POLS 442 FINAL

Courts generally defer to an agency's construction of its own rules and regulations, because the agency's expertise makes it uniquely qualified to interpret its own rules.

True

The doctrine of laissez-faire received strong support in classical economics as it developed in Great Britain under the influence of economist and philosopher _________.

Adam Smith

Presidents can use executive orders to ______________.

All of the above (Create or terminate advisory boards and councils, delegate authority within the executive branch, and set the agenda for executive agencies)

In Tennessee, the _____________ adjudicates claims involving tax recovery, state employee workers' compensation, and alleged negligence by state officials or agencies.

Claims Commission

In 1933, Congress established the Tennessee Valley Authority. Using its power of __________, TVA acquired lands along the Tennessee River in order to construct a series of dams and reservoirs.

Eminent Domain

Once a federal agency rule has been finalized, it is published in the ______________.

Federal Register

The ______ Amendment to the United States Constitution protects people from "unreasonable searches and seizures," not only by police, but by all government officials and their agents.

Fourth

In Bob Jones Univ. v. United States (1983), the Supreme Court held that to warrant a tax exemption as a _________, an institution must "demonstrably serve and be in harmony with the public interest."

501(c)(3)

The federal Privacy Act of 1974 ___________.

All of the above (requires that personal information files held by federal agencies are limited to those that are clearly necessary, prohibits secret record keeping systems, and requires that individuals must be afforded the opportunity to see what information about them is kept and to challenge its accuracy)

The common-law maxim caveat emptor means ____________.

Buyer beware

In ___________ (1984) the Supreme Court held that a court, in reviewing an agency's interpretation of a statute it administers, must perform a two-step analysis. First, it must give effect to the congressional intent if it is clear on the precise question at issue. Second, if the statute is silent or ambiguous on that point, the court must sustain the agency's interpretation if it is based on a permissible construction of the statute.

Chevron v. NRDC

Article I, Section 8 of the U.S. Constitution enumerates the powers of _____________. Correct!

Congress

Article III of the United States Constitution provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the _________ may from time to time ordain and establish."

Congress

The Office of Management and Budget is located within the ___________________.

Executive Office of the President

In Gonzaga Univ. v. Doe (2002), the U.S. Supreme Court held that FERPA affords private parties the opportunity to sue for monetary damages under 42 US Code § 1983.

False

In general, courts are more likely to defer to agency interpretations of statutes where such interpretations allow agencies to act in ways that generate serious constitutional concerns

False

President Trump's "travel ban" was declared unconstitutional by the Supreme Court in 2017.

False

The Supreme Court has held that the Fourth Amendment imposes no limitations on agency inspections of closely regulated industries.

False

The constitutional privilege against self-incrimination is not applicable to administrative subpoenas.

False

Unlike their state and local counterparts, federal executive agencies have the authority to initiate criminal prosecutions by filing charging documents directly in federal district courts.

False

The Paperwork Reduction Act of 1980 created the Office of _____________ within the Office of Management and Budget (OMB).

Information and Regulatory Affairs

__________ is a common-law doctrine that holds that one who unreasonably delays asserting a right and thereby prejudices another party, is barred from asserting a claim in court.

Laches

Although judicial review is not explicitly provided for in the United States Constitution, the doctrine has firm constitutional underpinnings emanating from Chief Justice John Marshall's historic opinion in _______.

Marbury v. Madison

The constitutional division of authority and responsibility between the national government and the fifty states is known as ________.

None of the Above (Not separation of powers, the system of checks and balances, and the unitary system of government)

The Clean Air Act authorizes the _________ to establish and enforce National Ambient Air Quality Standards.

None of the above (Council on Environmental Quality, Tennessee Valley Authority, Army Corps of Engineers)

In 1788, _________ wrote: "A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government."

None of the above (Not George Washington, John Jay, or James Madison)

A _________ suit is "an action brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution."

Qui Tam

Which of the following agencies is primarily administrative rather than regulatory?

Social Security Administration

The ____________ of 1976 was enacted by Congress to give EPA the ability to track the 75,000 industrial chemicals currently produced or imported into the United States.

Toxic Substances Control Act

The First Congress created three major executive departments—State, _________, and War—as well as a number of lesser offices, including an Attorney General and a Postmaster General.

Treasury

Banks are required to report cash transactions exceeding $10,000 and it is illegal to break up a single transaction into two or more separate transactions "for the purpose of evading the reporting requirement."

