Chapter 8: Administrative Law

The body of Legally enforceable rules and regulations, by civil or criminal corrective action, developed and made affected by agencies at both the federal and the state levels in the US

(sometimes called "bureaucracies"), in turn, are entities of government charged by the legislature with implementing, administering and (often) adjudicating violations of certain statutes or parts thereof which fail within their jurisdiction or expertise.

sometimes called bureaucracies

a statute that creates an administrative agency and determines the scope of power granted to that organization.
This statute will determine the purpose and scope of activity within which the agency will function.
not only establishes the agency but also delegates the power to regulate in a specific area to the agency

function within a cabinet department (FDA-DHSS, PTO-Commerce)
Their heads typically serve at the pleasure of the president and can be removed at the president's discretion.

additional agencies created by Congress located outside the Cabinet departments

the body of government that makes public policy

these agencies carry out those policy goals as determined by congress

states that congress can't delegate tariff power to the executive
If Congress collectively decides to hand certain of their decision-making Powers over to other branches to execute on their behalf, which is the heart of virtually all modern administrative actions, they may do so by passing a law- which is the heart of the proper exercise of legislative power which Hampton was questioning- that clearly and specifically authorizes the recipient of those Powers (the bureaucracy, or the president) to do so. Additionally, it cannot be merely a general hand off of undirected or ambiguous power

Congress must specify the agency that is supposed to perform tasks, the public policy it will be working on, and boundaries and limitations on what it can do (when agency acts it must stay within the boundaries given by congress)

an act of congress which provides that all federal administrative agencies will act with uniformity and fairness. The purpose was to guarantee uniformity and fairness to all who are called to deal with federal administrative agencies

this function of administrative agencies includes:
Study a particular social problem
Formulate a draft of administrative rules
Solicit public comments on proposed rules
Promulgate rules

this function of administrative agencies includes:
Investigate alleged instances where laws or rules are violated
Impose sanctions or orders to cease and desist

this function of administrative agencies includes:
Hear cases of alleged law or rule violations brought by the agency
Issue ruling as to the facts and order regarding the application of the law or rule to the facts
Provide opportunity to appeal

divided into formal and informal processes; In agencies enabling statute or subsequent legislation will determine which type they have to use for what types of rules for trying to issue. Most of the time, this will be informal

takes place in a forum that looks and operates very much like a quart, with one or more administrative law judges (ALJs) presiding, and proceedings in 4 steps.

often takes the form of notice and comment rule making. Three advantages from the agency's standpoint to this process:
1. usually swift
2. efficient
3. courts adopt the least rigorous test for determining whether an agency acted properly and promulgating a rule under this process

A blend of informal and formal rulemaking. The typical format requires notice and a hearing, but the hearing is not as expensive as that provided under formal rulemaking. cross-examination of witnesses is eliminated. The courts reviewing agency rules generated through this process applied the substantial evidence test. With growing concerns associated with both formal and informal rulemaking, the hybrid rulemaking process may become more popular.

a trial-like procedure that is employed as the principal mechanism agencies use to enforce their actions. like rulemakings, come in both formal and informal varieties

type of adjudication that is 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).

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

types of these powers include:
investigations
inspections
search warrants
subpeona

Agencies employ these towards businesses for two purposes. First, to determine if statute or administrative rules have been violated. Also, valuable information can be obtained through these that will cause the agency to propose new rules, alter existing rules, or make other adjustments to the regulatory environment. Fourth Amendment may provide an individual or business with protection from unreasonable searches and seizures.

