Administrative Law

Question 0

What are the two issues of agency and jurisdiction?

Answer 0

(1) Statutory Issues
and
(2) Constitutional Limits

Question 1

What are the three tested areas of agency law?

Answer 1

(1) Agency creation and jurisdiction (only tested when there is enabling language).
(2) Agency Action (always tested)
(3) Judicial Review (if problem states in court or going to court)

Question 2

What are the statutory issues (limits)?

Answer 2

(1) Ultra Vires
- - Administrative agencies must act within the scope of their enabling legislation and if they fail to they are ultra vires. Thus, they are unconstitutional.

(In response to an ultra vires challenge, agencies may argue that their interpretation of the law is reasonable)

(2) Statutory Interpretation
- - Administrative agencies must be reasonable in interpretation of their enabling statutes.

Question 3

What are the Constitutional limits?

Answer 3

The Constitution limits the ability of the legislature to delegate its power (this is known as the doctrine of delegation).
–When the legislature delegates its power to administrative agencies, it must provide adequate safeguards for the use of power. This means that the legislature must define the subject matter the agency has power over and must proved an “intelligible principle” stating when the agency can use that power (also known as the what and when test).

Question 4

Was is the general agency action rule?

Answer 4

Agencies have power to do the work of government, but they must be fair.
–Fairness is defined by (1) their enabling law, (2) the administrative procedure act, and the Constitution.

Question 5

What are the three areas of agency action?

Answer 5

(1) Investigation
- -Constitutional Concern: unreasonable search and seizure.
(2) Rulemaking
- -Constitutional Concern: due process
(3) Adjudication (enforcement)
- -Constitutional Concern: due process

Question 6

Criminal Penalties

Answer 6

Agencies may impose civil sanctions, but may not issue criminal penalties.

Question 7

Agency process in emergencies

Answer 7

Agency processes required by APA or the Constitution may be temporarily suspended for good cause (upon an adequate factual basis: not a rumor).

• -Hospital
• -toxic substances
• -emergency rooms
• -nursing home

Question 8

What is the APA rule for investigation?

Answer 8

Agencies may compel information through (1) subpoena power and through (2) physical inspection/search.

• -Subpoenas must be authorized by law (separate statute) AND must be Constitutional ( cannot be too vague, cannot be irrelevant-must be related to agency-, and cannot be unduly burdensome).
• -Searches/Physical inspections always require a warrant, unless an exception applies. A warrant must define the scope of search, and the agency must have a reasonable basis (probable cause) for the inspection/search.
• —–Exceptions: consent, emergency, plain view (public portions of a business), authorized by statute.
• —–Rule: An agency may conduct a warrantless search of a commercial enterprise in a heavily regulated industry if a law (1) expressly authorizes warrantless searches, (2) gives notice of them, and (3) defines the scope of search.

Question 9

What is the APA rule for rulemaking?

Answer 9

An agency is engaged in rulemaking if it is issuing a broad policy statement that is general in nature and prospective. Thus the agency must: (1) give adequate notice by publishing in state register (authority, rule, time, place, and nature of proceeding), (2) give opportunity for comment (doesn’t need to oral), (3) publish the final rule in the state register (30 days prior to rule taking effect).
–Rule: The agency cannot be biased in rulemaking, thus they must not have “unalterably closed minds.”

Question 10

What is the APA rule for adjudication?

Answer 10

Adjudication occurs when the agency is engaged in factfinding related to a specific dispute, and it is issues an order to be applied retroactively to resolve the dispute. Thus, adjudication requires (1) adequate notice, (2) an oral hearing with all proper and necessary parties heard by an impartial decision maker based on a preponderance of reliable evidence, and (3) agency must issue a final written order based on the record.
–Always argue that due process argue Due Process requires the procedure denied. Use balancing test: gov interest, private interest, and risk of error of procedure used.

Question 11

What are the two judicial review issues in agency (if in court or going to court)?

Answer 11

JURISDICTION
-Standing
—injury in fact (causation and redressability)
—zone of interest (statutory; party intended by legislation)
—third parties (stigma, relation, money)
—associational standing
-Exhaustion of Remedies
Rule: Parties must exhaust administrative remedies before proceeding to court. Unless, it would be futile, create irreparable harm, or there is a violation of constitutional harm.
-Ripeness
Rule: A matter is ripe for review only if (1) the question presented to the court legal in nature, and (2) there would be a substantial hardship to the petitioner if review were denied. If party is not subject to enforcement activity by the agency then the issue is not ripe.
-Finality: If remedies are not exhausted or if an issue is not ripe for review.
Rule: Courts may only review final agency action.

SCOPE
-Standard of review
Rule: For rulemaking, the standard of review is arbitrary and capricious (rational basis).
Rule: For adjudication, the standard of review is substantial review based on the record as a whole (more than a mere scintilla). If no record NM std is de nova review.
-Deference
Rule: Courts are very deferential to agency factfinding.
Rule: Courts will defer to reasonable agency interpretations of law if statutory language is ambiguous or nonexistent. However, where statutory language on a point is clear, courts will not defer to contrary agency interpretations. Agencies must do what the law commands.
Rule: Agency proceedings must be open to the public (sunshine law).