MGMT 311 – Chapter 23

legislature

adminstrative agencies

it leaves implementation of the legislation to the admin. agencies

make detailed decisions required for regulation

admin agencies provide the meat

at all levels of government

supersede conflicting state and local regulations (supremacy clause)

a comprehensive regulatory scheme

- benefits to society and environment
- hinderance to businesses

through enabling legsilation

specifices the name, purpose, functions, and powers of the agency created

only exercise the powers expressly delegated to them by congress

1. can be sued for failing to act
2. or exceeding its authority to act

1. executive
2. independent regulatory

under the President and members of his cabinet

- director/secretary that is appointed by President
- can be removed by president w/without cause

outside the direct authority of the President
- officers served for a fixed period & cannot be removed without just cause

unique within the goverment because they have all 3 branches of government powers

1. rulemaking
2. enforcement
3. adjudication

courts have held that under delegation doctrine, congress has right to establish admin. agencies and delegate them their authority to make rules for implementing laws

4th branch of government (bureaucracy) - unique abilities

the president can exercise authority over agencies by appointing directors/officers and through veto power

enabling legislation passed by congress or legislation expanding/contracting an existing agency's authority

congress exercises authority over agencies through legislation (through statutes)

- can give or take away an agency's authority or funds

Judicial Review

- APA provides judicial review of most agency decisions
- parties seeking judicial review MUST EXHAUST ALL ADMINISTRATIVE REMEDIES

case is dismissed

Administrative Procedure Act

was to provide more judicial control over agencies

hold unlawful and set aside agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law"

1. failed to provide a rational decision for its verdict/ outcome
2. changed its prior policy without justification
3. considered legally inappropriate factors
4. entirely failed to consider a relevant factor
5. rendered a decision plainly contrary to evidence

APA requires agencies to provide fair and adequate notice to those affected by its regulations

1. rulemaking
2. enforcement
3. adjudication

formation of new rules or regulations

defined as an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy

binding and function like statutes

1. notice of the proposed rulemaking
2. comment period
3. final rule

the agency must publish notice of the proposed rulemaking proceeding in the federal register

- notice states where and when the proceeding will be held, agency's authority, and the terms of the rules

a transparent process

the agency must allow time for the public or interest parties to submit comments in writing to potentially influence the agency (for or against the rule)

- if public hearing, comments may be submitted orally

after review of comments, agency drafts the final rule of publication

- reflective of the comments received
- if substantially changed, the agency should start over
- if not, it is recorded in Code of Regulation and have binding legal effect

rulemaking is long and expensive and agencies have adopted other more informal means of policymaking

- issuing interpretative rules & guidance docs
- no effect of law : parties cannot be prosecuted for violating interpretative rules

agency generally enforce their own rules and regulations

- begins with report of violation

agency may do an onsight inspection or safety test

part of enforcement

1. To Testify - it is a written order compelling a witness to appear before an agency

2. bring with you - compels an individual or corp. to hand over books records, docs

what an agency can demand

courts look at
1. purpose of investigation
2. relevance of info requested
3. specificity of demand
4. the burden of demand

still subject to 4th, need PC

- when there is a general threat to the public, generally highly regulated industries

formal adjudication resolution ends with a hearing conducted by the agency

a negotaited settlement, for two reasons:

1. cost and playing ball
2. controlling the outcome

if a settlement cannot be reached, agency may issue a formal complaint against a violator (like charges)

Administrative Law Judge

preside over the hearing, power to adminstrate an oath, take testimony, rule on questions of evidence, make determinations of fact

the agency but are UNBIASED

- no ex-parte communications

agencies generally exercise substantial discretion over the types of procedures that will be used

trial

- discovery
- witnesses, evidence, testimony
- formal rules of evidence may not apply

following the conclusion of the hearing, the ALJ renders an intial order or decisions

either party may appeal the decision to the board of director of the agency

- if still unsatisified, decision may be appealed to federal appellate court
- if no appeal is final, the ALJ becomes the final order

courts generally defer to agency decision bc of the expertise

2 parts:
1. did congress directly address the issue in dispute in the statute
2. if the statute is silent or ambigous, is the agency's interpretation reasonable?

requires the fed. gov. to disclose certain records to any person or entity on written request

- exception: national security, confidental records
- individuals can sue when denied access

open meeting law

- ever meeting of an agency must be open to the public
- public be provided advance notice of scheduled meeting

passed in 1980, requires agencies that adopt new regulations that will have a "significant impact upon substantial number of small entities" - to conduct regulatory analysis

(protects small businesses)

also helps ease the regulatory burden on small businesses