Chapter 6: Administrative Law

1. Chapter 6:Administrative Law

2. Introduction • Administrative Law is the rules, orders, and decisions of federal, state, and local government agencies established to perform a specific function.

3. § 1: Agency Creation and Powers • The study of Administrative Law requires an understanding of: • Enabling Legislation. • The Types of Agencies. • Agency Powers and the Constitution.

4. Enabling Legislation • Enabling legislation is a law passed by Congress to specify the name, purposes, functions, and powers of administrative agency. • Federal administrative agencies may exercise only those powers that Congress has delegated to them in enabling legislation. • Through similar enabling acts, state legislatures create state administrative agencies.

5. Types of Agencies • There are two basic types of administrative agencies: • Executive Agencies, including cabinet departments of the Executive Branch and their sub-departments. • Independent Regulatory Agencies outside the major executive departments.

6. Agency Powers and the Constitution • Administrative agencies make legislative rules, or substantive rules, that are as legally binding as laws that Congress passes. • Administrative agencies are sometimes referred to as the “fourth branch” of the U.S. government. • Article I of the U.S. Constitution authorizes delegating such powers to administrative agencies.

7. § 2: Administrative Process • Administrative process include three functions: • Rulemaking. • Investigation. • Adjudication.

8. Rulemaking • Rulemaking is the formulation of new regulation. • Notice and Comment Rulemaking involves three steps: • Notice of the proposed rulemaking. • Comment Period. • The Final Rule. • Case 6.1: AT&T Corp. v. Iowa Utilities Board (1999).

9. Investigation • The purpose of investigations is to ensure that the rule issued is based on a consideration of relevant factors rather than being arbitrary and capricious, which include the powers to: • Conduct Inspection. • Issue Subpoenas. • Subpoenas duces tecum -- requiring the production of documents • Subpoenas ad testificandum -- requiring testimony • Case 6.2: Federal Deposit Insurance Corp. v. Wentz(1995).

10. Adjudication • Administrative law provides a mechanism for adjudication of suspected rule violations. • Negotiate settlements. • Formal Complaints. • Hearing before Administrative Law Judges. • Agency Orders. • Case 6.3 Buck Creek Coal, Inc. v. Federal Mine Safety and Health Administration (1995).

11. § 3: Limitations on Agency Powers • All three constitutionally created branches of government have some measure of control over administrative agencies.

12. Judicial Controls • The Administrative Procedures Act provides for judicial review of most agency actions. • A party seeking review must demonstrate standing to sue, there must be actual controversy at issue, and have exhausted all possible administrative remedies. • Judicial review of agency action will frequently address whether the agency has acted beyond its authority or failed to discharge its responsibility.

13. Executive Controls • Executive branch of government exercises control over agencies through: • President power to appoint federal officers, and • President’s veto power.

14. Legislative Controls • The Congress exercises controls over agencies powers by: • Enacting and changing enabling legislation. • Determining funding for the agency. • Investigating agency actions. • Freezing agency enforcement efforts before they take effect. • Amending the Administrative Procedures Act.

15. § 4: Public Accountability • A number of pieces of legislation make agencies more accountable through public scrutiny. • Freedom of Information Act. • Government in the Sunshine Act. • Regulatory Flexibility Act. • Small Business Regulatory Enforcement Fairness Act.

16. Freedom of Information Act • This legislation requires the federal government to disclose certain “records” to “any person” on request, even if no reason is given for the request. • All federal government agencies are required to make their records available electronically.

17. Government in the Sunshine Act • The legislation requires that “every portion of every meeting of an agency” be open to “public observation.” • Adequate notice of meetings must be given to the public. • Closed meetings are authorized in a limited number of instances.

18. Regulatory Flexibility Act • Concerned over the effects of regulation on the efficiency of businesses, Congress passed the Regulatory Flexibility Act that requires an analysis of the cost a regulation will impose on small business and the considerations of less burdensome alternatives.

19. Small Business Regulatory Enforcement Fairness Act • This Act allows Congress to review new federal regulations for at least sixty-day before they can take effect.

20. §5: State Administrative Agencies • Generally state administrative agencies parallel the federal agencies. • IRS (federal) and State revenue agencies. • EPA (federal) and State natural resource agencies. • If there is a conflict between the federal and state agency, the federal agency will prevail.

21. Law on the Web • Federal Web Locator. • U.S. Government Printing Office (GPO Access). • Legal Research Exercises on the Web.