chapter 15 legal

adjudicating

Quasi judicial function that involves fact-finding and applying law to the facts and violators receive fines or other penalties; can also issue cease and desist orders and consent orders

chairperson

nominated by president and presiding officer at meetings; usually same political as president; equal voting power but somewhat more important bc of visibility

advisory council

not employed by agency but on council as bridge between agency and regular people; usually selected for expertise

cease and desist order

order that a violator stop objectionable activity and refrain from conducting same activity in future; violation punishable by fine up to 10,000/day

Sarbanes-Oxley Act

created during financial crisis; regulates accounting industry; congress created new board PCAOB that is under SEC bc trying to model what was done with new York stock exchange; people on board will be private people—not considered government employees—that can only be removed by SEC for good cause but problem is constitution

quasi legislative

A agency can issue rules that have the impact of laws

influencing agencies

Biggest chance to influence during hearing; Due process requires that public be given notice and have hearing about new rule; Public notice and put in fed register; Can try to influence through asking congress to investigate or going to exec branch but best way to influence is during hearing; Interested parties present evidence in support or against rule; react to force of public opinion even though they aren't politically responsible to constituents; can also influence through writing letter to agency or congress who would notify agency

organization of agencies

Consist of five to seven members on board/commission and one person is appointed as chairperson-- No more than simple majority can be from same party (3/5 or 4/7); Appointments require senate confirmation; Work exclusively for agency (no other business involvement or employment during their term) and can only be removed for cause by president-- inefficiency, neglect of duty, or malfeasance in office

criticism of agencies

Expensive; Volume is hard to keep up with; Dictatorial power—abuse of authority; Cost of regulations for society is high—taxes to pay for agencies and businesses who have to comply with rules end up putting extra costs in price of goods that customers buy-- cost benefit analysis is hard when dealing with a human life; Federal register and state register so need some sort of compliance officer in each state headquarters of a business; Hard for businesses to operate legally bc so many rules and regs but people who have been harmed care about this; large cost to keeping up with all rules bc have to hire people to read them and its nearly impossible to do in a costly manner cause such a large volume

quasi judicial

agencies can make decisions like a court

consent order

avoids expense of going through entire administrative hearing-- business not admitting they're doing something wrong but agreeing to stop and agree no one will take it any further

administrative agencies

boards, bureaus, commissions, and organizations that make up the governmental bureaucracy; perform actual regulatory activity; can have quasi legislative and quasi judicial authority; create and enforce majority of laws affecting business

general counsel

chief legal officer; represent agency in court; seen as very powerful even more powerful than actual chair; significant impact on policy

executive director of administration

chief operating official that oversees accounting, budgeting, congressional liaison—get money from congress and report to exec director, researching and developing

exhaustion of remedies

doctrine that limits when courts can review administrative decisions; applies when claim must first complete admin process before going to court—receive final order from admin agency then you can go to real court; have to let process run bc courts overloaded already and agencies are the experts and agency can remedy the problem if they realize they did something wrong during the process; avoids premature interruption of administrative process; exceptions: if you have fundamental constitutional guarantee at risk, we'll hear that; if exceeding authority; if you would suffer irreparable injury if can't go to court; if agency involved with fraudulent activity

investigating

function of agencies in which they investigate illegal action, subpoena power, examine witnesses under oath, investigate other agencies; be careful with false/fraudulent info to fed agency; complements adjudication function

advising

function of agency in which they give help to president and advisors or to congress-- may propose new legislation; sometimes will pull in other people like attorney general--may inform of need for judicial actions due to violations of law; report info to general public in advisory opinions

secretary

keep meeting records and sign orders and arrange for publication of all agency action in federal register—all agencies use this, published daily—new rules and regs, proposed rules and regs; coordinates actions of agency with others in regulatory process

administrative law judge

people in box with quasi judicial authority; have immunity as long as making decisions within scope of employment—can't sue them for their decisions; hear violations; apply law to facts; issue cease and desist orders; if you appeal, goes to board members—can't escape box; organizationally separate from rest of agency to be impartial; use precedent and must follow procedural rules of agency as well as policy directives; historically biased in favor of agency so several states creating office of admin hearings that provides impartial ALJs for hearings involving all agencies of state gov

