Exam 2 - Administrative Law (Ch. 19) - Study Guide Flashcards
administrative law
• Congress delegates some of its authority to make and implement laws, particularly in highly technical areas, to administrative agencies
executive agencies
- within the cabinet departments of the executive branch
* subject to the power of the president to appoint and remove their officers
independent agencies
- officers serve fixed terms and
* cannot be removed without just cause
state and local agencies
- often parallel federal agencies in areas of expertise and subjects of regulation
- federal rules take precedence when there is a conflict with state rules
executive controls
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
legislative controls
• 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
judicial controls
- 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
Administrative Procedure Act (APA) of 1946
- rulemaking, investigation, and adjudication make up the administrative process
- the APA imposes procedural requirements that agencies must follow
APA: Arbitrary and Capricious Test
• 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”
APA: Arbitrary and Capricious Test factors
- Failure to provide a rational explanation for a decision
- Change in prior policy without an explanation
- Consideration of legally inappropriate factors
- Failure to consider a relevant factor
- Render of a decision plainly contrary to the evidence
APA: Rulemaking
- 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
APA: Rulemaking Steps
- Notice of Proposed Rulemaking
- Comment Period
- The Final Rule
APA: Rulemaking: Step 1. Notice of Proposed Rulemaking
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
APA Rulemaking: Step 2. Comment Period
- 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
APA: Rulemaking: Step 3. The Final Rule
- 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
APA: Informal Agency Actions
- 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
judicial deference to agency decisions
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
APA: Investigation
- 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
APA: Investigation Tools
- Inspections and Tests
- Subpoenas
- Search Warrants
APA: Investigation: 1. Inspections and Tests
through on-site inspections and testing, agencies gather information to prove a regulatory violation or to correct or prevent a bad condition
APA: Investigation: 2. Subpoenas
- 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
APA: Investigation: Subpoena limits
- 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
APA: Investigation: 3. Search Warrants
- 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
APA: Adjudication
adjudication involves the resolution of disputes by an agency
