Types of regulatory authority: either have one or both
-Quasi-legislative
-Quasi-judicial
Create. and enforce laws constituting the legal environment of business
Over 400 at the federal level
Lots of power
Quasi-legislative: make rules and regulations, you have to follow them or you're in violation of the law
Quasi-judicial: they have court hearings, decisions are binding, make decisions like a court
Provide Expertise
Provide Protection
Provide Regulation
Provide Services
Congress cannot possible legislate in minute detail, and as a consequence, it uses more and more general language in stating its regulatory aims and processes
Courts cannot handle all disputes and controversies that may arise
They are experts in their field
Allows for consistency and continuity in the formulation, application, and enforcement of rules and regulations governing business
The development of sound policies and proper decisions in many areas requires expertise, and we tend to resort to administrative agencies for expertise
Business often fails to regulate itself, and the lack of self-regulation is contract to the public interest
Americans tend to a governmental agency for assistance whenever a business or business practice may injure significant numbers of the general public
When a firm is given monopoly power, it loses its freedom of contract and a governmental body is given the power to determine the provisions outfits contracts
Administrative agency regulates monopoly
Example: United States Postal Service
Adjudicating
Advising
Investigating
An agency's quasi-legislative power to issue rules and regulations that have force and effect of law
Rules can either be general or specific
Number of rules and regulations grow exponentially everyday
Guidelines are also issued by agencies to supplement rules
help businesses determine whether certain practices may or may not be viewed as legal
they are not the law, they are just guidelines. they are helpful
quasi-judicial function
-fact finding and apply the law to the facts if they find a violation of the law
they can sanction, fine, and issue cease and desist
Cease and Desist: Stop and don't do it again
Most cases in front of an administrative agency are settled by a consent order before a final decision
requires an organization or individual accuse admit to the jurisdiction of the agency and waive all rights to seek judicial review
There is no admission that the business has been guilty of a violation of the law, but there is an agreement not to engage in the business activities that were subject of the complaint
Saves considerable expense and has the same legal force and effect as a final cease and desist order`
Provide reports to the President or Congress
can propose new legistlation to Congress
can inform the attorney general of the need for judicial action due to violations of the law
Report information to the general public that should be known in public interest
Publish Advisory Opinons
Do not carry the same weight as a rule
They give a business an indication of the view an agency would take if the practice question were challenged formally
Example: "If I do this, what will you do?"
A unique device generally not available in the judicial system because the course don't deal with hypotheticals
Can gather and compile information concerning the organization and business practices of any corporation of industry engages in commerce to determine whether there has been violation of the law
Can use subpoena powers against you
-Require reports, examining witnesses under oath, and examine and copy documents, or they may obtain information from other governmental offices
If you make a false and fraudulent statement to an Administrative Agency, you can go to jail
Consists of 5-7 members
-One member is appointed as a chairperson by the president
-Normally same political party as the President
-If the President is Republican, only 3 can be Republican
Removal is by the President alone
Appointments require Senate confirmation
Appointees are not permitted to engage in other employment during the terms
Agencies have distinctive organizational structure to meet its responsibilities
-Always been regulated
-The Station Nightclub Fire: 2003 there was a fire caused by pyrotechnics
-100 people killed, 100s of people severely injured
-Legal changes were made at the federal level
-Regulations were added to Proximate Audience Fireworks
-People turn to the government to make laws after tragedies
-Administrative agencies with expertise in the subject enforce laws made by the government and make laws themselves
-Every local entity has their way of enforcing rules
Secretary
General Counsel
Executive Director for Administration
Administrative Law Judges
Regional Offices
Presiding partner at agency meetings
Is equal in voting, but is somewhat more important than the other agency members because of the visibility and the power to appoint staff
Responsible for minutes of agency and is legal custodian of its records
Usually signs orders and official correspondence
Coordinates the activities of the agency with others involved in the regulatory process
Responsible for Publication of all actions in the federal register
-Published daily by the secretary
-Grew under Obama, shrunk under Truman
Many agencies may have appointment approved by Senate
Chief law and legal advisor
-Represents the agency in court and often makes the decision to file suit or pursue other remedies
-Has significant impact on policy and is often as powerful as a commissioner or board member
-EOO counsel has to have Senate approval
Quasi-judicial staff
perform the adjudicative fact-finding function of the agency
Have immunity (protected from liability for damages based on their decisions)
Hear cases of alleged law violations and apply the law to the facts
Use prior decisions & precedent (& rules & policy directives of the agency they work for)
If you appeal a case, you go to the commissioners inside of the agency. They get to review themselves.
