Chapter 23: Administrative Law

Government in the Sunshine Act

"open meeting law" requires that "every portion of every meeting of an agency" be open to "public observation." The act also requires that the public be provided with adequate advance notice of scheduled meetings and agendas.

Records that the FOIA deem exempt

1. Records pertaining to national security. 2. Those containing information that is confidential or personal.

Agency Powers and the Constitution

Administrative agencies occupy an unusual niche in the U.S. governmental structure, because they exercise powers that normally are divided among the three branches of government. Agencies' powers include functions associated with the legislature (rule-making), the executive branch (enforcement), and the courts (adjudication).

Adjudication

After conduction an investigation of a suspected rule violation, an agency may initiate an administrative action against an individual or organization. Most administrative actions are resolved through negotiated settlements at their initial stages. However, an action sometimes ends in formal adjudication

The Final Rule

After the agency review the comments, it drafts the final rule and publishes it in the Federal Register. Final rule is compiled in "Code of Federal Regulations"

The Hearing

Agency adjudication may involve a trial-like arbitration procedure before an Administrative Law Judge (ALJ).

Administrative Process

All federal agencies must follow specific procedural requirements as they go about fulfilling their three basic functions: rule-making, enforcement, and adjudication.

Enforcement

Although rule-making is the most prominent agency activity, rule enforcement is also critical. Often an agency enforces its own rules. After a final rule is issued, agencies conduct investigations to monitor compliance with the rule or the terms of the enabling statute.

The Role of the Administrative Law Judge

An ALJ presides over the hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

ad testificandum ("To Testify") Subpoena

An ordinary subpoena. It is a writ, or order, compelling a witness to appear at an agency hearing.

duces tecum ("Bring It With You") Subpoena

Compels an individual or organization to hand over books, papers, records, or documents to the agency.

Legislative Controls

Congress exercise authority over agency powers through legislation. Congress gives power to an agency through enabling legislation and can take power away - or even abolish an agency altogether - through subsequent legislation.

Administrative Law

Created by administrative agencies. When Congress - or a state legislature - enacts legislation, it usually adopts a rather general statute and leaves its implementation to an administrative agency. The agency creates the detailed rules and regulations necessary to carry out the statue.

Negotiated Settlements

Depending on the agency, negotiations may involve a simple conversation or a series of informal conferences.

Agency Orders

Following a hearing, the ALJ renders an initial order, or decision, on the case. Either party can appeal the ALJ's decision to the board or commission that governs the agency. If displeased with the result, the party can appeal that decision to a federal appellate court.

Comment Period

Following the publication of the notice of the proposed rule-making proceedings, the agency must allow ample time for persons to comment in writing on the proposed rule. The purpose of this time period is to give interested parties the opportunity to express their views on the proposed rule to influence agency policy

Hearing Procedures

Hearing procedures vary widely from agency to agency. Administrative agencies generally exercise substantial discretion over the type of procedure that will be used. Frequently, disputes are resolved through informal adjudication proceedings.

Formal Complaints

If a settlement cannot be reached, the agency may issue a formal complaint against the suspected violator

Federal Executive Agencies

Include the cabinet departments of the executive branch, which assist the president in carrying out executive functions, and the sub-agencies within the cabinet departments.

Administrative Agencies Exist at All Levels of Government

Just as federal statutes take precedence over conflicting state statutes, so do federal agency regulations take precedence over conflicting state regulations.

Rule-making

Must be adopted using the APA's notice-and-comment rule-making, involving these 3 steps: 1. Notice of the proposed rule-making 2. A comment period 3. The final rule.

Agencies Provide a Comprehensive Regulatory Scheme

Often, administrative agencies at various levels of government work together and share the responsibility of creating and enforcing particular regulations

Independent Regulatory Agencies

Outside the federal executive departments (those headed by a cabinet secretary).

Freedom of Information Act (FOIA)

Requires the federal government to disclose certain records to any person or entity on written request, even of no reason is given for the request.

The Administrative Procedure Act

Sometimes Congress specifies certain procedural requirements in an agency's enabling legislation. IN the absence of any directives from Congress concerning an agency procedure, the Administrative Procedure Act (APA) applies

Enabling Legislation

Specifies the name, purposes, functions, and powers of the agency being created.

Executive Controls

The executive branch of government exercises control over agencies both through the preisdent's power to appoint federal officers and through the president's veto power.

Judicial Controls

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

Congress's authority to investigate agencies

They can only investigate the implementation of its laws and the agencies it has created

Notice of the Proposed Rule-Making

When a federal agency decides to create a new rule, the agency publishes a notice of the proposed rule-making proceedings in the Federal Register

Judicial Deference to Agency Decisions

When asked to review agency decisions, the courts tended to accept the agency's judgement, often citing the agency's great expertise in the subject area of the regulation.