Question 1

Why do we have administrative agencies?

Accepted Answer

agency creates detailed rules and regulations necessary to carry out the statue.

Question 2

Why are administrative agencies more equipped to perform their functions than congress or a state legislature?

Accepted Answer

Specialized personnel, has time, the resources and expertise to make detail decisions required for regulation

Question 3

At what levels of government do administrative agencies/entities exist?

Accepted Answer

Federal, state and local

Question 4

Which law prevails if a federal and state regulation conflict?

Accepted Answer

Federal law because rules of state and local vary widely

Question 5

Why are businesses motivated to influence regulations?

Accepted Answer

Due to the costs the business burden.

Question 6

How do congress and state legislatures create administrative agencies?

Accepted Answer

By delegating some of its authority to make and implement laws.

Question 7

What does enabling legislation specify about an agency?

Accepted Answer

specifies the name, purpose, functions, and powers of the agency being created

Question 8

What happens if an agency issues a rule that is beyond the scope of its enabling statute?

Accepted Answer

If the court determines an agency acted beyond the power granted under the agency's enabling statute, the court will hold the action (e.g., a rule) invalid

Question 9

Can an agency be successfully sued for failing to regulate?

Accepted Answer

Yes, Massachusetts v. EPA, the US Supreme Court 2007 (5-4)

Question 10

FTC (Federal Trade Commission) #1 Rule

Accepted Answer

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

Question 11

FTC (Federal Trade Commission) #2 Rule

Accepted Answer

Conduct Investigations of business practices.

Question 12

FTC (Federal Trade Commission) #3 Rule

Accepted Answer

Obtain reports from interstate corporations and concerning their business practices

Question 13

FTC (Federal Trade Commission) #4 Rule

Accepted Answer

Investigate possible violations of federal antitrust statutes.

Question 14

FTC (Federal Trade Commission) #5 Rule

Accepted Answer

Publish findings of its investigations.

Question 15

FTC (Federal Trade Commission) #6 Rule

Accepted Answer

Recommend new legislation

Question 16

FTC (Federal Trade Commission) #7 Rule

Accepted Answer

Hold trial-like hearings to resolve certain trade disputes that involve FTC or federal antitrust laws

Question 17

How many commissioners head the FTC?

Accepted Answer

5 Commissioners each serving 7-year term

Question 18

Executive Agencies

Accepted Answer

Single, can be removed by president at anytime,

Question 19

Independent Regulatory Agencies

Accepted Answer

Commission/Board, for cause

Question 20

Executive Agencies (Dependent)

Accepted Answer

assist the president in carrying out executive functions, and the subagencies; single administrator, director or secretary who is appointed by the president to oversee the agency and can be removed by the president at any time.

Question 21

independent regulatory agencies

Accepted Answer

outside federal executive departments. The president's power is less pronounced in regard to independent agencies, whose officers serve for fixed terms and cannot be removed without just cause.

Question 22

What three powers does a single agency have?

Accepted Answer

Legislative (rule making), Executive (enforcement), Judicial (adjudication)

Question 23

Legislative (rule making)

Accepted Answer

Make legislative rules that have the force of law (as binding as statute)

Question 24

Executive (enforcement)

Accepted Answer

inspect, monitor compliance, investigate

Question 25

Judicial (adjudication)

Accepted Answer

issue complaints, hold hearings ALJ, Issue orders

Question 26

Does the Constitution specifically refer to administrative agencies?

Accepted Answer

It does not

Question 27

Are legislative rules made by agencies as binding as laws passed by congress?

Accepted Answer

Are rules made in accordance with notice-and-comment rulemaking procedure and are as binding as laws passed by congress: HAVE THE FORCE AND EFFECTS OF LAWS

Question 28

Delegation Doctrine: What specific provision in the constitution (discussed in Ch.2) is interpreted by the court to give congress the power to establish administrative agencies and delegate rulemaking power to them?

Accepted Answer

Art. I of the constitution via grants of the legislative power to congress, requiring congress to oversee and the necessary & proper clause

Question 29

Why are agencies sometimes referred to as the “Fourth Branch” of government?

Accepted Answer

Because they have executive, legislative and judicial controls

Question 30

Executive controls

Accepted Answer

E.g., the president appoints agency heads; the president can veto enabling legislation

Question 31

Legislative controls:

Accepted Answer

Congress gives power to an agency through enabling legislation and can take power away

Question 32

Judicial controls:

Accepted Answer

review of agency actions, court can overturn agencies decision if they exceed its authority under the enabling statute.

Question 33

What does the “exhaustion” doctrine require a complaining party to do before they can appeal to a court?

Accepted Answer

The party seeking court review must first exhaust all administrative remedies; before seeking court review

Question 34

What is the court's standard (test) for setting aside (as unlawful) an agency rule?

Accepted Answer

arbitrary and capricious standard but the standard does not require that the court determine if the agency action was correct, only that it was reasonable

Question 35

What factors does a court consider in determining whether a rule is “arbitrary and capricious”?

Accepted Answer

Failure to provide a rational explanation, Policy change without justification, considered legally inappropriate factors, entirely failed to consider a relevant factor, decision was plainly contrary to the evidence

Question 36

What does “fair notice” require agencies to do when they make a policy change?

Accepted Answer

before change can be carried out, the agency must give fair notice of what conduct will be expected in the future.

Question 37

· Rulemaking: Describe the 3 basic phases (or steps) of the APA’s “Notice and Comment” rulemaking?