True

Corporations that hold permits for legalized gambling are always subject to administrative audit.

True

Historically the Supreme Court defined property rights subject to due process of law in the restrictive common-law context of real estate, chattels, and money. The modern Supreme Court has taken a much broader perspective, going so far as to recognize welfare benefits as a form of property.

True

Hybrid rulemaking can result from statutory mandate or agency discretion.

True

In formal rulemaking, the public comment that characterizes informal rulemaking is replaced by a trial-type hearing, customarily presided over by an _______________.

administrative law judge

In Traynor v. Turnage (1988) the U.S. Supreme Court recognized that there is a strong presumption that Congress intends to allow judicial review of administrative action, and that this presumption may be overcome only by _________ of a contrary legislative intent.

clear and convincing evidence

Under the "independent approach" state courts interpret state constitutional provisions without relying on federal court interpretations of counterpart federal constitutional provisions. The opposite approach, sometimes dubbed the "_____________ approach," calls for the state court to simply adopt the prevailing federal interpretation.

clone

In FDA v. Brown and Williamson (2000) the Supreme Court rejected the Food and Drug Administration's decision to regulate tobacco products as "_______________."

drug delivery devices

Under the doctrine of _____________, there was thought to be a bright line between the domain of the national government and that of the states.

dual federalism

In the 1970s federal courts developed the "___________" doctrine, under which courts closely examine the record of an agency's decision to determine whether the agency made a "clear error of judgment."

hard look

A __________ error is one that does not affect the substantive rights of a party or affect the outcome of a judicial or administrative proceeding.

harmless

Under the Supreme Court's doctrine of _________, actions of state and local agencies that are alleged to violate Bill of Rights protections are subject to judicial review in federal courts.

incorporation

In Regulation and Failure, Joseph Stiglitz observes: "No idea has had greater impact on policy than Adam Smith's notion that profit-maximizing firms interacting with rational consumers in competitive markets are led, as if by an '_________,' to society's general well-being."

invisible hand

Cozy relationships among lobbyists, agency officials and members of Congressional committees are known as _____________.

iron triangles

A loose collection of actors inside and outside government who regularly interact in a particular area of policy is often referred to as a(an) __________.

issue network

Until the Industrial Revolution, the prevailing philosophy was __________, because the public did not perceive a need for government to intervene in economic affairs.

laissez-faire

By the close of the 1880s, there was substantial public support for federal legislation to curb ___________. This led Congress to enact the first in a series of antitrust laws.

monopolies

A case is said to be ______ if the parties have voluntarily complied with an agency decision or reached an amicable settlement of the issues involved.

moot

The two essential elements of the informal rulemaking process are ___________.

notice and comment

Political scientists in the 20th century developed the theory of ______ to take into account the proliferation and influence of interest groups in American politics.

pluralism

Under modern constitutional doctrine, federal statutes, and federal regulations promulgated pursuant to those statutes, can _______ state laws and regulations.

preempt

In Lorillard Tobacco Co. v. Reilly (2001), the Supreme Court held that Massachusetts' regulation of cigarette advertising was _________ by federal law.

preempted

A ___________ is defined as "a rule having the force of law, prescribed by a superior or competent authority, relating to the actions of those under the authority's control."

regulation

The notion that a regulation must be designed to achieve the maximum technologically possible reduction in harm is referred to as ________.

regulatory absolutism

The Supreme Court has said that a controversy must be "_______" for judicial resolution in order "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."

ripe

A party filing suit to challenge an agency order must have ________.

standing to sue

Under a strict application of the theory of ______________, Congress cannot remove executive agencies or officers from Presidential control.

the unitary presidency

The term _________ refers to a situation where individual users acting independently according to their own self-interest behave contrary to the common good of all users by depleting a shared resource.

tragedy of the commons

Agency actions beyond the scope of legislatively delegated authority are regarded as __________ and are subject to being invalidated by the courts.

ultra vires

Whenever a person's liberty or property rights are implicated, state and local administrative proceedings must comport with constitutional requirements of due process of law, as required by the ______ Amendment to the U.S. Constitution.

14th

The term "_____________" refers to proceedings before an administrative agency in which the rights and duties of parties are determined.

Adjudication

__________ is the process by which agencies settle disputes or determine the rights of parties that have dealings with agencies.

Adjudication

Adopted in 1946, the ___________ has been called the Magna Carta of the administrative state.

