Chapter Nineteen Flashcards
Enabling Legislation
A statute enacted by Congress that authorizes the creation of an adminstrative agency and specifies the name, composition, and powers of the agency being created
Legislative rule
An adminstrative agency rule that carries the same weight as a congressionally enacted statute
interpretive rule
an adminstrative agency rule that is simply a statement or opinion issued by the agency explaining how it intreprets and intends to apply the statutes it enforces. Such rules are not binding on private individuals or organizations
Delegation doctrine
A doctrine based on article I, section 8, of the US constitution, which has been construed to allow congress to delegate some of its power to adminstrative agencies to make and implement laws
Bureaucracy
The organizational structure, consisting of government bureaus and agencies, through which the government implements and enforces the laws.
Rule making
the actions undertaken by adminstrative agencies when formally adopting new regulations or amending old ones. Under the administrative procedure act, rulemaking includes notifying the public of propsed rules or changes and receveing and considering the pbulic’s comments.
notice- and- comment rule making
a procedure in agency rulemaking that requires notice, opportunity for comment, and a published draft of the final rule.
Adjudication
The act of rendering a judicial decision. in an adminstrative process, the procceding in which an adminstrative law judge hears and decides issues that arise when an adminstrative agency charges a person or a firm with violating a law or regulation enforced by the agency.
Adminstrative law judge (ALJ)
One who presides over an adminstrative agency hearing and ahs the power to adminster oaths, take testimony, rule on question of evidence, and make determinations of fact. q
Initial order
in the context of adminstrative law, an agency’s diposition in a matter other than a rulemaking. An adminstrative Law Judge’s initial order becomes final unless it is appealed
Final order
the final decision of an adminstrative agency on an issue. if no appeal is taken, or if the case is not reviewed or considered a new by the agency commission, the adminstrative law judge’s intial order becomes the final order of the agency.
Administrative Law
Legal rules that define the authority and structure of adminstrative agencies create “the detailed rules and regulations necessary to carryout the statute.”
Enabling Statute
A law passed by congress (or by a state legislature) that creates an administrative agency; federal administrative agencies may exercise only those powers that congress had delegated to them in enabling legislation.
formal rulemaking
- may be required by enabling legislation 2. publish in federal register 3. formal hearing for comment process.
administrative Formal rulemaking notes
rulemaking-on record (public hearing
adminstrative infromal rulemaking
notice and comment
how do adminstrative rules get made
administrative procedures act (APA) dictates process to be followed depending on the type of agency rules.
Limits on agency power
- legislative control
- executive control
- judicial control
- public accountability
Limits on agency power legislative control
- the enabling legislation that created the agency places controls on it through requirements and restritctions
- congress controls the budgets of agencies. They can eliminate funding for any program or an entire agency; the “freezing” of regulations” before the regulations take effect”
- congress can amend enabling legislation to place limits
Limits on agency power: execuitive control
-the president has control over agencies through poitical pressure through nominations of agency heads.
Limits on agency power: judicial controls
-judicial review of final agency actions/after exhaustion of adminstrative remedies
Limits on agency power: public accountability
- The freedom of information act (FOIA)
- Government-in-the-sunshine act (Open law meetings)
- Regulatory flexibility act
- Small business regulatory enforcement fairness act
Powers of agencies: procedures for ajudication
- a hearing before an adminstrative law judge (ALJ)
- parties have counsel, but there is no jury
- judge (ALJ) makes initial ruling on testimony and evidence
Power of agencies: if parties are unhappy with ALJ order
- loser may appeal to agency’s governing board
- governing board may make a de novo decision, and ignore the ALJ’s decision- final agency order
- appeals go to federal court.
Powers of Agencies: Investigation
- Voluntary
- Subpoena
- Search and seizure
- most require a warrent before search
Voluntary
some businesses freely give information and readily comply with agency recommendations
subpoena
an order to appear at a hearing and produce evidence, sometimes documents
subpoena also
- must be relevant to the investigation and under the agency’s jurisdiction, or area of authority
- must not be unreasonably burdensome on business
- Must not be privileged
Search and seizure
a legal search of a business
Most require a warrant before the search
some industries are highly regulated and may be searched at any time, with no warning. (eg mining industry, firearms, liquor sales, ect)
Creating an adminstrative agency
adminstrative agencies are created to establish expertise and to exercise supervision over special problems about which congress is concerned; agencies exercies powers that are normally divided among the three branches of government.
Congress delegatges powers to the agency
Delegation doctrine through an enabling statute which specifies the name, composition, purpose, fuction, and powers of the agency being created
