LSTD Ch. 6 Administrative Law

Administrative Agencies

Experts

Specific regulations

Burden on the businesses

Small business

No Economies of scale

Society is better off

Its created by

Congress

Enabling Legislation

Name, Purposes, Functions and Powers

Enabling Statute

Defines its legal authority

Types

Executive

Branch of the government

Authority: The president

Independent

Apart from the government

Examples: FTC, SEC

Employees

Serve for fixed terms

Cannot be removed without just cause

President

Appoint members

"Fourth Branch"

Bureaucracy

By congress

The APA

Is it lawful?

Judicial control over administrative agencies

1. Unlawful

Arbitrary

Capricious

abuse of discretion

Not accordance with law

2. Laws arent lawful when

No rational explanation

Changed prior policy without explanation

Legally inappropriate factors

Failed to consider relevant factors

Decision contrary to the evidence

Rulemaking procedures

Notice-and-comment rulemaking

Notice of the proposed rulemaking

Publish notice in Federal Register

Where and When proceeding

Authority

Terms and subject matter

Scientific data backing up the proposal

Comment period

Interested parties express opinions

Change or mantain rule and answer why

Final rule

Published in the Federal Register

Code of Federal Regulations

Binding

Legislative rules

Affect Rights

States

Basis

Purpose

(No APA control) Informal Agency Actions

Interpretive Rules

Advice over enabling statute's meaning

dont follow

Rulemaking!

Judges Defend Agency decisions

But can the administrative agency interpretate its authority?

Chevron case

Yes

Congress is silent or ambiguous

Court should accept aAgency Reasonable? Court accept it

But in order to be assured, Agencies should follow the rulemaking procedure

Agencies enforce themselves

Investigation

After Final rule, who is not following it?

Types

Inspections

"friendly" way of getting the information

4th amendment

Protects against unreasonable seaches, need a warrant

Alcohol or firearms

No need for warrant

Subpoenas

Subpoena ad testificandum

Writ to make a witness appear at a hearing

Subpoena duces tecum

Bring it with u (books, records)

Limits

Purpose of the investigation

Legitimate purpose

Relevance of the information being sought

Use relevant info

Specifity of the demand for testimony or documents

Describe the material

Burden of the demand on the party from whom the info is being sought

Company pays

Adjudication

Negotiated Settlements

Solve the problem without additional proceedings

Business

Cooperative

Cheaper

Agencies

Conserve their own resources

Process of resolving dispute before a third neutral party

Agency issues a formal complaint

Answer by the company

Trial-like arbitration procedure

Administrative law judge (ALJ)

Works for the agency but has to be unbiased

APA makes sure of that

Separated

APA

Requires

Agency issue a notice

Facts and law of the complaint

legal authority for the hearing

Time

Place

Hearings

Formal adjudicatory hearing

Similar to trial

Differences

More evidences accepted

The burden of proof is place on the agency

Frequently informal

Agency orders

Initial order

Can be applied

Agency commission

Apply

Federal court of appeals

Final Order

Not applied

Final Order

Regulated by the three branches

Judicial

Power to review Agencies decision

Limitations

Exhaustion doctrine

Exhaust all the administrative remedies or processes

Unless remedies are inadequate

Ripeness doctrine

Requirements

Standing to sue

Controversy

Legislative

Take away power from agencies

Erase agencies

Limits to agencies (monetary, time)

Investigation of agencies

Freeze laws

Small business regulatory enforcement fairness act

they have 60 days after making a rule

Executive

Appoint federal officers

Veto power

Veto enabling legislation or modify it

Office Of information and Regulatory Affairs (OIRA)

Cost-effectiveness of agency rules

Review without following APA

Public accountability

Freedom of information Act

Agencies have to disclose info

Government in the Sunshine act

disclose info about meetings and agencies

limit

Crime, frustration of plans, future litigations or rulemaking

Regulatory Flexibility Act

If it harms to much, be flexible and seek another law

Small business Regulatory Enforcement Fairness Act

60 days after making rule

enforces the regulatory flexibility act

Receive comments

Allows small business recover their expenses and legal fees when they are considered excessive