Administrative Law - Edit

"after hearing"

- does not trigger formal proceeding - look to intent of congress but must be CLEAR intent - if there isn't clear intent FECR tells us its informal

Law of external administration

- legal relation between Administrative authorities and private interests.

Law of Internal Administration

- legal relation between government and its administrative officers; - legal relation that one administrative officer/organ bears to another; - It considers the legal aspects of public administration in its institutional side.

Where to look for formal requirement trigger?

- look in organic statute that empowers and limits the agency - APA

Organic Statute

- look to see if the statute requires the rulemaking to be on the record and after a hearing - congress choose what the want - doesn't have to choose informal or formal

Distinguishing Rulemaking v. Adjudication

- look to the substantive nature of the hearing that congress intended to provide - when the statute is unclear, presume that an adjudicatory hearing subject to judicial review must be on the record - look to legislative history for congressional intent providing that the statute meant for informal

553c

- notice and comment requirement from all interested persons - organic statute or agency regulations tell if oral presentation is available - everything from 556 and 557 excluded

554

- notice and comment requirement from all interested persons - organic statute or agency regulations tell if oral presentation is available - everything from 556 and 557 excluded

555

- representation by counsel - parties must be informed of agency decision - qualified right to subpeona

What does due process clause require?

-quasi legislative: virtually no due process protection (rule making) - quasi judicial- notice and fair opportunity to be heard

Pricipal Subdivision of Administrative Law

1) law of internal administration 2) law of external administration

when does formal v. informal procedures apply for rulemaking?

1. Steps: - APA 553c: if applies then use formal rule making procedures (556 and 557) in addition to 553 - if does not apply use 553 only - organic statute: look to see if the statute requires the rulemaking to be on the record and after a hearing

Classifications of Different Administrative Laws

1.) As to source: a. Law that controls administrative authorities. b. Law made by administrative authorities. 2.) As to purpose: a. Adjective or procedural administrative law b. Substantive administrative law 3.) As to applicability: a. General administrative law b. Special or particular administrative law

Sources of Administrative Law

1.) Constitution 2.) Statutes 3.) Judicial decisions 4.) Rules, regulations, orders, proclamations

Scope of Administrative Law

1.) The law which fixes the administrative organization and structure of the government; 2.) The law, the execution and enforcement of which is entrusted to administrative authorities; 3.) The law which governs public officers, their competencies, rights, duties, liabilities, elections, etc.; 4.) The law which creates administrative agencies, defines their powers and functions, prescribes their procedures including the adjudication and settlement of contested matters involving private interests; 5.) The law which provides remedies administrative or judicial, to those aggrieved by administrative acts or decisions; 6.) The law which governs judicial review of or relief against administrative acts or decisions; 7.) The rules, regulations, orders and decisions made by administrative authorities dealing with the interpretation and enforcement of the laws entrusted to their administration; and, 8.) The body of judicial decisions and doctrines dealing with any of the above.

551

APA defines rulemaking: ''rule making'' means agency process for formulating, amending, or repealing a rule

APA

Administrative Procedure Act, adopted in 1946, established procedures when agencies engage in quasi-legislative (rulemaking), or quasi-judical (adjudication) functions. Controls much of the administrative process by establishing procedures that must be followed when an agency engages in its quasi-legislative function (rulemaking) or quasi judicial function (adjudication) Regulate dissemination of info gathered by Agency.

Adjudication

Administrative power by agency to make decisions which have nearly the same force of law as federal courts, also called a quasi-judicial power.

Rulemaking

Administrative power by agency to promulgate (make) regulations to supplement or clarify its statutory mandate. Rulemaking may be Informal, Hybrid, or Formal.

Investigation

Administrative power of agency compelling persons to turn over information in possession. Also used for compiling and disseminating information for other purposes. Administrative subpoenas, administrative summons, inspect private premises, and required reports are some of the methods used.

Administrative Investigations

Agencies gather, compile and disseminate info; now have almost total freedom to compel access to info. Info collected through Administrative Subpoenas, Administrative Summons, Inspection of Private Premsies and Required Reports

Premises Inspections

Agency demand for inspection closely supervised; must obtain search warrant before inspection, and provide reasons for inspection. Exceptions are: Emergency Searches, Consent, Public View or Closely regulated Businesses

Regulatory Agency

Agency given comprehensive authority to oversee wide spectrum of economic activities of specific industry

Inpect Private Premises

Agency may seek physical access to gather information, but may require a warrant. Warrant exceptions include: emergency searches, consent, public view and closely regulated businesses.

Administrative Rule

Agency statement of general applicability that implements or interprets a law, fixes and describes the procedures in or practice requirements of an agency, including its regulations.

Rule Making

An agency process for the formulation, amendments, or repeal of a rule.