(1) Establish that the purpose of the investigation is legitimate (2) possess the power to conduct an investigation of the type specified (3) describe the information being sought (4) explain the relationship between the purpose of the investigation and the information being sought (5) show that the information being demanded does not create an unreasonable burden on the individual or entity possessing such information

a personal subpoena, also known as this, is an order from the agency to compel an unwilling witness to testify under oath at an administrative agency hearing

type of subpoena that is used to force an individual or entity to produce documents or other physical evidence that might be germane to an investigation

Under the 4th amendment to the Constitution, the government is prohibited from conducting unreasonable searches and seizures that could produce evidence relating to a violation of a criminal law
The prime component of the fourth amendment is the requirement that the government secure this from a judge that instructs law enforcement personnel to search a particular area for specific items.

testifying against oneself

in administrative law means that a party has no ability to appeal agency decisions to the Judiciary until and unless all available 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 roles of law.

those policies and procedures an administrative agency adopts for its in-house operation. Knowing how an administrative agency operates is extremely important to the business community that must deal with a particular Agency

provide the public with the processes associated with various agency functions and, most critically, those opportunities for interchange with individuals and Commercial Enterprises

guidelines, and forms suggestions, from an administrative agency to those members of society regulated by the agency

if formed in the proper manner, are a direct extension of the legislative act an agency is created to administer and, therefore, have the force and effect of law
require that they be created with greater formality and with considerable participation from the sector of the public that will be regulated. The APA applies to the creation and operation of these types of rules.

what are the two types of investigate powers

what are the three types of constitutional protections

Before a party can proceed to court, all methods of adjudicating the dispute within the administrative agencies established processes must be employed. A major advantage to this process is that a paper trail is created within the adjudicatory process that can be used by the agency, the party objecting, in the court once a dispute moves from the administrative agency to the judicial system

generally requires that the individual wishes to employ the power of the Judiciary must show an injury. The real or potential injury does not have to be to them personally however, it must have occurred to those who are to be the beneficiaries of agency action

The scope of this doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.

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' determinations. If Congress has not spoken to the issue and statute, then the court proceeds to the second step in the analysis: is the agency's response to or interpretation of the statute a permissible one, example 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.

empowers private citizens with the tools to request information from the federal government. The process is quite simple. A person or business sends a letter to the director or management of an agency and requests information regarding a particular topic. The agency then has 10 days to respond. It may state its intention to release the information and then do so. If the agency fails to respond or denies the request, the person or business making the request may either appeal the decision within the agency or sue in federal court for the information.

act that protects the confidentiality of private information collected by federal government agencies and provides a mechanism for citizens to correct information that was submitted to an agency.
also limits the information that could be gathered about individuals. Generally, records and other information of an individual may be disclosed only upon the written permission of that person. A host of exceptions exist, including for law enforcement.

act that recognizes the appearance of impropriety that may accompany the decision of the government to act in secrecy. This act requires, with exemptions, that meetings of administrative agencies must be open to the public. Note, however, that this legislation does not require that the public have a right to speak at the meetings or otherwise participate- only that it may attend.

That openness promotes Effectiveness in our national government Act of 2007 requires, among other things, that each agency designate a "FOIA public liaison" to assist in resolving disputes, that all agencies standardized annual reporting requirements for each agencies FOIA program, in that agency specify the exact exemption they are asserting for any Galician make and disclosed documents.

basically builds on the foundation that RFA originally established): A separate act that amended RFA in several ways considered advantages to small business interest, including giving federal courts jurisdiction to monitor agency compliance with RFA, creation of small business advocacy review panels with EPA and OSHA, and requiring panels to consult with SB interest on regulatory impact (help SB comply with regulations) prior to publication of the proposed rule(s) in the Federal Register
More recent reform oriented toward small businesses

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) and initial regulatory flexibility analysis (prepared in order to ensure that the agency has considered all reasonable regulatory alternatives that would minimize the rule's economic burdens or increase its benefits for the affected small entities, wide achieving the objectives of the rule or statute) (IRFA) detailing impact on an assessment of small business under the rule.
More recent reform oriented toward small businesses

prepared in order to ensure that the agency has considered all reasonable regulatory alternatives that would minimize the rule's economic burdens or increase its benefits for the affected small entities, wide achieving the objectives of the rule or statute