Administrative Procedure Act

Section 551 of the ______________ defines an agency rule as: "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency ..."

Administrative Procedure Act

Section 702 of the ____________ states: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

Administrative Procedure Act

The _________________ was designed to achieve uniformity in agency procedures and allow for public involvement in agency decisions.

Administrative Procedure Act

A notice of proposed rulemaking must include ____________.

All of the above (the time, place, and nature of public rule making proceedings, the legal authority under which the rule is proposed, and either the terms or substance of the proposed rule or a description of the subjects and issues involved)

Title I of the ___________, which prohibits employment discrimination against persons with disabilities, is enforced primarily by the Equal Employment Opportunity Commission (EEOC), which is empowered to promulgate regulations under the statute.

Americans with Disabilites Act

Congress established the Office of the ___________ in 1789 and authorized this official to "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments."

Attorney General

In __________________ (1984), the Supreme Court held: "With regard to judicial review of an agency's construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."

Chevron v. NRDC

In 1883 Congress established the _________, a merit system of hiring, promotion, and discharge for federal employees.

Civil Service

The substantive rules that federal agencies produce are codified in the ________________.

Code of Federal Regulations

Which of the following statutes established prohibitions and requirements concerning closed and abandoned hazardous waste sites?

Comprehensive Environmental Response, Compensation, and Liability Act

To assure that banks insured by the FDIC function properly, Congress has provided that the __________ "shall have access to, and the right to examine and copy, all records and other recorded information in any form, and to examine any property, within the possession or control of any agency or person which is subject to audit."

Comptroller General

In 1974 Congress created the __________to provide Congress with objective, timely, nonpartisan analyses needed for making budgetary decisions.

Congressional Budget Office

The _____________ allows Congress to use expedited congressional procedures to pass joint resolutions disapproving of almost all executive agency regulatory actions.

Congressional Review Act of 1996

The U.S. Fish and Wildlife Service is responsible for promoting conservation of the nation's plants and animals and their habitats and has enforcement authority under the______________.

Endangered Species Act

The federal statute known as _______ provides that federal funds are to be withheld from school districts that have a policy or practice of permitting the release of education records without the students' written consent, or parental consent of minor students.

FERPA

Article I of the U.S. Constitution states that the Congress "shall take Care that the Laws be faithfully executed."

False

At the federal level judicial review of agency orders is generally before the United States Supreme Court.

False

Because the Sixth Amendment provides for the assistance of counsel only in criminal proceedings, a person has no right to hire an attorney to represent him or her in an administrative proceeding.

False

Congress has discouraged the use of negotiated rulemaking by federal agencies.

False

Federal law requires that that a notice of proposed rule making be published in the ______________.

Federal Register

One can track a federal agency's rulemaking process by consulting the _____________.

Federal Register

Followers of Thomas Jefferson argued for limited government and opposed efforts of the ___________ to expand the powers, functions and machinery of the national government.

Federalist

Under the Food, Drug and Cosmetic Act the ____ has the authority to regulate "drugs" and "devices."

Food and Drug Administration

In his first inaugural address, President _____________ said, "I ... shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe."

Franklin D. Roosevelt

The purpose of the _______ is to prevent the bureaucracy from shrouding itself in a cloak of secrecy, which is something that agencies, left to their own devices, are prone to do. Correct Answer

Freedom of Information Act

_____________, the English political philosopher whose ideas were highly influential among the American founders, wrote that "the Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others."

John Locke

____________ believe that social progress is best achieved by unleashing the potential of the individual and by allowing maximum freedom in social relations and in the marketplace.

Libertarians

In language echoing the __________, the Tennessee Constitution provides: "That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land. You Answered

Magna Carta

Forms of ____________ include informational asymmetries, the tragedy of the commons, and monopolies.

Market failure

___________ argued that bureaucracy is an essential part of modern life because it is the most rational way for society to achieve collective goals.

Max Weber

In the landmark case of ____________, the Supreme Court upheld Congress's power to establish a national bank and, implicitly, its power to create a host of administrative and regulatory agencies.

McCulloch v. Maryland (1819)

Which of the following programs is administered by the U.S. Department of Health and Human Services?

Medicare

In Schechter Poultry Corporation v. United States (1935), the Supreme Court struck down the ______________ of 1933.

National Industrial Recovery Act

In 1935, Congress a created the ___________ to investigate allegations of unfair labor practices and issue orders to remedy violations.

