chapter 1-3 admin law

An official governmental body empowered with the authority to direct and supervise the implementation of specific legislative acts.

Legislative branch

three branches of government

judicial

legislative

executive

they have been around longer than states. 1789

Set standards, prosecute, make rules and regulations, hear cases, make decisions, investigate complaints.

A body of law developed to control and administer an agencies behaviors and functions

the legal powers of an agency

tells agency what their powers are and how to use them

put limitations on agencies power and dictates the procedure of the agency

Constitution

Enabling acts

Administrative Procedure Acts (APA)

Executive Orders

Largest source of admin law. Agencies are not mentioned in constitution. Articles 1-3 establish branches of government.

Give agencies specific powers and dictate their responsibilities and authority. Power agencies and impose limitations and restraints on agencies/ Dictates how courts can review agencies decisions.

A federal statute that governs the way federal agencies may propose and establish regulations. Does not address specific agencies, agencies in general.

True

true

A written, signed, and published directive from the president that manages operations of the federal government.

CAN

through executive orders

are not

do not need

no, but it can be challenged. The next president can overturn executive orders

Burrow
Department
Services
Commission
Council
Groups

state and federal

Size: the roll and responsibility of the government has gotten too big for our three branches
Expertise: the expertise of the agencies is necessary or required in order for our government to function

Social Welfare Agencies
Regulatory Agencies
Public Service Agencies

distribute funds, promote welfare of the people, and administer and provide assistance

regulate a certain sector of the US economy, both public and private interest.

provide services to the public. Do not distribute funds

Executive agencies or Independent agencies

fall under the executive branch of either state or federal. The head of the agency is nominated by the president and confirmed with the senate. Head of agency is referred to as secretary.

Independent of presidential control. Sometimes called commissions. head of independent agencies can only be removed for "just cause." Sometimes run by group rather than individual.

A form of direct popular government where the people vote on all important issues.

democratic republic. People are not voting on all important issues, rather they are electing others (representatives) who vote on their behalf.

A horizontal form of government. All three branches are equal and do not outweigh eachother

Looking at one area (US), federalism is when the same area is controlled by two levels of government. (State and federal government)

Bill of right. The certain powers are reserved for the federal government, these powers must be specifically stated. If they are not, the powers are reserved for the states. Helps the state from being overpowered by federal.

Sometimes referred to as elastic clause or the sweeping clause. Means this clause holds an immense amount of power. Article 1 creates the legislative branch. It empowers congress to make any laws necessary for carrying out its other powers. This means congress can draft laws.

1. Tells you that federal law is the supreme law of the land. This means federal law shall preempt or trump state and local laws. Federal law will trump state law when federal law has the right to trump that area.

does not give the federal government the right to control

1. Gives the federal government the right to regulate interstate and foreign commerce.

The movement of products/money between different states.

i.The federal law is the supreme law of the land.

true

ambiguity, state law

i.Horizontal form of government
ii. No one branch has more power than the other

The three branches of the government overseeing the governments actions is the way we control the bureaucracy.

i.The president is the head of all executive agencies
ii.President can oversee agencies through executive orders, can establish agencies, tell agencies what to do.

nominate head of executive agencies

veto or sign, cannot create a new law

i.Legislative of all three branches has the greatest ability to control bureaucracy
ii.Most agencies are created by the legislative branch. Legislative branch has the ability to reorganize agencies

CONFIRMS, NOMINATE, beakup

Legislative branch has two houses, the house, and the senate. No law shall be enacted without passing through both houses

1. Idea: can come from anyone.
2. Next it goes to committee: lots of ideas die in committee, if it gains traction and does not die then it goes to house floor/senate floor.
3. Senate/house floor: House votes on the bill. If majority wins it goes to the other house (senate) Senate votes, if majority wins it goes to President.
President can veto, sign, do nothing (which is considered a veto if ignored enough) If president veto's, is it for sure dead? NO.
4. Override of Veto: difficult to do but if you get 2/3 of a vote or greater in both houses, it will override president veto.

The ability and opportunity for an agency to make choices between alternative agency actions.

expertise

informal, agencies are allowed to use their discretion.

cannot, congress

life blood, administrative

informal

useless.

i. Reviewability: is an agency decision based on discretion reviewable? No. Not reviewable by the courts unless there was an abuse of discretion. If you are alleging an abusive discretion, you have to go through the agency first and then the courts. Exhaustion of remedies.

ii. What is discretion based on? Expertise. We want the experts making the decisions.

iii. Is it necessary? "Informal procedures are the life blood of the administrative process" Necessary because congress cannot be specific enough to address every issue. It is presumed that agency decisions based on discretion will follow some sort of regulatory.

iv. When are agencies using their discretion? In informal procedures. EX: processing complaints and claims, informal hearings, negotiations, policy making.

1. necessary for the existence of the agency. Without discretion agencies are useless.

1. arbitrary decision making. Hard to allege an abuse of discretion. If somebody has a problem with a decision of discretion it is hard to find someone to listen. Most agencies are executive in nature.
2. Decisions can lean one way, or another politically based on who is president at the time.

i. When there is litigation over the actions of a federal agency, the courts will apply this test to determine if the agency acted appropriately.
ii. If there is an allegation that an agency abused its discretion, the court is going to apply this test.

1. Did congress speak directly to this precise issue (via Law)? Yes or no. If yes, then #2
2. Is the intent of congress clear? If yes, the agency must follow that intent. The agency cannot use discretion.
3. If congresses intent was not clear, courts will use the phrase "the statute is silent, the statute is ambiguous" then agencies can use their discretion.

1. expertise of the agency. Agency experts are better equip to make a decision than generalist judges.
2. based their decision on democratic accountability

i. Certain agencies do have the power to prosecute. Agencies have the power to investigate. A law enforcement type function is what this means. Agency will turn up a violation which will then lead to criminal conduct and then will go to another agency.

True

Agencies can use it to determine who to investigate, who to prosecute, and whether or not to settle.

The likelihood of uncovering a violation, consider how serious the violation is, the expense of the investigation, how likely are we to succeed. This is because agencies do not have all the resources to investigate every complaint

no

promulgate, further their mandate

congress to make rules

courts are going to allow agency to interpret the power given to them by congress

when agency has abused its discretion. Ultraverius matter.

each agency has the ability to determine its own methods for processing applications.

Courts aren't going to medal into how agencies process application. This does not mean that agencies can do whatever they want they still have to follow Constitution.

i. Health, safety, and economic wellbeing of the public. Companies that handle recalls for products and food. How agencies process recalls and applications for licenses. This is up to the discretion of the agency and courts do not get involved typically.

i. Everything that is tested by agencies: water, food, drugs, etc. Courts will not get involved. They will address the scientific elements but nothing else.

Nonbinding

Binding

Advisory opinions are requested more than Declaratory Orders. You can request advisory if you do not understand something or need advice.

Request opinions or declaratory orders for help if there are rules change. . Declaratory requires an actual case with an agency. Declaratory states something you MUST do.

They both are alternatives to lawsuits. Used heavily by agencies. Mediation is not binding meaning whatever is recommended the parties do not have to follow it. Settlement will not be forced on the parties. Arbitration is when a case is ordered to arbitrate (3rd party will decide the case).

When these processes are used by agencies is generally to their discretion.