question
What is an agency
answer
An official governmental body empowered with the authority to direct and supervise the implementation of specific legislative acts.
question
Where do agencies get this power
answer
Legislative branch
question
The type of power agencies has resembles all
answer
three branches of government
question
Agencies have the power to hear cases and render decisions. This is the -- branch
answer
judicial
question
Agencies can make rules and regulations. this is the --- branch
answer
legislative
question
Agencies can supervise in areas that require their expertise to full fill a public need. This is the --- branch
answer
executive
question
How old are agencys
answer
they have been around longer than states. 1789
question
What do agencies do?
answer
Set standards, prosecute, make rules and regulations, hear cases, make decisions, investigate complaints.
question
What is admin law
answer
A body of law developed to control and administer an agencies behaviors and functions
question
Admin law defines
answer
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
tells agency what their powers are and how to use them
put limitations on agencies power and dictates the procedure of the agency
question
Sources of Administrative Law
answer
Constitution
Enabling acts
Administrative Procedure Acts (APA)
Executive Orders
Enabling acts
Administrative Procedure Acts (APA)
Executive Orders
question
Constitution
answer
Largest source of admin law. Agencies are not mentioned in constitution. Articles 1-3 establish branches of government.
question
Enabling Acts
answer
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.
question
Administrative Procedure Act
answer
A federal statute that governs the way federal agencies may propose and establish regulations. Does not address specific agencies, agencies in general.
question
Agencies enabling act will ALWAYS trump the APA t/f
answer
True
question
Enabling is more specific and apa is more general t/f
answer
true
question
Executive Orders
answer
A written, signed, and published directive from the president that manages operations of the federal government.
question
Agencies can or cannot be created through executive order
answer
CAN
question
Agencies can be given specific responsibilities
answer
through executive orders
question
Executive orders --- Laws
answer
are not
question
Executive orders do not or need approval from congress
answer
do not need
question
can congress overturn an executive order
answer
no, but it can be challenged. The next president can overturn executive orders
question
Agency names
answer
Burrow
Department
Services
Commission
Council
Groups
Department
Services
Commission
Council
Groups
question
Agencies exist at both --- and --- level
answer
state and federal
question
Why do we need agencies?
answer
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
Expertise: the expertise of the agencies is necessary or required in order for our government to function
question
Types of agencies
answer
Social Welfare Agencies
Regulatory Agencies
Public Service Agencies
Regulatory Agencies
Public Service Agencies
question
Social welfare agency
answer
distribute funds, promote welfare of the people, and administer and provide assistance
question
Regulatory Agencies
answer
regulate a certain sector of the US economy, both public and private interest.
question
Public service agency
answer
provide services to the public. Do not distribute funds
question
Agencies are either
answer
Executive agencies or Independent agencies
question
Executive agencies
answer
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.
question
independent agencies
answer
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.
question
What is a democracy
answer
A form of direct popular government where the people vote on all important issues.
question
Current form of government
answer
democratic republic. People are not voting on all important issues, rather they are electing others (representatives) who vote on their behalf.
question
What type of balanced government is provided
answer
A horizontal form of government. All three branches are equal and do not outweigh eachother
question
What is federalism
answer
Looking at one area (US), federalism is when the same area is controlled by two levels of government. (State and federal government)
question
10th amendment
answer
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.
question
Necessary and proper clause
Can congress draft laws
Can congress draft laws
answer
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.
question
Supremacy clause
answer
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.
question
Does the supremacy clause give or not give the federal government the power to legislate areas it cannot control
answer
does not give the federal government the right to control
question
The commerce clause
answer
1. Gives the federal government the right to regulate interstate and foreign commerce.
question
Interstate commerce
answer
The movement of products/money between different states.
question
Preemption Doctrine
answer
i.The federal law is the supreme law of the land.
question
T/F i.Any federal law (includes rules and regulations from agencies) trumps any conflicting state law
answer
true
question
i. When there is an ---- of whether or not it is a state or federal law, the court will favor ---
answer
ambiguity, state law
question
Seperation of Powers
answer
i.Horizontal form of government
ii. No one branch has more power than the other
ii. No one branch has more power than the other
question
Controlling the bureaucracy, what does this mean
answer
The three branches of the government overseeing the governments actions is the way we control the bureaucracy.
question
Presidential Control
answer
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.
ii.President can oversee agencies through executive orders, can establish agencies, tell agencies what to do.
question
President has ability to
answer
nominate head of executive agencies
question
President is only able to
answer
veto or sign, cannot create a new law
question
Congressional Control
answer
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
ii.Most agencies are created by the legislative branch. Legislative branch has the ability to reorganize agencies
question
Legislative branch ---- the head of the agencies, president ---.
Legislative sets agency budgets and can --- agencies.
Legislative sets agency budgets and can --- agencies.
answer
CONFIRMS, NOMINATE, beakup
question
Bicameralism
answer
Legislative branch has two houses, the house, and the senate. No law shall be enacted without passing through both houses
question
How a bill becomes a law
answer
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.
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.
question
What is discretion
answer
The ability and opportunity for an agency to make choices between alternative agency actions.
question
When agencies get to make decisions, agencies use their
answer
expertise
question
Most agencies are---
which means
which means
answer
informal, agencies are allowed to use their discretion.
question
In formal agency actions, agencies --- use their discretion and have been told what to do by ---
answer
cannot, congress
question
Informal procedures are the --- of the --- process
answer
life blood, administrative
question
most agencies are -- because they are experts
answer
informal
question
without discretion, agencies are
answer
useless.
question
4 questions to ask about discretion
answer
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.
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.
question
benefit of discretion
answer
1. necessary for the existence of the agency. Without discretion agencies are useless.
question
Disadvantages
answer
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.
2. Decisions can lean one way, or another politically based on who is president at the time.
question
Chevron Test
answer
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.
ii. If there is an allegation that an agency abused its discretion, the court is going to apply this test.
question
Chevron test questions
answer
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.
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.
question
Courts can base their decision on two things
answer
1. expertise of the agency. Agency experts are better equip to make a decision than generalist judges.
2. based their decision on democratic accountability
2. based their decision on democratic accountability
question
Prosecutorial
answer
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.
question
Agencies handle administrative aspects of violations
answer
True
question
When does discretion come into play when prosecuting
answer
Agencies can use it to determine who to investigate, who to prosecute, and whether or not to settle.
question
What factors go need to be considered when determing who to prosecute?
answer
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
question
Can agencies investigate all who file a complaint
answer
no
question
Agencies are often empowered by congress to ---- regulations that ----
answer
promulgate, further their mandate
question
Agencies are empowered by -----
answer
congress to make rules
question
If agencies are giving the power to make substantive rules,
answer
courts are going to allow agency to interpret the power given to them by congress
question
When will courts step in
answer
when agency has abused its discretion. Ultraverius matter.
question
Claims and applicaitons
answer
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.
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.
question
Protective Actions
answer
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.
question
Tests and inspections
answer
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.
question
Advisory Opinions
Declaratory orders
Declaratory orders
answer
Nonbinding
Binding
Binding
question
Advisory opinions
answer
Advisory opinions are requested more than Declaratory Orders. You can request advisory if you do not understand something or need advice.
question
Declatory Orders
answer
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.
question
Mediation-Arbitration
answer
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.
When these processes are used by agencies is generally to their discretion.