Legislative Regulations

Are accorded by the court or by express provisions of statute, the force and effect of law immediately upon going into effect. - In such instance, the administrative agency acts in a legislative capacity. LEGISLATIVE RULES are in the nature of SUBORDINATE LEGISLATION, intended to implement the policy of a primary legislation.

AEC

Atomic Energy Commission (public relations powers reassigned to Dept. of Energy, and restructured as Nuclear Regulatory Commission - NRC)

Required Reports:

Businesses and individuals subject to the agency review are required to produce reports of the information and produce it to the agency

Rulemaking Powers

Can make rules that have the force of law

Ratemaking

Category of economic regulation which establish minimum and maximum rates to charge consumers for regulated products.

Licensing

Category of economic regulation which issues certificates of "public convenience and necessity" to qualified applicants

Business Practices

Category of economic regulation which oversees purchases, mergers, consolidations, interlocking BoDs, issuance and sale of stock and antitrust.

CAB

Civil Aeronautics Board, created after Depression, powers transferred to Dept. of Transportation in 1985

Legislative Oversight

Congress creates and can eliminate administrative agencies, or can re-assign certain powers from one agency to another, or expand or restrict powers delegated to an agency. Legislative veto, process by where House or Senate could veto agency regulations, was used for a time, but ended with INS v. Chada, 462 U.S. 919 (1983), when S. Ct. decided veto was legislative act, and needed to be approved by both House and Senate and signed by President to be effective. Statutes enacted overriding agency rules could be enacted. Congress can limit appropriations, and retains some control over personnel through approval of Senate for some appointments.

Safeguards

Controls such as procedural due process, adoption of standards by agency, and judicial review

Independent Agencies

Designed to function without excessive political pressure, created by Congress, governed by commission or board appointed by President, and confirmed by Senate.

Determinative Powers

Enabling Powers Directing Powers

Paperwork Reduction Act

Enacted in 1980 to eliminate redundant and costly required reports. All reporting requirements must be approved by OMB, but oversight may be reduced if agency regulates its own required reports through rulemaking.

EPA

Environmental Protection Agency, executive agency, only agency not within Cabinet Dept.

E.O. 12291

Executive Order prohibiting agencies from making regulations unless benefits exceed costs (names OMB to enforce compliance.)

FCC

Federal Communications Commission, independent agency, created after Depression

FERC

Federal Energy Regulatory Commission, independent agency

FPC

Federal Power Commission, created after Depression, powers transferred to FERC in 1977

FRB

Federal Reserve Board, independent agency.

FTC

Federal Trade Commission, created in 1914, independent agency

FDA

Food and Drug Administration, executive agency, within Dept. of Health & Human Services

Examples of Executive Agencies

IRS, Social Security Agency

INS

Immigration and Naturalization Service, executive agency, within Department of Justice

Supplementary Regulation

Intended to fill in the details of the law and "to make explicit what is only general". Its purpose is to enlarge upon statute, subject only to the standards fixed therein, to ensure its effectivity in accordance with the legislative will.

IRS

Internal Revenue Service, executive agency, within Treasury Dept.

ICC

Interstate Commerce Commission, created by Congress in 1997, first independent regulatory agency.

Contingent Regulation

It is issued upon the happening of a contingency - administrative agency is allowed to ascertain the existence of particular contingencies and on the basis thereof enforce or suspend the operation of a law.

Judicial Oversight

Judicial review of agency action under Constitution, existing statutues, and agency's regulations.

Rule Content

Judicial review of substantive content to rules is very limited.

Delegation Doctrine

Judicially enforced principle reflecting the type and degree of legislative power Congress may delegate. Two limitations placed on Congress regarding power delegation is: power deciding who or what to tax, and delegation of power to private persons.

Administrative Law

Law practice specialty area which deals with legal rules that create, affect, and generated by administrative agencies.

Kinds of Administrative Regulations

Legislative Interpretive

Fourth Amendment Protections

Little to no protection provided to individual information, and documents in possession of third parties cannot be protected at all

Informal Adjudication

Means either: 1) Congress has not created any procedural requirements or 2) Congress requires a few procedures. Even when not specified, constitutional due process must be provided.

Dissemination of Information

Method of enforcing agency's laws, or preventing violations by others by releasing information, i.e., press release announcing recall of defective product.

Motion to Quash

Method to nullify or limit an administrative subpoena. Respondent files this in an effort to not have to produce the information demanded, or to limit or nullify the subpoena

Required Reports

Method used under investigation powers of agency to gather information, which may be enforced by nonrenewal of license or fine. Organizations and businesses can claim virtually no protection. Individuals are protected by 5th Amendment, 4th Amendment provides little protection for individual information, and docs possessed by 3d parties generally have no protection. Limited by Paperwork Reduction Act of 1980.

