Powers and Functions of Administrative Agencies

1. Powers and Functionsof Administrative Agencies Quiz on Admin Law

2. Group Presentation Consumer Protection Agency. Group 5 = For new agency Group 6 = Against New Agency Explain Law. Read the article, give a brief overview of the law, and answer questions. Questions what is an administrative agency?  would it be necessary in this case? How else could Congress do this?  what are the positives and negatives of this law (very briefly) and deferring to an agency to do it (elaborate a bit more here).     Article Link http://www.latimes.com/classified/realestate/news/la-fi-harney2-2009aug02,0,7083818.story

3. New Health Care Law How can Congress implement its health reform? What powers should be delegated to an administrative agency? What do other countries delegate?

4. Agency Creation and Powers • Under the U.S. Constitution, Congress may delegate the task of implementing its laws to government agencies. • Enabling legislation

6. Executive Departments and Important Subagencies

8. Administrative Process Three functions of administrative process are: Rulemaking Enforcement Adjudication

9. Auto Safety Case p. 185 CASE 6.1Center for Auto Safety and Public Citizen, Inc. v. National Highway Traffic Safety Administration (2006).Guidelines were not policy (or law), but merely guidelines so they were unenforceable. Why is this issue important?

10. End-of-Chapter Q. 3. p. 203 EPA Delegates Test to Industry • EPA too busy to write rules for a new emission standards passed by Congress • Instead, demanded that industry prepare its own test for approval by EPA • Ethyl Corporation sued saying the private nature of the industry’s own test violates the notice of rulemaking rules • What do you think? Rulemaking • Notice of Proposed Rulemaking— Begins with the publication of the proposed regulation in the Federal Register. • Opportunity for Comment— After notice is published, time is allowed for private parties to comment on the proposed rule. • Publication of the Final Rule —After the agency reviews the comments, it drafts the final rule and publishes it. • IRS Guidance/Issuances • Internal Revenue Code • Tax Regulations (subject to) • Internal Revenue Bulletins • Revenue Rulings • Revenue Procedures • Private Letter Rulings • Technical Advice Memorandum • Notice • Announcement • Press Release Subject to Not subject to notice of rulemaking

11. Subpoenas Orders that direct individuals to appear at a hearing or to hand over specified documents. Inspections and Tests Used to gather information and to correct or prevent undesirable conditions. Agencies Investigate • Limits on administrative investigations include the following: • Legitimate purpose. • The information being sought must be relevant. • The demand for testimony or documents must be specified. • The burden of the demand is on the party from whom the information is sought.

12. Agencies Adjudicate

13. Limitations on Agency Powers • Power of Agencies. Combining the functions normally divided among the three branches of government into an administrative agency concentrates considerable power in a single organization. • Controls on Agencies. As a result, several controls exist toplace such power in check, including: • Judicial Controls • Executive Controls • Legislative Controls

14. Judicial Review of Agency Actions The FCC concedes that it lacks express authority to prevent internet service providers from blocking or slowing traffic, the FCC argued it has “ancillary” authority to do so because the Act says it can regulate practices as “reasonably ancillary to the … effective performance of its statutorily mandated responsibilities.” • Review of Rule Making and Informal Discretionary Actions. • “Arbitrary and Capricious” standard. • Review of Factual Findings. • Limited to Power Granted by Congress (FCC Net Neutrality – courts struck down earlier version as outside scope of authority -) • Review of Statutory Interpretations. • CASE 6.2Massachusetts v. Environmental Protection Agency (2007).EPA had power—and duty—to regulate greenhouse gases, including carbon dioxide, under the Clean Air Act. • EPAs arguments • Congress is considering other Global Warming laws • Congress already regulates CAFÉ standards through the DOT • The timing is not right Side Point Plaintiffs had standing to sue because global warming will cause the oceans to rise flooding parts of the states they are from.

15. Judicial Review of Agency Actions • Limited Review of Procedures. • No Right to Probe the Mental Processes of the Agency: a court may not inquire into the decision-making process, but the legislature may. • Timing of Review: • Exhaustion of Administrative Remedies • Ripeness - legal, not hypothetical questions • End-of-Chapter Q. 4. p. 203 – Not assigned • FDA sued for refusing to approve cancer drug on safe and effective standard • Terminally ill patients said should not apply to them because they are dead without the drug (may be dead with it too) • Person has a right to refuse drugs even if the refusal causes death – isn’t taking a risky drug the same thing in reverse? • What is the standard of review for this case?

16. Public Accountability • Freedom of Information Act of 1966.Requires the government to disclose records to “any person” on request. • Government-in-the-Sunshine Act of 1976 • “[E]very portion of every meeting of an agency” must be open to “public observation.” • Procedures must be implemented to ensure that the public is provided with adequate advance notice of the agency’s scheduled meeting and agenda. • Regulatory Flexibility Act of 1980 • Concern over the effects of regulation on the efficiency of business, particularly smaller ones, led Congress to pass the Regulatory Flexibility Act in 1980. • The act requires a regulatory flexibility analysis whenever a new regulation will have a “significant impact upon a substantial number of small entities.”

17. Decision-Making Power of Agencies • Only Delegated Powers: an administrative agency may do only what Congress or the state legislature has authorized it to do. • Obligation to Follow Own Rules: agencies are required to follow their own rules and regulations. • Explanation of Decisions: an agency must explain the basis for its decisions and must show that it has taken into account all relevant considerations as required by the statute.

18. State Administrative Agencies • States also have administrative agencies • If state and federal conflict – federal wins.

19. Finding an Agency’s Rules and Procedures • The Federal Register and the Code of Federal Regulations (CFR) provides notice of rules and changes.