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legal issues > Chapter 17 > Flashcards

Chapter 17 Flashcards

1
Q

What is administrative law?

A

a body of law that defines, regulates, and limits the authority of regulatory agencies

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2
Q

What are administrative agencies?

A

department agencies (Dept of Treasury-IRS), nondepartment agencies (EPA), and independent agencies (SEC)

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3
Q

What is unique about independent agencies?

A

they are designated by Congress as independent of the executive branch and do not exist by virtue of the president or a department

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4
Q

Who heads an administrative agency?

A

administrators or commissioners

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5
Q

What are the primary functions of an administrative agency?

A

policymaking, investigation and enforcement, licensing and permitting, and distribution of federal benefits to the public

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6
Q

What is rulemaking?

A

a legislative function performed by administrative agencies to create legally enforceable rules in order to fill in the details of a statute

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7
Q

What is adjudication?

A

a system of adjudicatory bodies established within the agency to decide cases that involve an alleged violation of the agency’s rules.

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8
Q

Who composes the adjudicatory bodies of the administrative agency?

A

administrative law judges who are employees of the agency

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9
Q

What are the investigative and enforcement functions of the administrative agency?

A

investigating alleged violations of the agency’s administrative regulations and recommending enforcement actions such as fines and other sanctions. they also monitor compliance with regulatory requirements through inspection of facilities and grounds of business sites under their jurisdiction.

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10
Q

What are the licensing and permitting functions of the administrative agency?

A

licenses for professionals and industries

Examples: SEC-licenses to trade securities, FCC-tv and radio stations, EPA-control air and water pollution

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11
Q

What are the functions of the administrative agency regarding the distribution of federal benefits to the public?

A

administrative agencies are the portal used to distribute benefits including the application process.
Example: social security benefits, medicare, student loans

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12
Q

What are the sources of administrative law?

A

1) US Constitution
2) Administrative Procedures Act (APA)
3) Enabling Statutes
4) Common Law

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13
Q

What source of administrative law places limits on the type of powers that agencies may exercises and the methods employed to carry out their duties?

A

US Constitution

Examples: due process, nondelegation doctrine, fourth amendment protections

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14
Q

What source of admin. law imposes specific procedural structures and due process requirements on the agency’s duties?

A

Administrative Procedures Act

*also provides for judicial review of agency’s actions and determinations

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15
Q

What is an enabling statute?

A

a federal law passed by Congress to establish an administrative agency for the purpose of carrying out the details of macro objectives set by the law.

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16
Q

What is the source of the admin. agency’s authority and establishes the agency’s scope and jurisdiction over certain matters ?

A

enabling statutes

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17
Q

How does common law regulate administrative agency’s?

A

most of common law has been codified through the APA, but it is still used to apply or interpret the APA

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18
Q

What is the scope of the admin agency’s power?

A

1) Rulemaking
2) Enforcement, Licensing, and Inspection
3) Adjudication

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19
Q

Who establishes the rulemaking procedures of the admin agency?

A

APA

*rulemaking procedures are supplemented by enabling statutes passed by Congress

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20
Q

What are the informal rulemaking procedures?

A
  • permitted under the basic structure of the APA
    1) notice
    2) public comment
    3) publication of final rule
    4) opportunity to challenge a rule in court
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21
Q

When is formal rulemaking used?

A

When Congress has specifically indicated in the enabling statute that the agency rules must be made “on the record after a hearing”. (an extensive hearing process set by the APA)

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22
Q

What are the rulemaking steps?

A

1) agency study & research
2) notice
3) public comment
4) revision or final publication

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23
Q

What happens during the agency study and research step?

A

the agency begins to study and research the various alternatives for achieving the goals set by Congress. many agencies employ scientists to conduct research and provide data and conclusions to policymakers.

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24
Q

What is involved in the notice step of the rulemaking process?

A

the admin agency proposes a rule to meet the objectives of the enabling statute and publishes the rule in the federal register to notify stakeholders

  • the notice must include the “actual terms, substance, and description” of the proposed rule
  • the agency must also disclose any studies, reports, data, or other pertinent materials used to create the rule
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25
Q

What is the next step after the admin has posted the proposed rule in the federal register?

A

the public comment period-the agency give the public time to submit their own research and findings and the agency is required to make a good faith effort to study the materials and comments.
*the agency may also choose to hold public hearings

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26
Q

Who typically submits evidence in the comment period?

A

1) various factions of business and industry
2) professional associations
3) public advocacy groups

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27
Q

What is the Regulatory Flexibility Act of 1980?

A

requires agencies to ask for and consider regulatory proposals that consider the size of the businesses subject to regulation.

the agency must consider small business concerns and permit them the opportunity to participate in the rulemaking

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28
Q

What happens after the public comment period?

A

the agency either revises the rule or publish the original rule

the agency may provide a second comment period after a rule revision, but it is not mandatory

29
Q

What happens after the public comment period?

A

the agency either revises the rule or publish the original rule

the agency may provide a second comment period after a rule revision, but it is not mandatory

30
Q

Agencies do not have to hold a second comment period. What is the only exception to this rule?

A

If the agency’s revised rule is a substantial or material alteration of the originally proposed rule.

A revised rule must be a logical outgrowth of the original rule

31
Q

What happens if the agency has not been swayed during the public comment period?

A

the rule is published in the federal register as final

the agency must include “a concise general statement of basis and purpose” to meet legal requirements proving that the rule was based on reasoned decision making

32
Q

What is a rule called when it becomes effective?

A

a regulation (published in the Code of Federal Regulations)

33
Q

What is the Negotiated Rulemaking Act?

A

an alternative to the normal rulemaking process. agencies negotiate with the parties involved to reach an agreement before the original rule is published

the agency must still follow the informal rulemaking steps and the agency is not obligated to even publish the negotiated rule

34
Q

What is the arbitrary and capricious standard?

