Chapter 8 Regulatory System Flashcards
The Regulatory System
The Regulatory System=Administrative Agencies=The Bureaucracy. Sometimes referred to as the “fourth branch of government”. They can be proactive! First was the Interstate Commerce Commission (1887).
Agencies can be Proactive! (Three Ways)
- Know the industry and can anticipate wrongs (societal issues) and address them.
- Can address “class action” type harm.
- Can carry out congressional legislative mandates.
Atomic Energy Commission (1946)
Congress took control over nuclear power by creating the Atomic Energy Commission. Made an agency of experts of science to make regulations about atomic use, rules, and technology.
Agencies engage in all three of the traditional government functions!
Co-mingling, rather than a separation of powers. Agencies make laws(legislative), execute or administer laws(executive), and adjudicate disputes and interpret laws (judicial).
How are Agencies created?
Enabling legislation: creates agencies, defines its mission, duties and powers.
No inherent powers or implied powers.
Agency is a creation of a legislative body (Congress or state legislature).
Agencies exist at all levels of government.
Federal (National) Government Agencies (Two Types)
Executive Agencies and Independent Regulatory Agencies.
Executive Agencies
Department of…(Defense). Under more strict presidential control.
Independent Regulatory Agencies
Still part of the executive branch of government, but there is less control from the presidency over these agencies, and accountability is different. President appoints all the people underneath the head of these agencies.
Agencies are not listed in the constitution as part of our governmental structure, how do they exist?
Delegation Doctrine: Power of agencies come from delegation as Congress, having responsibility, and the ability to help oversee implementation of laws.
Elastic Clause: “necessary and proper”, used to help Congress to go out and carry out policies.
The Administrative Process (Three Parts)
- Rulemaking. 2. Investigation. 3. Adjudication.
- Rulemaking
Rules=regulations, having the power of the law.
Look at three things as well: A) Notice of Proposed Rule, B) Comment period, and C) Publication of Final Rule.
Look at the Administrative Procedure Act (APA), must be followed by all agencies.
Enabling legislation may designate type of rulemaking required.
A) Notice of Proposed Rule
Federal Register: The agency needs to publish in the federal register for everyone to see, if they want to make a rule.
B) Comment Period
This is triggered by the Notice of Proposal. Look at Formal, Informal, and Hybrid Rulemaking procedure for the comment period.
Formal (On the Record) Rulemaking
Comment period may be substantial-public hearings; expert testimony, industry and government. May take a long time!
Informal (Notice and Comment) Rulemaking
Written comment. No face to face, no hearings, ample time must be allowed. Can involve significant delays too, Peanut Butter Rule (took 10 years).
Hybrid Rulemaking
A combination of both formal and informal rulemaking. Example: Can do testimony and have a written comment.
C) Publication of the Final Rule
Written into the federal register as well to say if the rule will be published as a law, and if they want to revise a proposed rule.
- Investigation
A) Inspections and Tests B) Subpoenas C) Search Warrants
A) Inspections and Tests
Can be done either Voluntarily or Compulsorily.
B) Subpoenas
Government has subpoena power: can force people to give records or documents over to the government, and even force someone to testify.
1) For testimony.
2) For documents and records.
3) Is this government intrusion into privacy? The government can not have you come in with all your stuff after being subpoenaed and say you committed a violation; must be coming in to court to testify on a matter already in trial.
4) Balancing government (societal) interests and private/personal interests. (Doe Case)
Doe vs. Maryland Board of Social Workers
Court said: The public interest is more important than protecting Mr. Doe’s private interest in truthful disclosure to his therapist.
C) Search Warrants
Specific places for specific purposes. All that is needed sometime for a search warrant is “probable cause”. Warrantless searches are authorized in highly regulated industries or ultrahazardous industries, can ask for the records at any time!
Dow Chemical Co. vs. United States
Dow Chemical refused an EPA request for inspection of its plant in Midland, Michigan. So the EPA had a photographer take aerial photographs of the plant. Dow sued in Federal Court claiming a violation of its rights under the 4th Amendment.
The Court: There’s an exception to the 4th Amendment with things that are in plain view! Things you can see in the air from an airplane are in plain view and available to public at large!
- Adjudication
A) Settlement B) Formal Complaint C) Hearing before Administrative Law Judge (ALJ) D) Orders E) Appeal