Intelligible Standards

Modern application of standards set by Congress for administrative agencies with regard to specific rules to carry out standards & policies. Congress cannot delegate its power to tax; cannot delegate its power to private persons

NLRB

National Labor Relations Board, independent agency, created after Depression

Requirements of Informal Rulemaking

Notice; Opportunity to Comment; Statement of Reasons; Publication

NRC

Nuclear Regulatory Commission (restructured from Atomic Energy Commission.)

OSHA

Occupational Seafety and Health Administration, executive agency, within Dept. of Labor

OMB

Office of Management and Budget

Directing Powers

Order the doing or performance of particular acts to ensure compliance with the law and are often exercised for corrective purposes.

Executive Oversight

Power of the President to appoint or remove leaders of many executive administrative agencies. Oversight of agency's budget (by OMB which is under President's control). E.O. 12291 forbids adopting regulations where costs exceed benefits. President also controls representation from Dept. of Justice for litigation.

Administrative Powers

Powers bestowed upon most administrative agencies by Congress: Investigation, rulemaking and adjudication

Formal Adjudication

Procedures which are nearly identical to those used in a civil trial. Losing party can typically appeal to commission or administrator. Appeal process resembles appellate procedure; no new trial is held.

Examples of Independent Agencies

SEC, ICC, FTC, Federal Reserve Board, FCC, NLRB

APA § 555(d)

Section of Administrative Procedure Act which deals with subpoena and summons power.

SEC

Securities Exchange Commission, independent agency, created after Depression

SBA

Small Business Administration, executive agency, within Dept. of Commerce

SSA

Social Security Administration, executive agency

Enabling Act

Statute passed by Congress establishing an administrative agency, determining structure, functions, powers (rulemaking, investigative or adjudicative), and operational standards. Sometimes statute also authorizes Executive Order to create agency.

Administrative Subpoenas

Subpoena issued by administrative agency which must be enforced by courts when properly issued. Civil contempt of court may be charged for noncompliance.

Administrative Summons

Summons issued by administrative agency (IRS in example) for information.

Classification of Legislative Regulation

Supplementary Regulation Contingent Regulation

Fourth Branch of Government

Term sometimes used for administrative agencies

Quasi-Legislative Power

The authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of the law and implement legislative policy. It possessed the same legal force and perhaps with even more efficiency than the statutes they are supposed to implement. This is also known as the POWER OF SUBORDINATE LEGISLATION. Also, defined as the power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found.

Enabling Powers

Those that permit the doing of an act which the law undertakes to regulate and which would be unlawful without government approval. Ex: issuance of licenses

Interpretive Regulation

Those which purpose to do no more than interpret the statute being administered, to say it means. - It is issued by administrative body, as an incident of its power to enforce the law and is intended merely to clarify its provision for observance with the legislative will.

Licensing, Ratemaking, Business Practices

Three categories of economic regulation

Rulemaking Procedure Types

Trial type in formal rulemaking; informal notice and comment; little or no public participation. Informal notice and comment most used.

Hybrid Rulemaking

Type of rulemaking power which incorporates all informal rulemaking procedure plus additional ones required by enabling act, such as a hearing where interested parties may appear. "Notice and Comment" procedures. Announce rule and give time to comment.

Formal Rulemaking

Type of rulemaking power which uses a "trial-type", and includes a hearing similar to adjudication, where interested parties may not only appear but may also cross-examine witnesses. Agency is required to use formal rulemaking only if enabling act specifies. Generally avoided by Congress. Persons affected can seek judicial review.

Informal Rulemaking

Type of rulemaking power which utilizes the "notice and commnet" procedures found in the APA. Agency must announce proposed rule, and allow interested parties to file written comment. No hearings are required, but agency may do so.

Non-regulatory agencies

Typically agencies that dispense money to promote social and economic welfare in form of government insurance and pensions.

Executive Agencies

Units within executive branch of government, typically headed by one individual, and appointed by President (some require Senate approval).

VA

Veterans Administration, executive agency, within Dept. of Health & Human Services

559

congress can grant more but not less

556

hearings, presiding employees, powers and duties, burden of proof, evidence, record as basis of decision

557

initial decisions

553C

notice and comment requirement from interested person - organic statute or agency regulations tell if oral presentation is available - everything from 556 & 557 is excluded

553

rulemaking: -statement of time, place and nature of public rulemaking shall be given in notice - reference to legal authority under which rule is proposed - notice and comment by interested persons- no guarantee of oral hearing

Chevron Analysis

two step: - if legislative intent is clear, thats the end of the matter, court executes clear intent - if statute is silent or ambiguous, court must defer to any reasonable interpretation of the agency - agency's reasons - are the agency's reasons reasonable?