A

the failure to exercise honest judgement instead of reasoned consideration of all relevant factors

35
Q

What can adversely affected parties do after a rule has been published?

A

they can challenge the rule in court

  • courts apply the arbitrary and capricious standard-no clear errors of judgement and the APA procedures were followed
  • courts give great deference to an agency’s authority
36
Q

What is prosecutorial discretion?

A

in terms of enforcement, agency’s have broad discretion in when and whom to regulate

  • practically unreviewable by the judiciary
  • must be a patent abuse of discretion
37
Q

What division of the admin agency carries out the enforcement responsibilities?

A

investigators and the Office of the General Counsel

38
Q

Agencies are frequently delegated the licensing power to…

A

issue, renew, suspend, or revoke a license to conduct a certain business
*once licensed, an agency may impose fines or restrictions if any of the regulations are violated

39
Q

What type of licenses are issued by state admin agency’s?

A

occupational licenses (attorneys, physicians, hair stylist and contractors)

40
Q

Agencies monitor compliance with administrative regulations through…

A

inspections

41
Q

What is an administrative warrant?

A

a warrant required to enter and inspect a business to monitor compliance with an administrative regulation

42
Q

What is different about a pervasively regulated business?

A

an exception to the warrant requirement where the agency is conducting regularly scheduled inspections pursuant to a rule

43
Q

Are administrative warrants held to a lower standard than criminal warrants?

A

yes

44
Q

Businesses subject to an agency’s jurisdiction are required to…

A

1) keep certain records for inspection
2) turn over records that may be useful in determining compliance
3) request statements or other information from the business’s principals or managers

45
Q

Do administrative agencies have the authority to adjudicate matters under their jurisdiction?

A

yes

46
Q

What is an adjudication?

A

a hearing where the government and the private party each presents evidence in a quasi-judicial setting
*presided over by an administrative law judge (employed by the agency to adjudicate disputes)

47
Q

What happens when the losing party in a ALJ case wants to appeal?

A

the administrative head of the agency review the appeal and either overturns or affirms the ALJ’s ruling

48
Q

If the administrative head of the agency affirms the ALJ’s appeal, can the decision be challenged in federal court?

A

yes!

49
Q

Who limits the authority of administrative agencies?

A

the executive, legislative, and judicial branches

50
Q

How can the President exercise power over administrative agencies?

A

1) Appointments Clause
2) Direct Power
3) Budgetary Control

51
Q

What is the appointments clause?

A

it gives the President the exclusive right to nominate principal officers such as cabinet members or commissioners of independent agencies (subject to the approval of congress)

52
Q

Can the President remove principal officers?

A

yes, officers can be removed at any time with or without cause and without the approval of congress

53
Q

Can Congress restrict the President’s power to remove principal officers?

A

yes, congress can pass an enablement act with a restriction on the President’s power to remove a particular officer of the government

54
Q

What agencies are independent of the President’s direct power?

A

congress has designated the federal trade commission and the SEC as independent of the president’s direct power.
*the heads and commissioners of these agencies may only be removed for good cause

55
Q

What is direct power?

A

president’s can exercise direct power over administrative agencies to accomplish the president’s public policy objectives

56
Q

What type of power does Congress have over administrative agencies?

A

congress has power to influence, amend, or void actions of an administrative agency

example:
1) power over government funding
2) create legislation to restrict an agency’s power
3) overrule an administrative regulation

57
Q

How can Congress cancel an agency’s final rule?

A

1) both houses agree
2) pass a resolution to overrule within 60 days
3) present the overruling resolution to the president

58
Q

Under what circumstances, can the court void agency actions?

A

1) the agency has exceeded their statutory authority

2) agency action was taken without adhering to statutory established procedure

59
Q

What is the Chevron test?

A

the framework to analzye the validity of the agency’s statutory interpretation and action

1) look at the plain language meaning of the statute and if it conflicts with the agency’s interpretation
2) if the statute is silent, the arbitrary and capricious standard is applied

60
Q

What guidance is laid out for the arbitrary and capricious standard?

A

1) relied on factors that congress had not intended to consider
2) failed to consider an important aspect
3) offers an explanation for the decision that is opposite of the evidence
4) so implausible that it could not be the product of agency expertise

61
Q

What is a citizen suit?

A

a suit filed by a member of the public who is directly affected by a particular agency action. the suit can be filed against either a violator of the regulation or the agency for failing to fulfill a duty imposed by the statute

62
Q

Can a citizen suit be used to attack the substance of the regulation?

A

Nope

63
Q

What safeguards protect the public from an agencies abuse of power?

A

private citizen suits and federal disclosure statutes

64
Q

How does the Freedom of Information Act hold administrate agencies accountable to the public?

A

FOIA grants the public access to certain agency records for inspection. the agency is required to publish certain matters and allow the public to inspect all records created or obtained by the agency

65
Q

What happens if an agency withholds records from the public?

A

the public can file a lawsuit against the agency

66
Q

What are some exceptions to FOIA’s disclosure requirements of an agency?

A
  • sensitive national defense or foreign policy information
  • agency personnel matters
  • trade secrets and privileged commercial information
67
Q

How does the Government in the Sunshine Act hold administrative agencies accountable to the public?

A

agencies must announce their meetings at least one week in advance and to open the meeting to the public unless it falls under one of the act’s exceptions

68
Q

What are some exceptions to the Government in the Sunshine Act?

A

meetings that are consultative, investigatory, or adjudication matters

69
Q

What are some examples of state administrative agencies?

A
  • dept of revenue
  • sale of securities
  • environmental protection
  • bank and insurance company regulations
  • workplace safety

legal issues (2 decks)

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