Chapter 8 - Administrative Law

What is the purposes of Administrative agencies?

(1) Guard the consuming public against the actions of overzealous members of the business community (2) Administrative agencies possess proficiency acting as the experts in certain subjects (3) Provide greater certainty in the rulings and regulations they create as they know more in the subject leaving less area for uncertainty and need of courts to dispute matters (4) supply information to the business community and the public

Act is supposed to produce "fair administrative procedure" by doing four specific things:

(1) Require agencies to keep the public informed re: procedure, organization & rules (2) Develop methods of allowing public participation in the rulemaking process (3) Production of uniformed standards for agency rulemakings and adjudications (4) Defines the scope of judicial review over agency decisions

ad testificandum = duces tecum =

(1) compel testimony (2) produce documents

Enabling legislation -

A statute that can create an administrative agency + determines the scope of power granted to that agency

Why was the APA passed?

APA was intended by Congress to provide a reasonably uniformed set of rules for federal administrative agencies, by which they must conduct their business. APA automatically applies to an agency unless it has been specifically exempted by Congress (which isn't often)

What is the enforcement function?

Investigate alleged instances where laws or ruled are violated + imposing sanctions or orders to cease/desist

What does the APA overall do?

It brings an established, predictable order to what might otherwise be a highly chaotic and different mixture of many different bureaucratic processes in the vastness of the American administrative universe.

Subpoenas -

Process that requires a person to testify or provide physical evidence at a hearing

Privacy Act of 1974 -

Protects the confidentiality of private information collected by federal government agencies and provides a mechanism for citizens to correct info that was submitted to an agency Also limits info that can be gathered about individuals

Formal rulemaking?

takes place in a forum that looks & operates very much like a court, with 1 or more Administrative Law judges (ALJ's) presiding, & proceeds in four steps: 1.) Publication of proposed rules in the Federal Register 2.) Mandatory hearing (agency makes presentations, witnesses, cross-exam, evidence) 3.) A report is issued by the agency based on the record created at hearing 4.) Agency withdraws, restudies, amends, or proceeds with current draft-final rule in Federal Register

Administrative Procedure Act -

An act of Congress which provides that all federal administrative agencies will act with uniformity and fairness

Flip for a simple explantion of the Chevron deference

Chevron deference is due to an agency's decision-making, the Court said, after courts in future cases go through a simple two-step test. First, the court looks to the specific legislative language of the relevant statute to see if Congress has spoken specifically to the issue at hand in the statute. If it has, the analysis ends there and the court is bound by Congress' determina-tion(s). If Congress has not spoken to the issue in statute, then the court proceeds to the second step of the analysis: is the agency's response to or interpretation of the statute a permissible one, i.e. within the bounds of reason? If the answer to that question is "yes," then the court defers to the agency's decision and rules in its favor.

Why do administrative agencies violate separation of powers?

Because they often perform all 3 acts of legislative, judicial, and executive

Max Weber =

Bureaucracy all business tasks must be divided among the employees. The basis for the division of tasks should be competencies and functional specializations.

Informal rulemaking ("notice and comment")?

By contrast, often takes the form of notice and comment rulemaking: 1.) Agency provides notice of the proposed rule in the Federal Register 2.) A public comment period of at least 30 days is provided; these days, usually via email Publication of final rule in Federal Register, w/"statement of purpose & basis"

What is the nondelegation doctrine?

Congress can't delegate its legislative powers to another branch.

What are independent agencies? How can independent agencies be further classified?

Congress has decided given the subject matter the agency will be dealing with to try to insulate the agency to do its best work that provides some protection from the partisan shifts in government Regulation agency - Involves regulation, oversight, and enforcement. Ex.) FTC, NLRB, SEC Government Corporations - Provide essential services to the public AmTrak, USPS, FDIC

Intelligible Principle Standard Test -

Congress has to tell an agency what they are responsible for and has to give it an it an intelligible principle to enact the law

Explain the fifth amendment with regards to self-incrimination in the context of administrative agencies

Corporations do not have the right of protecting against self-incrimination The fifth amendment provides modest protection because amendment protections are inapplicable to records kept for purely regulatory or customary reason

Inspections -

Determines if any administrative rules have been violated or if any valuable information can be obtained that will cause the agency to propose new rules or alter current rules

What is the rulemaking function?

Divided into formal and informal processes; an agency's enabling statute or subsequent legislation will determine which type they have to use for what types of rules they're trying to issue. Most of the time, this will be informal rulemaking.

Freedom of Information Act (1966) -

Empowers private citizens with the tools to request information from the federal government *** not all info is available for disclosure ex.) - national security & foreign policy - trade secrets - inter-agency documents detailing internal deliberations - unwarranted invasions of personal privacy - law enforcement info *** note that states can deny info to out-of state residents

J.W. Hampton, Jr. & Co. v. United States (1928)

Establishes the "intelligible principle", Therefore, Congress cannot give an outside agency free reign to make law, but it can authorize the agency to flesh out the details of a law Congress has already put in place. In this case the executive branch was enforcing legislation instead of creating new legislation, by changing the tariff under the law that was passed by Congress.

How can administrative agencies be classified?