Reasons for Agencies

provide specificity-- congress can't make laws specific enough, expertise--NRC has more expertise on nuclear weapons than congress, protection-- protecting the public from businesses who would fail to self regulate otherwise--EPA with environment, regulation--some agencies just there to regulate--replace competition with regulation--when business given monopoly power, loses freedom to contract and gov body determines provisions of contracts and services-- US postal service, social security, affordable care act

rule making

quasi legislative function of agency; rules and regulations have power and force of law; can be general that apply to businesses or can hone into one particular business; rules grow exponentially each year—come out daily; allow time periods for public comments on proposed regulations; issue guidelines as well and they're administrative interpretations of statutes of agency-- don't have same force of law as rules/regulations do

standing to sue

requirement for judicial review of agency's rule-making or adjudicating function; to establish must address: 1) reviewability-- Demonstrate action or decision of agency is subject to judicial review; allowed except for statutes that preclude judicial review (rare) and when agency action is committed to agency discretion by law 2) aggrieved party-- plaintiff must have been harmed by agency action or decision (economic loss and expanding to noneconomic interests like first amendment rights)

three types of reviews

review of rule making, review of adjudications (procedural aspects), review of factual determinations

functions of agencies

rule making, adjudicating, advising, investigation

primary jurisdiction

second doctrine that guides adjudication process; claim originally filed in court but realizes can only be reviewed by agency with expertise—court doesn't rule on issue; pause court process and takes issue and gives it to agency and depending on how agency rules on issue, we may get it back and move forward or we may not have to see it; when referral to agency is better bc of expertise

regional offices

smaller parts of agency that's concerned with regulating area and enforcing rules in area and educating people on rules; investigate alleged violations of laws; have own ALJ and legal counsel

Free enterprise fund v public company accounting oversight board

supreme court case that deals with fact that Constitutional requirements must be met for appointment for agencies; deals with Sarbanes Oxley act and constitutionality of PCAOB agency--Accounting firm doesn't think they should exist under constitution and they challenge with free enterprise fund—violates separation of power (removal of board only by SEC) and appointment clause (board not appointed by president); Since PCAOB is insulated from president, unconstitutional bc board not accountable to president; No violation of appointment clause; Just severed bad part and replaced with at-will removal so PCAOB still exists

FDA v. Brown & Williamson Tobacco Corp.

supreme court case that deals with review of rule making for FDA; Fda expressly disavowed any authority to regulate tobacco until 1996 when decided they do have jusridiction to regulate—concluded that nicotine is a drug within the food drug cosmetic act (FDCA)—based on definitions, authority for regulate tobacco—regulated by trying to stop children and adolescents consumption with new rules and regs (can't sell to under 18 and have to check IDs); tobacco industry not happy so challenged rules and regulations and said they can't regulate tobacco—supreme court said it cannot exceed its delegated authority but what was intent of congress in FDCA—says congress has clearly precluded regulation of tobacco and says that fda exceeded delegated authority bc if congress had given fda power to regulate, it would've been taken off shelves and that's not what congress intended; eventually overridden

review of procedural aspects

type of judicial review that concerns rules of procedure created by administrative agencies; two doctrines that guide: exhaustion of remedies and primary jurisdiction; procedures are far less formal than actual courts bc decisions are supposed to be expedited-- not restricted by strict evidence rules but must ensure that true substance of fair hearing is not denied to any party; agencies have power to create procedural rules bc in better position with their expertise than courts/legislature to design procedural rules adapted to peculiarities of certain industry and tasks of agency; courts can't substitute their judgment or own procedures for those of agency-- only responsible for ensuring consistency with statutes and compliance with constitution for fair hearing (due process clause)

review of factual determinations

type of judicial review that involves some finding of fact that supports conclusion; they are experts and know how to do this; all you look at is: is there substantial evidence to support decision of agency?; courts do not reweigh evidence, do not make independent interpretations of fact, don't substitute their judgment on evidence for agency's—could a reasonable person come to same conclusion from evidence as agency?; agency's really good at cookie-cuter findings of fact in reviews; all that is required is evidence sufficient to convince a reasonable mind to a fair degree of certainty; for court to set aside agency's decision, record has to show that agency did not examine all relevant data and that it ignored issues before it (decision is arbitrary and capricious)

review of rule making

type of judicial review that is Legislative in character; legislature or congress can only delegate authority they have and agency can only create rules and regs within confines of authority; First question—has authority been properly delegated? Does congress even have the authority in first place? delegation must be definite--delegation set forth with sufficient clarity so that all concerned will be able to determine the extent of the agency's authority-- and limited--power to act is limited to areas that are certain-- the definite and limited standards have broad interpretations; Second—has agency exceeded power that's been given to them? has the agency gone beyond the intent of congress--Congress' fault if you think rule is stupid; Once two questions decided in favor of box, it's over—all judiciary can do is answer these two questions; Courts can't interfere with discretion of agency given to them by congress unless their actions are arbitrary and capricious; courts can't substitute judgment for discretion of agency; only check for abuse of discretion—go to congress if you have problem with rule

advisory opinions

unique device generally not available to judicial branch (only deal with actual cases and controversies), you get back what you ask for, not binding but give idea of where agency would stand if practice in question were challenged formally; give advice as to whether a firm's proposed course of action violates any laws of agency