LEGAL CHAPTER 15

review of rule making

(1) Is delegation valid? Delegation of quasi-legislative authority to administrative agencies is subject to two constitutional limitations (a) It must be definite - Delegation must set forth with sufficient clarity so that all concerned will be able to determine extent of authority (b)It must be limited (2) Has the agency exceeded its authority?

standing to sue

(1) Reviewability Is the action or decision of the agency subject to judicial review? Federal Administrative Procedure Act provides for judicial review except where (1) statutes preclude judicial review or (2) agency action is committed to agency discretion by law (2) Aggrieved party Is the plaintiff an aggrieved party? Must be harmed by administrative agency prove they were harmed by action / decision of administrative agency - economic loss or noneconomic loss

FDA VS. Brown and Williamson Tobacco Corp.

Administrative agency's ability to enforce laws through the executive branch must derive its authority from Congress Congress has chosen to control tobacco products separately from other similar products within the FDA's purview Concluded that under the NCDA that nicotine was a drug Made rules trying to protect youth Power exceeded that given to them by congress Cant exceed delegated authority

quasi judicial staff

Administrative law judges - perform the adjudicative fact-finding functions Protected from liability for damages based on their decisions (immunity) Hear cases of alleged law violations and apply law to the facts

investigating

Agencies can use their subpoena power and require reports, examine witnesses under oath and examine / copy documents or obtain info from other govt. offices

influencing agencies

Agencies give public notice of proposed rules and hold public hearings Interested parties present evidence in support or opposition to the regulation Agencies react to the force of public opinion Each branch of government has control over the administrative process

relating to procedures

Delay in the decision-making process Administrative process is overwhelmed with paperwork and meetings Rules and regulations are written in complex legal language Dictatorial in nature

relating to personnel

Difficulty in hiring and retaining the best qualified people Difficult to discharge unsatisfactory employees Personnel in top positions are selected for political reasons

review of factual determinations

Factual findings of an agency are presumed to be correct Courts don't (1) reweigh evidence (2) make independent determinations of fact (3) substitute their view of the evidence for that of the agency

organization of agencies

Five to seven members - one is appointed chair No more than a simple majority of the members (3 of 5 or 4 of 7) can belong to same political party Appointments at federal level require Senate confirmation Chairperson and Secretary Office of general counsel appointment requires Senate approval Chief law officer and legal adviser Represents agency in court and makes decision to file suit Advisory counsels are persons not employed by agency but interested in its mission Selected because of their expertise Executive director for administration is the chief operating official of an agency and supervises usual administrative functions such as accounting Quasi-judicial staff

reasons for agencies

Governmental agency exists because of a recognized problem in society Administrative agencies are needed to provide specificity, expertise, protection, regulation and services

powers of administrative agencies

Legislative - power to create rules and regulations Executive - power to investigate, prosecute, advise and supervise Judicial - power to decide controversies

advising

Make reports to president or Congress Courts don't issue advisory opinion Administrative agencies issue advisory opinion Helpful in giving businesses an idea of how an agency is going to view a certain scenario in combo with the rules they've set forth

Free Enterprise Fund VS. Public Company Accounting Oversight Board

PCAOB consists of 5 members who are appointed by Securities and Exchange Commissioners Board members serve 5 year staggered terms and aren't considered government officers or employers Challenged that board members aren't subject to the appointed powers of the President of the US PCAOB protected board members from removal except when a good cause standard was met Court ruled that the process of removal created by the Sarbanes-Oxley Act or the PCAOB unconstitutional

adjudicating

Quasi-judicial involves fact finding and apply law to the facts Cease and desist order - agency orders that a violator stop (cease) the objectionable activity and refrain (desist) from any further similar violations Many cases are settled by agreement Consent order - requires that the organization or individual accused admit to the jurisdiction of the agency and waive all rights to seek a judicial review

criticisms of administrative agencies

Relating to personnel Relating to procedures Relating to substance

functions of agencies

Rule making Adjudicating Advising Investigating

relating to substance

Rules and regulations overlap and conflict Actions for illegal conduct end only with consent orders Enforcement of laws varies over time

review of adjudications

Two doctrines guide courts in the judicial review of agency adjudication: (1) Exhaustion of remedies Limits when courts can review administrative decisions Exhaustion applies when a claim must go in the first instance to an administrative agency alone (2) Primary jurisdiction Applies when a claim is originally filed in the courts

exceptions to exhaustion of remedies

Was there a fundamental constitutional guarantee that was involved? Agency is acting beyond its jurisdiction; not authorized by statute or statute authorizing is unconstitutional If there is a reparable harm

quasi judicial

agencies can make decisions like a court

rule making

agencies exercise their quasi-legislative powers by issuing rules and regulations that have the force and effect of law Guidelines are administrative interpretations of the statues that an agency is responsible for enforcing

quasi legislative

agency can issue rules (regulations) that have the impact of laws

administrative agencies

boards, bureaus, commissions and organizations that make up the governmental bureaucracy Have either one or both types of regulatory authority: quasi legislative and quasi judicial

secretary

responsible for minutes and is legal custodian of its records; responsible for publication of all actions in the Federal Register

chairperson

same political party as president - nominated by president

Requirements that must be satisfied by the parties challenging an agency's rule-making function

standing to sue review of rule making review of adjudications review of factual determinations