BUL Chapter 6: Administrative Law

Administrative law

administrative
agency

Administrative Agencies exist at ALL levels of Government.

Agencies Provide Comprehensive Regulatory Scheme.
-Many businesses have incentive to influence the regulatory environment,

Cabinet-level departments of the Executive and their sub-departments.

Agencies outside the major executive departments such as the Federal Aviation Administration or the Federal Communications Commission.

Enabling Legislation

The Types of Agencies

Agency Powers and the Constitution

Law passed by Congress to specify the name, purposes, functions, and powers of administrative agency.

Federal administrative agencies may exercise only those powers that Congress has delegated to them in enabling legislation.

Through similar enabling acts, state legislatures create state administrative agencies.

Has the power to:

Create "rules and regulations for the purpose of carrying out the Act"

Conduct investigations of business practices.

To obtain reports from interstate corporations concerning their business practices.

To investigate possible violations of federal antitrust statues.

To publish findings of its investigations

To recommend new legislation

To hold trial-like hearings to resolve disputes.

All federal agencies must follow specific procedural requirements in rule making, adjudication, and other functions

In the absence of any clear direction from Congress the APA applies.

arbitrary
capricious

Three Steps:

1. Notice of the proposed rule making (NPRM)

2. Comment Period.

3. The Final Rule

Issue whether court should defer to an agency's Interpretation of the enabling legislation which gives it authority to act.

Why did the court uphold the agency's decision?

Conduct Inspection

Issue Subpoenas
-Subpoenas duces cecum requires production of documents.
-Subpoenas ad testificandum requires testimony.

Conduct Site Inspections (including warrantless)

Negotiate settlements

Formal Complaints

Hearing before Administrative Law Judge

Agency Orders

All three constitutionally created branches of government have some measure of control over administrative agencies.

"Exhaustion" Doctrine:
-requires an aggrieved party to exhaust all administrative remedies before going to court.

"Ripeness" Doctrine:
-a party seeking review must demonstrate standing to sue, there must be actual controversy at issue.

President power to appoint federal officers.

President's veto power

Enacting and changing enabling legislation

Determining funding for the agency

Investigating agency actions.

Freezing agency enforcement efforts before they take effect.

Amending the Administrative Procedures Act.

Freedom of Information Act

Government in the Sunshine Act.

Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act.

This legislation requires the federal government to disclose certain "records" to "any person" on request, even if no reason is given for the request.

All federal government agencies are required to make their records available electronically.

Legislation requires that "every portion of every meeting of an agency" be open to "public observation"

Adequate notice of meetings must be given to the public.

Closed meeting are authorized in a limited number of instances.

Act which requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives.

Small Business Regulatory Enforcement Fairness Act. Allows Congress to review new federal regulations for at least sixty-days before they can take effect.