Chapter 7: Administrative Law
Enabling Legislation
-Congress passes enabling legislation specifying the name, composition, and powers of the agency
Investigative Power
-Enforcement -For planned annual inspections, you do not need a warrant and you must allow them in
Before you can appeal, there must be:
-Exhaustion of administrative remedies -Ripe for Review: controversy is now fixed, nothing else to be done -Standing to Sue: plaintiff is an aggrieved party whose interested have been substantially affected by the agency action
Standards of Review for Agency Violations
-First level of Adjudiatory power is heard in the agency (equivalent of a trial); factual issues are confirmed -When the case comes out of an agency, it goes to the Court of Appeals becasue you have already had your trial.
Limitations of Subpoenas
-Investigations must be authorized by law and conducted for a legitimate purpose -The investigation must be related to that pupose -Demands must be sufficiently specific and not unreasonably burdensome -The information must not be privileged or self inciminatory
Adjudicatory Power
-Judicial -hearing is held in the agency venue
Types of Power
-Legislative Power -Investigative Power (Enforcement) -Adjudicatory Power (Judicial)
Informal Rulemaking
-Method most commonly used by agences that are not forced by their enabling legislation to follow the stricter procedures of formal rulemaking -Begins with notice in the Federal Register, followed by a comment period and then published regulation
Searches and Seizures
-Must be a substantial government interest in the regulatory scheme in action -The warrantless inspections must be necessary to further the scheme -Must provide a constitutionally adequate substitu for a warrant by giving them notice that their property is going to be inspected.
Legislative Power
-Rule Making -must comply with due process (notice via the Federal Register and the opportunity to be heard via comments and hearings) -Final rule published and then codified at the end of the year in the Code of Federal Regulations
How to they compel unwilling possessors of information to comply?
-Searches and Seizures -Subpoena
Constraints on Agencies
1. Constitution 2. They can only act within their delegated authority -If you want to challege agency regulation, saying the regulation is outside of their powers is the best argument -Courts almost always defer to the expertise of the agency unless the agency's interpretation is outside their bounds of reasonable interpretation 3. The Administrative Procedure Act
Hybrid Rulemaking Process
A rule making process that combines formal and informal elements. Both hybrid and formal involve some sort of hearing, but hybrid tends to limit the cross examinations of interested parties
Subpoenas
Ad Testificandum: compel unwilling witnesses to testify Duces Tecum: compel production of most types of documents
Agencies and the Constitution
Administrative action is government action that is subject to basic constitutional checks -Bound by basic guarantees such as due process, equal protection, and freedom of speech
Executive Agencies
Administrative agencies that reside within the executive office or within the executive departments of the President's cabinet -Their administrative heads serve at the pleasure of the president and are appointed/removed at his will.
Investigative Power
Agencies need to obtain accurate information about business activities and behavior. Sometimes, this information can only come from sources that may be strongly disinclined to provide it.
Agency Organization
An agency's organizational structure is largely a function of it's regulatory mission.
Rule Making Power
An agency's rules making power desrives from their enabling legislation
Administrative Agencies are created when:
Congress passes enabling legislation specifying the name, composition, and powers of the agency
How do courts evaluate the cases that come out of the agencies?
De Novo Review: redo trial, disregard first trial (very uncommon) Substantial Evidence Test: a little more than the preponderance of the evidence Arbitrary and Capricious Test: used for informal rules, the least strict
Formal Rulemaking Process
Designed to give interested parties a chance to be heard -Must be a public hearing announced and at the end of the hearing, the agency must prepare a formal document detailing its findings -There is some risk that the parties will abuse their rights to impede the regulatory process
2 Types
Executive Agencies and Independent Agencies
The fundamental problem in administrative law
How to design a system of control over agency action that minimizes the potential for harm yet preserves the power and flexibility that make agencies such a valuable instrument of public policy.
Why do agencies favor informal rulemaking?
It is quick and effecient but this limits the opportunity for interested parties to participate in the process
Discretionary Powers
Powers that necessitate the exercise of significant discretion and judgment when they are employed.
Types of RUles
Procedural Rules: specify how the agency will conduct itself Interpretive Rules: advise regulated industries of the manner to interpret the statues it enforces Legislative Rules: regulatory rules that must be consistent with the enabling legislation and are not binding on public
Separation of Powers
The congressional delegation of legislative power to an agency in its enabling legislation may be challenged as violating the separation of power principle. -Courts tend to approve broad delegations of power to guide agency actions.
Administrative agencies are not specifically mentioned in the Constitution
There is legislation passed that enables the agencies to regulate
Independent Agencies
Usually headed by a board whose members are appointed by the President with the advice and consent of the Senate. -Board members are appointed for fixed terms and can only be removed for cause -Enabling legislation often requires a balance between political parties
Ministerial Power
concerned primarily with the routine performance of duties imposed by law.