National Labor Relations Board

The rules governing federal appellate court procedures are set forth in ____________.

None of the above (Not the APA, Article III of the US Constitution, or the Federal Rules of Civil Procedure)

Most of the U.S. Supreme Court's cases come to the Court via the writ of __________.

None of the above (correct answer: certiorari)

Negotiated by the Bush Administration and pushed through Congress by the Clinton administration, the _____________ was intended to create a common market among the United States, Canada and Mexico

North American Free Trade Agreement

In terms of controlling the bureaucracy, the most important office within the Executive Office of the President is the ___________.

Office of Management and Budget

In 1915, in Bi-Metallic Investment Co. v. State Board of Equalization, the Supreme Court rejected the contention of property owners that Denver's across-the-board revaluation of real estate without a prior hearing violated their rights to due process of law. Writing for the Court, Justice ______________ distinguished Bi-Metallic from Londoner by pointing out that whereas in Londoner only a small number of property owners were affected, Bi-Metallic involved numerous people broadly affected by action closely akin to general legislative enactments that do not require notice and hearing.

Oliver Wendell Holmes

In Tennessee, a(an) _____________ employee is one who holds a position in an agency in the state service, in which the employee has successfully completed the requisite probationary period.

Preferred Service

The Tennessee, the _________ is charged with setting the rates and service standards of privately owned telephone, natural gas, electric, and water utilities.

Public Utility Commission

While we often refer to the sum total of government agencies as the "bureaucracy," a basic distinction can be made between administrative agencies and _____________ agencies.

Regulatory

In a 1968 essay aptly titled "Rewriting the Constitution," _________, one of the architects of the New Deal, made a startling admission: "To the extent that these New Deal policies developed, they were tortured interpretations of a document intended to prevent them."

Rexford Tugwell

Essential to President _____________'s conservative philosophy was the idea that the federal government had imposed excessive regulation on American business, thereby depressing economic activity and stifling innovation.

Ronald Reagan

Writing for the Supreme Court in Food & Drug Administration v. Brown & Williamson Tobacco Co. (2000), Justice ___________ observed that "an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress."

Sandra Day O'Connor

Every law passed by Congress is published in the __________ in order of the date it was enacted into law.

Statutes at Large

__________ due process is concerned with whether a law is inherently irrational, unreasonable, unfair or unjust.

Substantive

In McGrain v. Daugherty (1927), a case stemming from a Senate investigation into the ________ scandal, the Supreme Court upheld Congress's power to enforce a subpoena.

Teapot Dome

Speaking for the Supreme Court in 1941, Justice Harlan F. Stone minimized the significance of the _______ Amendment, stating: "The amendment states but a truism that all is retained which has not been surrendered."

Tenth

State Administrative Procedure Acts are generally applicable to the executive, but not to legislative or judicial branches of state government.

True

In _______________ (1942), under the reinterpreted Commerce Clause, the Supreme Court sustained a regulatory regime established by the Department of Agriculture under which farmers were penalized for producing commodities in excess of their quotas, even if the surplus was for personal consumption.

Wickard v. Filburn

The 1961 Model State Administrative Procedure Act defines ________, as "a proceeding, including but not restricted to ratemaking, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing."

a contested case

In Goldberg v. Kelly (1970), the Supreme Court noted the importance of ___________ in an administrative hearing.

an impartial decision maker

In J.W. Hampton & Co. v. United States (1928), the Supreme Court held that as long as "Congress shall lay down by legislative act _________ to which [the agency] is directed to conform, such legislative action is not a forbidden delegation of legislative power."

an intelligible principle

A(An) _____________ is an order issued by a regulatory agency prohibiting a named party from continuing a specific course of conduct.

cease and desist order

In keeping with the __________ of the Enlightenment Era, the Framers of the American Constitution sought to create a national government of limited powers.

classical liberalism

To a very great extent today, state and local agencies work with federal agencies under the model of __________.

cooperative federalism

In Londoner v. Denver (1908) the Supreme Court ruled that individual property owners in Denver, Colorado were denied _________ when the city refused to grant them a hearing to allow each property owner to challenge a special assessment for street paving.

due process

Presidents sometimes withhold certain information from Congress using what is termed ______________.