Investigate alleged violations of the law
Also have an educatioonal function
Before a rule or regulation may be adopted by an agency, interested parties must be given notice of the proposed rules and an opportunity to express their views on them
Agencies give public notice of proposed rules and hold public hearings
Interested parties present evidence in support or opposition to the regulation
Agencies react to the force of public opinion
Each branch of the government has control over the administrative process
Standing to Sue
Review of Rule Making
Procedural Aspects
Review of Factual Determination
Any party seeking the judicial review of any administrative agency’s decision must be able to prove standing to sue
Reviewability: Is the action of decision of the agency subject to judicial review?
-Judicial review is provided except where statutes preclude judicial review or agency action is committed to agency discretion by law
Aggrieved party: The plaintiff is aggrieved
-The plaintiff must. have been harmed by an administration action or decision to have standing
-Suffered economic or non-economic injury (e.x. First Amendment Rights have been violated) from the administrative agency
Rule making is essentially legislative in character
An administrative agency must propose rules and regulations within the confines of its grant of power from the legislature, or a court will find the proposal void
Is delegation valid?
Was this authority from Congress to the Administrative Agency valid?
Delegation of quasi-legislative authority is subject to 2 constitutional limitations
-Has to be definite (or violated due process): Delegation must be set forth with sufficient clarity so that everyone can determine extent of the agency’s authority
-Has to be limited; delegation must have limitations, it must provide that the agencies power to act is limited to areas that are certain even if these areas are not specifically defined
Authority exceeded?
If it’s valid and they didn’t exceed authority, the court is done. Not the court’s problem, it’s Congress’s problem
Courts lack the authority to substitute their judgement of their own procedures for those of the agency
Two doctrines that guide the Courts
Exhaustion of Remedies
Primary Jurisdiction
A court-created rule that limits when courts can review administrative decisions
Avoids the premature interruption of the administrative process
Applies when a claim must complete the administrative process before it can be touched by a court
Courts refuse to review administrative actions until complaining party has exhausted all of the administrative remedies and procedures available to him or her for redress
Reason: Courts hope that agencies will resolve issue with you and not even have to take it to court
“You can’t fuss to us, run the whole thing through the administrative agency. Once you get a FINAL ORDER from the administrative agency, we will look at it”
Exceptions:
-Fundamental constitutional guarantees such as freedom of speech or press are involved
-Exceeding statutory
-Agency is clearly acting beyond its jurisdiction or where it would result in irreparable injury to the petitioner
Ensured uniformity and consistency in dealing with matters entrusted to an administrative body
Invoked when referral to the agency is preferable because of its specialized knowledge or expertise in detailing with the matter in controversy
When the court sees there is an issue, but it's one that should be seen by an administrative agency first,
Court of review examines the evidence by analyzing the record of the agency's proceedings
It upholds the agency's findings and conclusions on questions of fact if they are supported by substantial evidence
-If substantial evidence in support of the decision is present, the court will not disturb the agency's findings
Courts do NOT
-Reweigh the agency
-Make independent determinations of fact
-Substitute their view of the evidence for that agency
Courts only determine if there is substantial evidence to support the action taken by the agency
Relating to personnel
-Difficulty in hiring and retaining the best-qualified people
-Difficult to discharge unsatisfactory employees
-Personnel in top positions are selected for political reasons
Relating to procedures
-Delay in the decision-making process
-Administrative process is overwhelmed with paperwork and meetings
-Rules and regulations are written in complex legal language
-Dictatorial in nature
Relating to substance
-Rules and regulations overlap and conflict
-Actions for illegal conduct end only with consent orders
-Enforcement of laws varies over time
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
