter to an agency sub-committee. d. defer to the agency's interpretation.

d

a doctrine based on artile 1, section 8, of the constitution which has been construed to allow congress to delegate some of its power to make and implement laws to administrative agencies

delegation doctrine

Justin is the accountant for a trucking company. A driver, Andrew, holds a gun to Justin's head and forces him to steal from the company. Justin falsifies records, obtains cash, and gives it to Andrew. If criminal charges are brought against Justin, he can assert the defense of

duress

Congress passed the Securities Exchange Act of 1934, which created the Securities Exchange Commission. This legislation, which created an independent regulator agency, is known as

enabling legislation

The delegation doctrine holds that Article I grants Congress the authority to delegate some of its powers by

establishing administrative agencies.

the two basic types of administrative agencies

executive agencies & independent regulatory agencies

two basic types of administrative agencies

executive agencies and independent regulatory agencies

The main difference between independent regulatory agencies and executive agencies is that:

executive agencies are subject to the authority of the president to a greater degree than are independent regulatory agencies.

The Department of Justice wants access to the telephone records of a major newspaper. The requirement for a search warrant, an order from a judge authorizing the search of the records, would be required under the

fourth amendment

Congress can limit the power of federal agencies through its __ authority.

funding

Congress can limit the power of federal agencies through its

funding authority.

Vince relies on his computer skills to have enough money to attend college. He breaks into computer systems to transfer funds to his own accounts. He occasionally gets paid by other students for breaking into the university's computers to alter their grades. Vince is what is commonly referred to as a

hacker

Paul goes to a bar, has seven shots of whiskey, and then goes to an electronics store and buys a $2,500 stereo system. If he later wants to avoid the contract based on his intoxication when he bought it, he will need to prove that

he lacked the mental capacity to enter into the contract.

David has a contact with Leland to build his house at a fixed price, but an unexpected hurricane causes a lumber shortage throughout the U.S. and Leland is unable to build the house. A court may excuse Leland from performing the contract based on the doctrine of

impossibility of performance

Following a hearing, an administrative law judge (ALJ) first issues a

initial order

the three standards that the court may use to determine whether the law violates the Equal Protection Clause.

intermediate scrutiny, rational basis test, strict scrutiny

In the Chevron case, the United States Supreme Court created a standard of broadened deference to agencies on questions of legal ___

interpretation

administrative agency rules that simply declare policies or explain the agency's positions and do not establish any legal rights or obligations

interpretive rules

Nico and Oscar form a contract under which Oscar is to perform gardening services for Nico for one year. For six months, Oscar performs the services, and Nico pays him. Nico's mother, Madison, becomes ill and is unable to care for her garden. The three agree that Oscar will no longer care for Nico's garden but instead will care for Madison's garden for the remainder of the year. The new contract

is a novation

The FDA is investigating Shari's Cosmetics for possible violation of purity regulations. The FDA wants Yasmin, their lead chemist for the company, to testify at an administrative hearing. Yasmin refuses, so the FDA

issues a subpoena ad testificandum

Courts historically have granted deference to an administrative agency's ___

judgement

administrative agency rules that affect substantive legal rights and carry the ame weight as congressionally enacted statutes

legislative rule

Brian wants to buy a mare that he can breed to help develop a horse operation. Larson offers to sell Brian a horse that Larson believes is healthy and should make a good broodmare when a little older. After two years, the horse still has not foaled. The veterinarian tells Brian that the horse is incapable of breeding. If Brian sues to rescind the contract with Larson, it is

likely that a court will allow the rescission based on a mistake of fact.

Velma contracts with Gordon, who agrees to build a stone retaining wall and French drain on her property. The wall and drain are necessary to prevent erosion of her land, which is falling into the creek on her property at a rapid rate. If Gordon breaches the contract by failing to get to work, Velma is under a legal obligation to

mitigate her damages

Gavin runs an illegal gambling operation out of the back of a store that he owns. The store shows increasing profits because Gavin reports the profits of his gambling operation as legitimate store income on his tax returns. Gavin is engaged in

money laundering

Does an agency involved in rulemaking need to respond to all comments during the comment period

no, agency can respond to an comment that are directly about the proposed rule

steps involved in notice-and-comment rulemaking.

notice of proposed rulemaking comment period final rule

the three basic steps involved in notice-and-comment rulemaking

notice of the proposed rulemaking, a comment period, a final rule

administrative rulemaking prodedure that involves the publication of a notice of a proposed rulemaking in the federal register, a comment period for interested parties, and the final rule

notice-and-comment rulemaking

The delegation doctrine holds that Article I grants Congress the authority to delegate some of its __ by establishing administrative agencies.

powers

The doctrine that prevents an offeror from revoking an offer once the offeree has justifiably relied to his detriment or has begun performance is known as

promissory estoppel.

