Chapter 43

Administrative Law Judge; order

An ALJ's decision is issued in the form of an .

State and Local Administrative Agencies

Local governments, such as cities, municipalities, and counties, create to administer local regulatory law. Examples Cities adopt and enforce zoning laws, building codes, and so on.

Administrative Law Judge

The order must state the reasons for the ALJ's decision. The order becomes final if it is not appealed. An appeal consists of a review by the administrative agency. Further appeal can be made to the appropriate federal court (in federal agency actions) or state court (in state agency actions).

Powers of Administrative Agencies 3. List and explain the functions of administrative agencies.

When an administrative agency is created, it is delegated certain powers.

Procedural due process

requires the respondent to be given proper and timely notice of the allegations or charges against him or her and an opportunity to present evidence on the matter.

interpretive rule

Administrative agencies can issue an that interprets existing statutory language. Such rules do not establish new laws. Neither public notice nor public participation is required.

State and Local Administrative Agencies

All states create administrative agencies to enforce and interpret state regulatory law. State administrative agencies have a profound effect on business. are empowered to enforce state statutes. They have the power to adopt rules and regulations to interpret the statutes they are empowered to administer.

Executive Power

An administrative agency can issue an administrative subpoena to a business or person subject to its jurisdiction. The subpoena directs the party to disclose the requested information to the administrative agency. The administrative agency can seek judicial enforcement of the subpoena if the party does not comply with the subpoena.

Granting Licenses

Applicants must usually submit detailed applications to the appropriate administrative agency. In addition, the agency usually accepts written comments from interested parties and holds hearings on the matter. Courts generally defer to the expertise of administrative agencies in licensing matters.

Judicial Review of Administrative Agency Actions 5. Explain the procedure for judicial review of administrative agency decision.

Decisions of federal administrative agencies can be appealed to the appropriate federal court (see Exhibit 43.2). Decisions of state administrative agencies can be appealed to the proper state court.

Administrative agencies

Governments often create to administer and enforce new statutes or laws (see Exhibit 43.1). Sometimes when the legislative branch enacts a new statute, it authorizes an existing administrative agency to administer and enforce the law.

Judicial Authority

In adjudicating cases, an administrative agency must comply with the Due Process Clause of the U.S. Constitution (and state constitution, where applicable).

Cabinet-Level Departments

departments answer directly to the president. The president appoints cabinet members subject to confirmation by a majority vote of the U.S. Senate. Cabinet-level departments advise the president and are responsible for enforcing specific laws enacted by Congress.

Statements of policy

do not have the force of law. Again, public notice and participation are not required.

Substantive administrative law

is law that an administrative agency enforces—federal statutes enacted by Congress or state statutes enacted by state legislatures.

Powers of Administrative Agencies 3. List and explain the functions of administrative agencies.

Administrative agencies have been delegated legislative powers that consist of substantive rule making, interpretative rule making, issue of statements of policy, and granting of licenses. Administrative agencies have also been delegated certain executive powers and judicial powers. Legislative, executive, and judicial powers are discussed in the following paragraphs.

statement of policy

Administrative agencies may issue a . Such a announces a proposed course of action that an agency intends to follow in the future. Statements of policy do not have the force of law. Again, public notice and participation are not required.

statement of policy

Administrative agencies may issue a . Such a statement announces a proposed course of action that an agency intends to follow in the future.

Federal Administrative Agencies

Administrative agencies that are created by the U.S. Congress are Congress has created many that have broad regulatory powers over key areas of the national economy.

General Government Regulation

consists of laws that regulate businesses and industries collectively. That is, most of the industries and businesses in the United States are subject to these laws. These laws do not regulate a specific industry but apply to all industries and businesses except those that are specifically exempt from certain regulations.

Administrative agencies

are created by federal, state, and local governments to enforce regulatory statutes. Government agencies range from large, complex federal agencies, such as the federal Department of Homeland Security, to local zoning boards. There are more than 100 federal . Thousands of other have been created by state and local governments.

Specific government regulation

consists of laws that regulate specific industries. That is, an industry is subject to administrative laws that are specifically adopted to regulate that industry. A Administrative agencies, which are industry specific, are created to administer those specific laws.

Executive Power

Administrative agencies are usually granted executive powers, such as the power to investigate and prosecute possible violations of statutes, administrative rules, and administrative orders.

Administrative Procedure

Administrative law is a combination of substantive and procedural law.

Privacy Act The federal Privacy Act8

concerns individual privacy. It stipulates that federal administrative agencies can maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose. The act affords individuals the right to have access to agency records concerning themselves and to correct these records. Many states have enacted similar privacy acts.

Procedural administrative law

establishes the procedures that must be followed by an administrative agency while enforcing substantive laws.

Administrative Law Judge

is an employee of an administrative agency. Both the administrative agency and the respondent may be represented by counsel. Witnesses may be examined and cross-examined, evidence may be introduced, objections may be made, and so on. There is no jury.

Administrative law

is law enacted by governments that regulate industries and businesses and professionals. are often referred to as regulatory statutes.

Administrative Law Judge

preside over administrative proceedings. They decide questions of law and fact concerning a case.

interpretive rule

Administrative agencies can issue an that interprets existing statutory language. Such rules do not establish new laws. Neither public notice nor public participation is required.

Introduction to Administrative Law and Regulatory Agencies

Businesses are generally free to produce goods or services, enter into contracts, and otherwise conduct business as they see fit. However, businesses are subject to substantial federal, state, and local government regulation. Government regulation is designed to protect employees and the public from unsafe and abusive practices by businesses. Many times when a regulatory statute is enacted, an administrative agency is created to enforce the law. Regulatory agencies—and the industries, businesses, and professionals they regulate—are governed by a body of administrative law. Because of their importance, administrative agencies are informally referred to as the fourth branch of government.