Accepted Answer

1.Notice of the proposed rulemaking 2. A comment period
3. The final rule

Question 38

What are rules called that are made in accordance with the above formal procedure?

Accepted Answer

Legislative Rules

Question 39

Where are notices of rulemaking and final rules published?

Accepted Answer

Federal Register

Question 40

Are these final rules as binding as laws passed by congress/legislatures?

Accepted Answer

Yes, you already answered this above but it's worth repeating!

Question 41

Why was the DEA’s interpretive rule concerning THC (Example 23.7,p.507) unenforceable? What specifically should the DEA have done differently?

Accepted Answer

The DEA informally published rules that banned the possessions and sales of HIA's food products. The should introduced the new rule through formal rulemaking procedures.

Question 42

interpretive rules

Accepted Answer

Administrative agency rules that simply declare policies or explain the agency's positions and do not establish any legal rights or obligations

Question 43

guidance documents

Accepted Answer

Clarify laws or regulations, to explain how compliance with the laws or regulations may be achieved, and to outline review and enforcement approaches

Question 44

Why should businesses nonetheless take note of informal agency actions such as interpretive rules and guidance documents?

Accepted Answer

Business should pay attention to interpretive rules because if ignored, the agency may decide to turn the interpretive rule into a legislative rule

Question 45

The investigation phase

Accepted Answer

what an agency uses to monitor whether a business is in compliance with its rules and with the enabling statute.

Question 46

Inspections/tests

Accepted Answer

Used to gather information and to correct or prevent undesirable conditions. Many agencies gather info through on-site inspections.

Question 47

What are subpoenas used for?

Accepted Answer

Compels an individual or organization to hand over books, papers, records, or documents to the agency. The agency may use either type of subpoena to obtain testimony or documents.

Question 48

What limits are there on the kind of information an agency can demand? (subpoenas)

Accepted Answer

1. the purpose of the investigation
2. the relevance of the information being sought
3. the specificity of the demand for testimony or documents.
4. The burden of the demand on the party from whom the information is sought.

Question 49

Are warrants required for administrative inspections?

Accepted Answer

No, but if a firm thinks the agency's request is unreasonable and disruptive, the firm may refuse to comply with the request. In situations, an agency may resort to the use of a subpoena or a search warrant.

Question 50

a. Are warrants required for inspections of highly regulated industries (firearms, liquor)?

Accepted Answer

Warrants are not required to conduct searches in highly regulated industries.

Question 51

When else are warrantless searches allowed?

Accepted Answer

Statute permits warrantless searches of certain types of hazardous operations, such as coal mines.

Question 52

How are most administrative actions resolved?

Accepted Answer

Most administrative actions are resolved through negotiated settlements at their initial stages.

Question 53

Why are negotiated settlements appealing to businesses and to agencies?

Accepted Answer

To conserve their resources and avoid formal actions.

Question 54

What will an agency do if efforts to negotiate a settlement fail?

Accepted Answer

If a settlement can not be agreed on, the case is adjudicated.

Question 55

Hearing before an Administrative Law Judge (ALJ):

Accepted Answer

1. Hearing before ALJ 2. ALJ issues order
3. Losing party appeals order to the governing board of the agency
4. Agency board issues final agency order
5. Losing party appeals to the court

Question 56

Keeping in mind that the ALJ works for the agency that is prosecuting the case, what safeguards are there to keep the ALJ from being biased in favor of the agency (p.509)?

Accepted Answer

The APA requires that the ALJ be separate from the investigative and prosecutorial staff. The APA also prohibits its ex parte (private) communications between the ALJ and the company involved. Finally, provisions of the APA protect the ALJ from agency disciplinary actions unless the agency can show good cause for such an action

Question 57

Hearing procedures: Contrast an informal and formal adjudication?

Accepted Answer

Informal: Counsel and the ALJ meet at a table in a conference room to resolve the dispute
Formal: resembles a trial

Question 58

Hearing procedures: Is discovery allowed prior to a formal adjudication before an ALJ?

Accepted Answer

Parties are permitted to undertake discovery; the process usually is not quite as extensive.

Question 59

What is a formal hearing like?

Accepted Answer

Complies with the with the procedural requirements of the APA and must also meet the constitutional standards of due process.

Question 60

Hearing Procedure: What is a significant difference between formal hearing and a trial (in a court proceeding)?

Accepted Answer

A significant difference is that normally much more information, including hearsay (secondhand information), can be introduced as evidence during an administrative hearing.

Question 61

Agency orders: What is an initial order and to whom can it be appealed first?

Accepted Answer

It is a decision; Either party can appeal the ALJ's decision to the board or commission that governs the agency.

Question 62

Agency Orders: Can the subsequent agency decision be appealed to a court?

Accepted Answer

Exhaustion Doctrine: • Before a party who disagrees with an agency action (decision) may appeal the action to the court, the party must make use of all available appeals within the agency: the party must exhaust all administrative remedies before appealing to the appropriate court.

Question 63

Agency Orders: How does an agency decision become a final order?

Accepted Answer

If no appeal, the initial order becomes the final order

Question 64

Public Accountability: FOIA: what does the statute require the govt. to do generally? Are there exemptions? Who uses FOIA? Where can denials be challenged?

Accepted Answer

government must disclose certain records to anyone; some exemptions such as ones pertaining to national security and those containing information that is confidential or personal;

chap 23 & 24

Order an Essay Now & Get These Features For Free: