Exam 2 - Administrative Law (Ch. 19) - Study Guide

Question 1

administrative law

Answer 1

• Congress delegates some of its authority to make and implement laws, particularly in highly technical areas, to administrative agencies

Question 2

executive agencies

Answer 2

• within the cabinet departments of the executive branch

* subject to the power of the president to appoint and remove their officers

Question 3

independent agencies

Answer 3

• officers serve fixed terms and

* cannot be removed without just cause

Question 4

state and local agencies

Answer 4

• often parallel federal agencies in areas of expertise and subjects of regulation
• federal rules take precedence when there is a conflict with state rules

Question 5

executive controls

Answer 5

the executive branch exercises control over agencies through:
• the president’s powers to appoint federal officers and
• to veto enabling legislation or congressional attempts to modify an existing agency’s authority

Question 6

legislative controls

Answer 6

• Congress exercises authority over agency power through enabling legislation and subsequent legislation
• Congress can restrict or expand agency power substantively, limit or increase it throuigh funding, or set time limits
• Congress can investigate an agency
Individual legislators may affect agency policy through attempts to help their constituencies deal with agencies
• Administrative Procedure Act (APA) of 1946, and other laws

Question 7

judicial controls

Answer 7

• the APA provides for judicial review of most agency decisions
• according to the exhaustion doctrine, a party must have used all potential administrative remedies before filing a suit

Question 8

Administrative Procedure Act (APA) of 1946

Answer 8

• rulemaking, investigation, and adjudication make up the administrative process
• the APA imposes procedural requirements that agencies must follow

Question 9

APA: Arbitrary and Capricious Test

Answer 9

• the APA provides that courts should set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”

Question 10

APA: Arbitrary and Capricious Test factors

Answer 10

1. Failure to provide a rational explanation for a decision
2. Change in prior policy without an explanation
3. Consideration of legally inappropriate factors
4. Failure to consider a relevant factor
5. Render of a decision plainly contrary to the evidence

Question 11

APA: Rulemaking

Answer 11

• the formulation of new regulations
• legislative rules, or substantive rules, are as legally binding as the laws that Congress makes
• interpretive rules are not binding, but indicate how an agency will apply a certain statute

Question 12

APA: Rulemaking Steps

Answer 12

1. Notice of Proposed Rulemaking
2. Comment Period
3. The Final Rule

Question 13

APA: Rulemaking: Step 1. Notice of Proposed Rulemaking

Answer 13

An agency begins by publishing, in the Federal Register, a notice that states
• where and when proceedings will be held
• terms or subject matter of the proposed rule
• the agency’s authority for making the rule
• key information underlying the proposed rule

Question 14

APA Rulemaking: Step 2. Comment Period

Answer 14

• interested parties can express their views
• an agency must respond to significant comments by modifying the final rule or explaining, in a statement accompanying the final rule, why it did not

Question 15

APA: Rulemaking: Step 3. The Final Rule

Answer 15

• the agency publishes the final rule in the Federal Register
• final rule terms may differ from the proposed rule
• the final “legislative rule” has binding legal authority unless overturned by a court

Question 16

APA: Informal Agency Actions

Answer 16

• a rule that states an agency’s interpretation of its enabling statute’s meaning is an “interpretive rule” and may be issued without formal rulemaking
• these rules impose no direct or binding effect

Question 17

judicial deference to agency decisions

Answer 17

courts generally defer to an agency’s factual judgement on a subject within the area of its expertise and its interpretation of its legal authority

Question 18

APA: Investigation

Answer 18

• agencies must have knowledge of facts and circumstances pertinent to proposed rules
• agencies must also obtain information and investigate conduct to ascertain whether its rules are being violated

Question 19

APA: Investigation Tools

Answer 19

1. Inspections and Tests
2. Subpoenas
3. Search Warrants

Question 20

APA: Investigation: 1. Inspections and Tests

Answer 20

through on-site inspections and testing, agencies gather information to prove a regulatory violation or to correct or prevent a bad condition

Question 21

APA: Investigation: 2. Subpoenas

Answer 21

• a subpoena ad testificandum is an order to a witness to appear at a hearing
• a subpoena duces tecum is an order to a party to hand over records or other documents

Question 22

APA: Investigation: Subpoena limits

Answer 22

• an agency must have a legitimate purpose
• information sought must be relevant
• demands must be specific
• the party from whom the information is sought must not be unduly burdened by the request

Question 23

APA: Investigation: 3. Search Warrants

Answer 23

• a search warrant directs an officer to search a specific place for a specific item and present it to the agency
• Fourth Amendment: protects against unreasonable searches and seizures by requiring that in most instances a physical search must be conducted under the authority of a search warrant
• Warrantless Searches: warrants are not required to conduct searches in businesses in highly regulated industries, in certain hazardous operations, and in emergencies

Question 24

APA: Adjudication

Answer 24

adjudication involves the resolution of disputes by an agency

Question 25

APA: Adjudication Processes

Answer 25

1. Negotiated settlements
2. Formal complaints
3. Administrative Law Judge (ALJ)
4. Hearings
5. Agency Orders

Question 26

APA: Adjudication: 1. Negotiated Settlements

Answer 26

the purpose of negotiation is
• for agencies: eliminate need for further proceedings
• for parties subject to regulation: avoid publicity and expense of litigation

Question 27

APA: Adjudication: 2. Formal Complaints

Answer 27

• if there is no settlement, an agency may issue a formal complaint
• the party charged in the complaint may respond with an answer
• the case may go before an Administrative Law Judge (ALJ)

Question 28

APA: Adjudication: 3. Role of ALJ

Answer 28

• presides over hearing
• has the power to:
— administer oaths
— take testimony
— rule on questions of evidence
— make determinations of fact
• ALJ works for the agency, but must be unbiased
• safeguards in the APA prevent bias and promote fairness

Question 29

APA: Adjudication: 3. Hearing Procedures

Answer 29

• vary widely from agency to agency
• agencies exercise significant discretion over the types of procedures used
• a formal hearing resembles a trial, but more items and testimony are admissible in an administrative hearing

Question 30

APA: Adjudication: 4. Agency Orders

Answer 30

• after a hearing, the ALJ issues an initial order
• either side may appeal to the commission that governs the agency and ultimately to a federal appeals court
• if there is no appeal or review, the initial order becomes final

Question 31

Freedom of Information Act (FOIA) of 1966

Answer 31

• the federal government must disclose certain records to any person on request
• a failure to comply may be challenged in federal district court

Question 32

Government-in-the-Sunshine Act of 1976

Answer 32

• “every portion of every meeting of an agency” that is headed by a “collegial body” is open to “public observation”
• procedures to ensure that the public is provided with adequate advance notice of meetings and agendas (with exceptions)

Question 33

Regulatory Flexibility Act of 1980

Answer 33

• whenever a new regulation will have a “significant impact upon a substantial number of small entities,” the agency must conduct a regulatory flexibility analysis
• must measure the cost imposed by the rule on small businesses and must consider less burdensome alternatives

Question 34

Small Business Regulatory Enforcement Fairness Act of 1996

Answer 34

1. Congress reviews new federal regulations, for at least 60 days before they take effect
2. Agencies must issue “plain English” guides that explain how small businesses can comply with their regulations
3. Regional Small Business Fairness Boards boards rate federal agencies