Chapter 44 Flashcards
Administrative Law
consists of the substantive and procedural rules created by these bodies. It governs applications, licenses, available information, hearings, appeals and decision making.
Administrative Agency
a governmental body responsible for the control and supervision of a particular activity of area of public interest.
First federal administrative agency was the _________ created by Congress to better control anticompetitive railroad business.
Interstate Commerce Commission (ICC)
Administrative agencies are created by _______ through passage of _____ which is the statute that specifies the _________ powers of the new agency.
Congress, enabling legislation, name, functions and specific
Administrative Law Judge
Presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter binding decision
Enabling statutes grant agencies what broad powers in serving.
Rule making, investigation and adjudication
Rule-making
3 kinds
- Procedural
- Interpretive
- Legislative
Procedural rule making
govern the internal operations of the agency
Interpretive rule making
explain how the agency views the meaning of the statutes for which it has administrative responsibility
legislative rule making
policy expressions that have the effect of law
subpoena duces tecum
an order to appear and bring specified documents
adjudication
- Agency will hold an administrative hearing before an ALJ
- ALJ will convince parties to reach settlement via consent order, has authority to render an order
- Administrative law matters are only heard by the ALJ; there is no right to trial in administrative agencies
Different Types of Administrative Agencies
- Executive Administrative Agency
- Independent Agency
- Hybrid Agency
Executive Agency
- Generally within executive branch of government under a “cabinet-level” department
- AKA “cabinet-level” agency
examples: Federal Aviation Agency (FAA), Food & Drug Administration (FDA)
Interdependent Agency
Governed by board of commissioners appointed by president, with “advice and consent” of US Senate
examples: Federal Trade Commission (FTC), Securities and Exchange Commission (SEC)
Hybrid Agency
Characteristics of an executive and independent agency
example: Environmental Protective Agency (EPA)
Informal Rule Making is the _____ type used by administrative agencies.
primary
informal rule making
- Agency initiates informal rule by publishing proposed rule in Federal Register, with explanation of the legal authority for using and description of rule-making process
- Agency has the discretion to receive oral testimony if it wishes
- Publishes final rule, with statement of its basis and purpose in Federal Register. Publication includes date which rule becomes effective, at least 30 days of publication.
formal rule making
- agency initiates informal rule by publishing proposed rule in Federal Register with explanation of the legal authority for using and description of rule-making process.
- public hearing at which witnesses given testimony on pros, cons; subject to cross-examination
- On basis of findings, agency may/may not promulgate a regulation. If adopted, final rule is published in Federal Register.
Functions of Administrative Agencies
- Regulating Conduct
- Fulfill Government Requirements
- Disbursing Benefits
- Providing goods/services
Regulating Conduct
Agencies regulate economic matters. Examples: price or entry into a particular kind of business
Fulfill Government Requirements
Administrative Agencies exist at all level of government. At the federal level, the IRS collects taxes needed to operate our federal government.q
Disbursing benefits
There are many government agencies whose primary responsibility is to disburse benefits to a certain group of people. (Ex: farmers, elderly, individuals who are unemployed)
Providing goods/services
our country is a capitalist nation; however, some essential services are not provided by the private sector. Instead, some governments provide goods, services like electricity, water, highway maintenance and hospital care.
Act that puts limitations on how agencies are run
Administrative Procedures Act (1946)
Regulated Negotiation (reg-neg)
Exceedingly high number of challenges to regulations, as well as a growing belief that structured bargaining among competing interest groups might be the most efficient way to develop rules has stimulated interest among a number of agencies in a relatively new form of rule making called reg-neg.
4 Types of Agency Powers
- Political
- Statutory
- Judicial
- Informational
Political Agency Powers
The Senate Must approve nominees for agency heads, and Congress has power over agencies’ budgets.
Statutory Agency Powers
Congress may create or eliminate agencies and amend enabling legislation; Congress reviews and may override agency rules
Judicial Agency Powers
Interested parties may challenge administrative rules in the courts, which may review the agency’s findings of facts, its interpretation of the rule, and the scope of the agency’s power in making the rule.
Informational Agency Powers
The Freedom of Information Act, Government in Sunshine Act and Privacy Act of 1974 specify agencies’ responsibilities regarding public access to information.
Freedom of Information Act (FOIA)
1966
Requires that federal agencies publish in the Federal Register places where the public can obtain information from them. All federal government agencies must publish records electronically.
Government in Sunshine Act
Requires that agency business meetings be open to the public when a quorum is present and if the agency is headed by a collegiate body.
collegiate body consists of 2+ persons, majority of whom are appointed by the president
Privacy Act (1974)
A federal agency may not disclose information about an individual to other agencies or organizations without individual’s written consent.
subpoena
order requiring the recipient to appear at a legal proceeding to provide testimony
administrative hearing
a trial-like judicial proceeding without a jury in which ad administrative agency rules on matters of the law that the agency is charged with enforcing
Administrative Agency v. Government
Executive
daily operations; the establishment of general policy and objectives
vs
voters have the opportunity to vote the executive into and out of office
Administrative Agency v. Government
Legislative
Rules and regulations are like laws passed by the legislature and have the force of law
vs
Rules and regulations are established by the agency not the elected representatives
Administrative Agency v. Government
Judicial
Hold hearings and requiring compliance with its decisions are like decisions made in regular court of law
vs
hearings conducted by an administrative agency do not have a jury and the procedures are not as formal when compared to a regular court hearing
Administrative agencies have been ____ by the enterprises they were created to regulate.
Because of the ______ benefits or burdens that administrative agencies can bestow on a firm or an industry, those regulated have a ________ to secure favorable rulings.
The need for specialized expertise in a given area can usually come _______.
captured
economic, powerful incentive
only from the industry being regulated
Exemptions to FOIA
- National Security
- Internal Agency Matters (Ex: Personnel Issues)
- Criminal investigations
- Financial institutions
- Individual’s private life
