Administrative Law

Question 1

Administrative Law

Answer 1

• Creature of statute
• Rule making, investigation and enforcement
• Executive Branch v. Quasi independent
• Judicial Review - Limited
• Freedom of Information Act

Question 2

Federal agencies

Answer 2

-Department of Homeland Security, IRS, Department of Defense, EPA, SEC

Question 3

State Agencies

Answer 3

• Department of Revenue, Department of Education, Department of Conservation

Question 4

Agencies [federal and state] generally are responsible for

Answer 4

determining how it is organized,

adopting regulations for how it will carry out its functions, and

the enforcement of its regulations.

Question 5

Typical agency rulemaking powers include power to

Answer 5

1. investigate matters,
2. hold adjudicative proceedings to determine violations, and
3. impose penalties for violation of the rules
   - can be seen as judge, jury and hangman

Question 6

Agencies can be either

Answer 6

A branch of the executive agency
or
‘quasi’ independent agency

Question 7

Similarities between two [2] types of Agencies are

Answer 7

Executives of both types of agency are nominated by President/Governor and confirmed [2/3rds vote] by the Senate

Question 8

Key difference between types two [2] types of Agencies are:

Answer 8

Executive Branch - the top executives in executive branch agencies serve at the pleasure of the President or Governor and may be fired by President or Governor.

and

‘Quasi’ - top officials serve for a fixed term after being confirmed by Senate and are not able to be fired by President or Governor

Question 9

Heads of Independent agencies usually serve

Answer 9

• for a fixed term [usually 6 years]

- which is out of sync with executive election cycle of [President/Governor]

Question 10

The procedures governing how an agency operates is governed by the

Answer 10

Administrative Procedure Act

This provides for ‘procedural due process’

Question 11

Administrative Procedure Act

Answer 11

The rulemaking process is set out in the Administrative Procedure Act [APA] adopted by legislature

• opportunity for public comment
• publication of findings
• publication of Final Rule
• administrative and judicial challenges

Question 12

Administrative Law Judge [ALJ]

Answer 12

• not a federal/state court judge but rather an employee of the government agency
• usually a lawyer
• appeal of adverse decision is generally to head of administrative agency

Question 13

agencies can issue two [2] types of subpoenas

Answer 13

Subpoena to a person – to appear and provide evidence

Subpoena for specified documents [subpoena duces tecum]

Question 14

To be valid a subpoena must be

Answer 14

1. relevant,
2. not unduly burdensome, and
3. cannot require privileged information [ eg. self incrimination or attorney – client privilege]

Question 15

Judicial Review

Courts will only review adminstrative agency actions if:

Answer 15

1. the party appealing is directly affected by the decision;
   And
2. the party has exhausted all avenues of appeal within the agency. - to exhaust you must first pursue all appeals within the agency [unless you can prove futility of effort]

Question 16

Freedom of Information Act [FOIA]

Answer 16

Statute enacted by US Congress in 1966
Enables US persons to submit a written request to a US [federal] government agency for:

1. Information about how-
   agency operates
   spends its money
   it collects information on particular subjects,
   and,
2. Any information the agency has about you