Executive agencies and Independent agencies

What is the adjudicatory function?

Hear cases of alleged law or rule violations brought by the agency Issue ruling as to the facts an order regarding the application of the law or rule to the facts Provide opportunity to appeal

Hybrid Rulemaking -

Mix between formal and informal rulemaking Requires notice and hearing, no cross-examination of witnesses though Apply the substantial evidence test to see if there is a strong enough arguement to pass it

Do administrative agencies need probable cause to open an investigation into something? What is the information gathering process gathered through (2 things)

No Inspections & Subpoenas

When do you have the right to a jury in adjudications?

Only adjudications involving an individual or business being accused of a crime may be entitled to a trial by jury Because many adjudications came after Constitution, there is no right to a jury for violating an administrative rule even if it includes prison time

What is a personal subpoena (subpoena ad testificandum)? What is a subpoena duces tectum?

Order from the agency to compel an unwilling witness to testify under oath at a hearing Forces an individual or entity to produce doctrines / physical evidence

What is the arbitrary and capricious test for informal rule making?

Requires a court to overturn a newly crafted agency rule only where there is a showing of no factual basis for the rule

What are the three function of administrative agencies?

Rule making function Enforcement function Adjudicatory function

Small Business Regulatory Enforcement Fairness Act (1996) -

SBREFA or the Congressional Review Act was enacted to modify and clarify the Regulatory Flexibility Act of 1980, requiring administrative agencies to conduct a "regulatory flexibility analysis" prior to imposing new rules to determine the impact on small-scale businesses. SBREFA requires agencies to report the rule to Congress before adopting it, and if Congress rejects the implementation of the rule within 60 days of notification, the rule cannot go into effect. This act reflects congressional ambivalence at excessive government regulation that can stifle small businesses and startups.

What is a modified warrant and when is it required?

Since technically an administrative rule is not a criminal provision, and administrative enforcement personnel are not law enforcement officers, they do not technically need a warrant. HOWEVER , courts have generally agreed that because govt. action can be taken if there is a violation, a modified warrant is required to conduct the search

Significance of both the Federal Register and Code of Federal Regulations

The Federal Register and Code of Federal Regulations (CFR) are two important sources of information about the federal government's regulatory activities in the United States. The Federal Register is a daily publication that provides public notice of proposed and final regulations, as well as other government documents such as presidential proclamations and executive orders. The CFR, on the other hand, is an annual publication that contains the full text of all federal regulations currently in effect, organized by subject matter.

Standing -

The requirement that the individual wishing to employ the powers of the judiciary must show a real or potential injury While it doesn't have to be them directly, it must be at least for those who are to benefit from the action

What are the powers given for adjudicatory functions?

Types of enforcement powers typically granted to regulatory agencies: (1)investigation (2) inspection (3) search warrants (but 4th Amendment protections attached), (4) subpoena (ad testificandum = compel testimony; duces tecum = produce documents)

What is the one exception for the rule that says a department is run by "secretary of ___"

US Department of Justice as the head of the department is the Attorney General

Formal adjudication -

Very much like a regular court proceeding, presided over by an ALJ - but there is NO jury. The ALJ will prepare findings of fact and conclusions of law as they apply to the stated facts he/she then imposes a penalty or remedy as provided by law (if appropriate)

Exhaustion doctrine -

a party has no ability to appeal agency decision to the judiciary until and unless all exhaust administrative remedies have been tried first. Courts will not typically disturb the decision from an agency adjudication unless the decision is arbitrary and capricious, or violates other rules of law

Administrative agency adjudication -

a trial-like procedure that is employed as the principal mechanism agencies use to enforce their actions

Administrative agency "bureaucracies" -

are entities of government charged by the legislature with implementing, administering and (often) adjudicating violations of certain statutes or parts thereof which fall within their jurisdiction or expertise. ex.) Nasa, FBI

What are executive agencies?

function within a cabinet department (FDA - DHSS, PTO - Commerce) *** Can tell if it says "department of ..." *** Run by individuals who title is "secretary of ____" ***

Chevron doctrine:

challenges to an agency's interpretations / reinterpretations of a federal law the agency itself is responsible for overseeing will not be successful of the agency's interpretation is objectively reasonable

Informal adjudications -

no specific procedure required by APA; agencies are free to create their own processes (usually before an agency "hearings officer") as long as basic due process rules are followed (notice, fair hearing, opportunity to present defense)

Open Government Act (2007) -

requires each agency to designate a FOIA liaison to resolve disputes; standardized annual reporting requirements for each agency's FOIA program; and a reason be given for any deletion made in a disclosed document

Regulatory Flexibility Act (Comes before SBREFA)

requires federal agencies to consider impact of new regulations on small businesses, specifically by (1) soliciting feedback from them, (2) requesting guidance from Small Business Administration (SBA) on the proposed rule, and (3) producing and publishing (in the Federal Register) an initial regulatory flexibility analysis (IRFA) detailing impact on and assessment of small business under the rule

Sunshine Act (1976) -

requires that most government meetings be conducted in public and that notice of such meetings be posted in advance *** note that does not require that the public cans speak at meetings

Appeals from administrative adjudications must go where...

to the agency head of the agency's governing body, if appropriate