executive privilege

When a statute provides for administrative review within an agency, one who seeks such review must ordinarily first pursue any available administrative remedies. The rationale is that administrative agencies should be given every opportunity to correct their own errors before courts become involved. This ________ doctrine prevents judicial review that is premature or unnecessary, protects agency autonomy, and promotes efficiency and economy.

exhaustion of remedies

An agency order or rule is generally considered _______ when it is reduced to writing and filed as provided by law.

final

When __________ is mandated by a statute, an agency must conduct a trial-type hearing and afford interested parties an opportunity to testify, present witnesses and documentary evidence, cross-examine opposing witnesses, and present arguments.

formal rulemaking

Kenneth Culp Davis, the author of a leading treatise on administrative law and a strong supporter of administrative government, once observed that ___________ is "one of the greatest inventions of modern government."

informal rulemaking

Regulatory impact analysis requires federal agencies to __________.

initiate regulatory actions only when the anticipated benefits exceed the anticipated cost

In Immigration and Naturalization Service v. Chadha (1983) the Supreme Court invalidated a congressional practice known as the ______________.

legislative veto

Constitutionalists are concerned over the extent to which the modern administrative state can be reconciled with traditional constitutional principles such as separation of powers, federalism, and _________.

limited government

As Richard Nathan pointed out in The Administrative Presidency (1983), much contemporary policy making occurs through ______.

management of the bureaucracy

Judicial review of agency action takes place in two ways: 1) appeals from administrative tribunals; and 2) _________________________.

original jurisdiction lawsuits

Statutes delegating _____________ to executive agencies often provide only the most general policy direction, allowing agencies to make policy within broad parameters.

quasi-legislative authority

Titles II and III of the Americans with Disabilities Act require ____________ of disabled persons by state and local agencies and places of public accommodation, respectively.

reasonable accommodation

The first concept that one must understand in trying to comprehend administrative law or any branch of American law is ____________, which is the division of functions across the legislative, executive and judicial branches of the government.

separation of powers

Even where ___________ immunity has not been waived, agency personnel can be found personally liable for torts and other unlawful acts.

sovereign

Under the ________________ mayors, governors and presidents had virtually total discretion in hiring and firing government employees.

spoils system

In contrast to the traditional model of policymaking, the involvement model stresses the role of _____________.

stakeholders

In 2002, the General Accounting Office (GAO) filed suit to obtain records of meetings between Vice President Dick Cheney and various energy industry executives who helped the Bush Administration develop a national energy policy during 2001. A federal district court dismissed the case, holding that the GAO lacked __________.

standing to sue

The 1981 Model State Administrative Procedure Act provides for establishing a bipartisan committee composed of state legislators to review ____________.

state agency rules

A _____________ requires a party to produce specified documents or records.

subpoena duces tecum

Courts will defer to administrative agency findings of fact when such findings are based on "_______" evidence.

substantial

Congress and all fifty state legislatures have enacted laws requiring agencies to hold certain meetings in public. These _________ laws, as they are generally known, do not necessarily allow members of the public or media to speak at such meetings, but they do allow attendance.

sunshine

In 1987 the U.S. Supreme Court ruled that land use regulation can effectively become a(an) _______, if the regulations do not substantially advance legitimate interests of the government or deny owners use of their land.

taking

The National Security Act of 1947 Act precludes judicial review of ______________.

the CIA Director's decisions to terminate employees

At the federal level, __________ oversees the selection of administrative law judges.

the Office of Personnel Management

When it becomes necessary to enforce compliance with an administrative subpoena, an agency must generally petition for enforcement through ______________.

the U.S. Attorney General or state counterpart

"When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically." This is a statement of _____________.

the precautionary principle

Global deforestation and depletion of international fisheries can be viewed as examples of _____________.

the tragedy of the commons

The _____________ allowed confiscation of property located in the United States for a range of crimes committed in violation of foreign law.

USA PATRIOT Act

President ______________ held that the president can "exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise."

William Howard Taft

According to ____________, "The informing function of Congress should be preferred even to its legislative function."

Woodrow Wilson

The Clean Water Act makes it unlawful to discharge any pollutant from a point source into navigable waters unless _____________.

a permit is first obtained

Negotiation, arbitration, and mediation are forms of ___________.

alternative dispute resolution

Both the federal government and the government of each state have the power of __________, that is the right to take private property for public use.

eminent domain

In Goss v. Lopez (1975) the Supreme Court held that the Due Process Clause requires basic procedural safeguards when _______________.

public schools suspend students for misconduct