Chapter 23 Flashcards
(30 cards)
How are administrative agencies formed?
Congress or state legislature usually adopts a general statue and leaves its implementations - the details - to an administrative agency (the agency has the authority to create more specific rules)
- Benefits to society, environment, but great costs to businesses
Enabling Legislation
Is passed to create an administrative agency. It specifies the name, purposes, functions and powers of the agency.
Each agency has the authority to…
Make, enforce, and judge rules
Types of Agencies:
- Federal Executive Agencies
- Independent Regulatory Agencies
Federal Executive Agencies
These agencies are formed to help the President carrying out executive functions. They include the cabinet departments of the executive branch.
Independent Regulatory Agencies
These agencies are outside the major executive departments (Far more independent agencies than federal executive agencies)
- Created by the statutory process
Exhaustion Doctrine
You have to exhaust the whole administrative process the agency has in place before you can go to court
Checks and Balances within Agencies
- Executive: appointment of officers and veto power
- Legislative: enabling legislation allows Congress to abolish an agency and to defund
- Judicial: court of agency actions, but subject to exhaustion doctrine
Administrative Procedure Act (APA) of 1946
This is the general statute which details the procedural requirements of all federal agencies. Congress can change the procedural requirements for an agency in its enabling statute. But in the absence of the specific directive from Congress, agencies follow APA. (Attempt to create more control over agencies - they had too much power)
The Arbitrary and Capricious Test
- Failed to provide a rational explanation for its decision
- Changed its prior policy without justification
- Considered legally inappropriate factors
- Entirely failed to consider a relevant factor
- Rendered a decision plainly contrary to the evidence
Fair Notice
Before agencies can change their rules they must give fair notice of what conduct will be expected in the future
What is one of the best defenses against administrative agencies?
They are treating you arbitrarily and unfairly
How does the APA define a “rule”?
An agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law and policy
Notice-Comment-Rulemaking
- Notice of the Proposed Rulemaking
- Comment Period
- Final Rule
- Informal Agency Actions
Notice of the Proposed Rulemaking
FEDERAL REGISTER
Every new proposed rule from every agency must go to this registry
Comment Period
The public has the right to comment (public hearings and emails) before a rule goes into effect
Final Rule
CODE OF FEDERAL REGULATIONS
Once published - federal law and you are expected to follow the rule
Informal Agency Actions
Interpretive Rules - not required to be given in advance
Agency Enforcement
- Inspections
- Subpoenas
- Search Warrants
Inspections
Most common way for an agency to address things, less expensive if a business is cooperative (if you consent to an inspection, you waive your 4th Amendment right)
Subpoena ad testificandum
“to testify”
Calling witness to testify under oath
Subpoena duces tecum
“bring it with you”
Bring documents with you, custodian must authenticate, custodian answers questions
Limits on Subpoenas
4th and 5th Amendments (what they can ask and what you are required to answer)
Search Warrants
If you consent to their presence you waive your 4th amendment right
(in certain situations, they are allowed to search without a warrant)