Equal Access to Justice Act

Congress enacted the Equal Access to Justice Act7 to protect persons from harassment by federal administrative agencies. Under this act, a private party who is the subject of an unjustified federal administrative agency action can sue to recover attorneys' fees and other costs. The courts have generally held that the agency's conduct must be extremely outrageous before an award will be made under the act. A number of states have similar statutes.

Fourth Amendment to the U.S. Constitution

Evidence from an unreasonable search and seizure ("tainted evidence") is inadmissible in court. In the following case, the U.S. Supreme Court had to decide whether a warrantless search of business premises was lawful.

State and Local Administrative Agencies

Examples Most states have corporation departments to enforce state corporation law and regulate the issuance of securities, banking departments to license and regulate the operation of banks, fish and game departments to regulate fishing and hunting within the state's boundaries, workers' compensation boards to decide workers' compensation claims for injuries that occur on the job, and environmental protection departments to regulate the land, waterways, and other environmental issues.

Cabinet-Level Departments

Examples The Departments of State, Defense, Homeland Security, Commerce, Agriculture, and Education are cabinet-level federal administrative agencies. The Department of Homeland Security, a cabinet-level federal department, is discussed in the following feature.

Specific government regulation

Examples The Federal Communications Commission (FCC) issues licenses and regulates the operation of television and radio stations. The Federal Aviation Administration (FAA) regulates the operation of commercial airlines. The federal Office of the Comptroller of the Currency regulates the licensing and operation of national banks.

Freedom of Information Act

For purposes of privacy, the following documents are exempt from disclosure: (1) documents classified by the president to be in the interests of national security; (2) documents that are statutorily prohibited from disclosure; (3) records whose disclosure would interfere with law enforcement proceedings; (4) medical, personnel, and similar files; and (5) documents containing trade secrets or other confidential or privileged information. Decisions by federal administrative agencies not to publicly disclose documents requested under the act are subject to judicial review in the proper U.S. District Court.

Judicial Authority

Many administrative agencies have to adjudicate cases through an administrative proceeding. Such a proceeding is initiated when an agency serves a complaint on a party the agency believes has violated a statute or an administrative rule or order.

Judicial Review of Administrative Agency Actions 5. Explain the procedure for judicial review of administrative agency decision.

Many federal statutes expressly provide for judicial review of administrative agency actions. Where an enabling statute does not provide for review, the APA authorizes judicial review of federal administrative agency actions.4 A party who appeals the decision of an administrative agency is called the petitioner.

Individual Rights and Disclosures of Agency Actions

Public concern over possible secrecy of administrative agency actions led Congress to enact several statutes that promote public disclosure of federal administrative agency actions and protect parties from overly obtrusive agency actions. Several of these statutes are discussed in the following paragraphs.

Fourth Amendment to the U.S. Constitution

Sometimes a physical inspection of business premises is crucial to an investigation. Most inspections by administrative agencies are considered "searches" that are subject to the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects persons (including businesses) from unreasonable search and seizures. Searches by administrative agencies are generally considered to be reasonable within the meaning of the Fourth Amendment if:

Granting Licenses

Statutes often require the issuance of a government license before a person can enter certain types of industries (e.g., banks, television and radio stations, commercial airlines) or professions (e.g., doctors, lawyers, dentists, certified public accountants, contractors). The administrative agency that regulates the specific area involved is granted licensing power to determine whether to grant a license to an applicant.

Freedom of Information Act

The Freedom of Information Act5 was enacted to give the public access to most documents in the possession of federal administrative agencies. The act requires federal administrative agencies to publish agency procedures, rules, regulations, interpretations, and other such information in the Federal Register. The act also requires agencies to publish quarterly indexes of certain documents. In addition, the act specifies time limits for agencies to respond to requests for information, sets limits on copying charges, and provides for disciplinary action against agency employees who refuse to honor proper requests for information.

Government in the Sunshine Act

The Government in the Sunshine Act6 was enacted to open most federal administrative agency meetings to the public. There are some exceptions to this rule. These include meetings (1) where a person is accused of a crime, (2) concerning an agency's issuance of a subpoena, (3) where attendance of the public would significantly frustrate the implementation of a proposed agency action, and (4) concerning day-to-day operations. Decisions by federal administrative agencies to close meetings to the public are subject to judicial review in the proper U.S. District Court.

Delegation doctrine.

The agency has only the legislative, judicial, and executive powers that are delegated to it. This is called the Thus, an agency can adopt a rule or regulation (a legislative function), prosecute a violation of the statute or rule (an executive function), and adjudicate the dispute (a judicial function). The courts have upheld this combined power of administrative agencies as being constitutional. If an administrative agency acts outside the scope of its delegated powers, it is an unconstitutional act.

Privacy Act

The federal concerns individual privacy. It stipulates that federal administrative agencies can maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose. The act affords individuals the right to have access to agency records concerning themselves and to correct these records. Many states have enacted similar privacy acts. CONCEPT SUMMARY

Fourth Amendment to the U.S. Constitution

The party voluntarily agrees to the search. The search is conducted pursuant to a validly issued search warrant. A warrantless search is conducted in an emergency situation. The business is part of a special industry where warrantless searches are automatically considered valid (e.g., liquor sales, firearm sales). The business is part of a hazardous industry and a statute expressly provides for nonarbitrary warrantless searches (e.g., coal mines).

Executive Power

To perform these functions successfully, an agency must often obtain information from the persons and businesses under investigation as well as from other sources. If the required information is not supplied voluntarily, the agency may issue an administrative subpoena to search the business premises; this is called an administrative search.