When an agency formally creates a new rule, its first step is to

publish a notice of the proposed rulemaking proceeding in the Federal Register

Congress has the power to "freeze" the enforcement of most federal __ before they take effect.

regulations

KJ Games, in Colorado, designs computer games that it markets and sells to customers via the Internet. A click-on agreement accompanies every download; no game can be installed on a buyer's computer if the buyer does not click on the words "I agree" when prompted. The click-on agreement clearly states in capital letters that all disputes will be settled in Colorado's state courts. Buyers of KJ's games are most likely

required to file any lawsuits in Colorado.

The Court's decision in the Chevron case created a new standard for courts to use when ___ agency interpretations of law.

reviewing

three agencies' powers.

rule making enforcement adjudication

the three agencies' powers.

rule making, enforcement, adjudication

process undertaken by an administrative agency when formally adopting a new regulation or amending an old one

rulemaking

two basic types of subpoenas.

subpoena ad testificandum subpoena duces tecum

Another way to describe the legislative rules that agencies create is that they are

substantive rules

The EPA and Zenith Dry Cleaners are negotiating a settlement for alleged violations of federal emissions standards. The EPA issues subpoenas duces tecum for all of Zenith's financial records for the past two years and orders Zenith to pay the costs. Zenith challenges the subpoena on the basis that:

the agency's request is unrelated to the emission violation and instead is aimed at pressuring Zenith into a settlement.

A city ordinance allows only two hot dog stands to operate in the city's downtown area. If someone who would like to add another hot dog stand challenges this ordinance under the equal protection clause, the rule will be subject to

the rational basis test.

If an agency failed to follow proper rulemaking procedures when it issued the final rule, the rule may not be binding. t or f

true

The Federal Register is a daily publication of the executive branch that prints (and offers online) government orders, rules, comments, and regulations. t or f

true

When a negotiated settlement cannot be reached, the agency may issue a formal complaint against the suspected violator. t or f

true

When regulated groups oppose a rule adopted by an agency, they can bring a lawsuit arguing that the rule was not authorized by the enabling statute. t or f

true

The Iowa legislature passed a law banning trucks 65 feet long or longer from operating on its roads and highways because big trucks do more damage to roads than smaller trucks and are involved in more serious accidents. Consolidated Freightways (CF) drove big trucks through Iowa on a regular basis, and these trucks were legal in other states. Switching to smaller trucks for trips through Iowa was inconvenient and costly. CF filed a lawsuit contending that the statute was unconstitutional. The court most likely found that the Iowa statute was The Iowa legislature passed a law banning trucks 65 feet long or longer from operating on its roads and highways because big trucks do more damage to roads than smaller trucks and are involved in more serious accidents. Consolidated Freightways (CF) drove big trucks through Iowa on a regular basis, and these trucks were legal in other states. Switching to smaller trucks for trips through Iowa was inconvenient and costly. CF filed a lawsuit contending that the statute was unconstitutional. The court most likely found that the Iowa statute was

unconstitutional under the "dormant" commerce clause.

Garrett was a commercial tour boat operator on the northern coast of Kauai, Hawaii. He was licensed by the state of Hawaii to operate his boat in Hanalei Bay. The U.S. Department of Transportation and the U.S. Coast Guard also granted Garrett an unrestricted license to operate his boats in Hanalei Bay. Hawaii subsequently passed a law that banned all commercial use of Hanalei Bay. The state refused to renew Garrett's state license and ruled that he was not allowed to operate his vessel based on his federal licenses. Garrett sued the state, alleging that the state law that prohibited him from operating his boat conflicted with the federal law that authorized him to do so. The court probably found that the state law was

unconstitutional under the supremacy clause.

Kandis offers to pay Tim's way through college if he will give her one of his kidneys in return. He is a perfect donor match and accepts Kandis's offer, signing a contract. Their contract is

void