Briefly explain administrative law.
- occurs on all levels of government
- consists of rules, regulations, orders, and decisions of administrative agencies
- created to carry out legislative powers and duties of agencies
What is the purpose of agencies?
relieve legislature from task of considering every aspect of a specific problem in order to address it
What does an enabling statute do?
creates and empowers an agency
What are the 2 types of agencies?
- executive agencies
- independent regulatory agencies (president cannot remove them without good cause)
Which functions of government do agencies perform?
All of them
- making rules
- enforcing the law
- adjudicating controvercies
What does zero-budgeting mean?
The budget for the upcoming year has to be justified at the end of the fiscal year
What are the 3 types of rulemaking?
What is the process of informal rulemaking?
- notice of proposed rule
- opportunity for comments and hearing of interested parties
- publication of final draft at least 30 days before its effective date
Briefly describe formal rulemaking.
- more complex than informal
- includes trial-like agnecy hearing, including a statement of findings and conclusions
What is hybrid rulemaking?
- a mix of informal and formal rulemaking
- informal rulemaking plus additional procedures according to enabling statute
What are interpretive rules?
- statements issued by an agency indicating how it construes its governing statute
- statements of policy - agency announces a proposed course of action that the agency intends to follow in the future
- provide clarification or guidance
What are procedural rules?
- rules issued by an agency establishing its organization, method of operation, and rules of conduct
- they don't require procedure and comment (procedural due process), because no rights are taken away
What are the 2 forms of rules an agency can establish?
How can agencies investigate and compel disclosure of information?
- conducting inspections
- issuing subpoenas
What is adjudication in relation to agencies?
process by which an agency resolves disputes
What does exhausting your administrative remedies mean?
you have to go through administrative process with the agency before going to court
What kinds of procedures do agencies use to resolve disputes?
- informal - mediation, arbitration, conciliation
- formal - must follow due process, hearing before an administrative judge, no jury
Briefly describe the 2 kinds of judicial review that apply to agency rules and orders.
- general: complaining party must have been injured by agency action and must have exhausted all administrative remedies
- review of questions of law: check with enabling statute if agency exceeded its authority or violated a constitutional provision
- review of questions of fact: did agency have a rational basis for its decision?
What does arbitrary mean?
randomly selecting with no rational or reasonable basis
What is a sunset review?
agency is only to last 5 years, then reviewed
How can legislature control agencies?
- controlling the budget
- amending the enabling statute
- establishing general rules
- reversing or changing an agency rule through legislation
- reviewing agencies by Congressional oversight committees
- Congressional power to confirm high-level administrative appointments
How can executive control agencies?
- president can appoint or remove chief of executive agency (not with independent/private)
- president can submit budget to Congress and ask to impound monies or restructure agencies
- president has veto power
What is the Government in the Sunshine Act?
- requires meetings of many federal agencies to be open to the public
- does not apply to staff only meetings
- agencies may close meetings for special reasons
What is the Freedom of Information Act?
gives public access to agency records
- agency may deny access to
- - national defense or foreign policy
- - specific exemptions by statute
- - trade secrets/privileged commercial information
- - inter-agency or intra-agency memorandum
- - personal/medical information
- - investigatory records needed for law enforcement
- - relating to the regulation of financial institutions
What limits administrative agencies?
- judicial review
- legislative control
- executive control
- disclosure of information
Which acts regulate disclosure of information by agencies?
- Government in the Sunshine Act (public meetings)
- Freedom of Information Act (provide access to information)
- Regulatory Flexibility Act (consider costs of regulation for small businesses)
- Small Business Regulatory Enforcement fairness Act (Congress can review new regulations for at least 60 before they can take effect)
- Equal Access to Justice Act (may recover attorney's fees and other costs if subject to unjustified federal agency action)