After reading this chapter, you will be able to answer the following questions: What is administrative law? What is an administrative agency? What types of powers do administrative agencies have? How and why are administrative agencies created? What is the difference between an executive agency and an independent agency? What is the Administrative Procedures Act?
Trang 1Administrative Law
Trang 2 Administrative Law: Consists of substantive and procedural rules created
by administrative agencies
Administrative Agency: Any body created by the legislative branch
(Congress) to carry out specific duties
Referred to as the unofficial “fourth branch of government”
First federal administrative agency: Interstate Commerce Commission (ICC)
Created by Congress through “enabling legislation”, a statute that specifies
names, functions and specific powers of agency
Investigative powers include power to issue subpoena/subpoena duces tecum
Administrative Law Judge: Presides over administrative hearing; may
attempt to encourage parties to settle, but has power to enter binding
decision
Trang 3 Executive Agency: Generally within executive branch of government, under a
“cabinetlevel” department; also referred to as “cabinetlevel” agency
Examples include Federal Aviation Agency (FAA) and Food and Drug
Administration (FDA)
Independent Agency: Governed by board of commissioners appointed by
president, with “advice and consent” of U.S. Senate
Examples include Federal Trade Commission (FTC) and Securities and
Exchange Commission (SEC)
Hybrid Agency: Characteristics of an executive and independent agency
Example: Environmental Protection Agency (EPA)
Trang 4Independent Agencies
Trang 5(Continued)
Executive Agencies
Trang 6Imposes specific guidelines on agency rulemaking:
Informal RuleMaking (“NoticeandComment” RuleMaking): Proposed
rule published in Federal Register, with opportunity for public comment
Formal RuleMaking: Publication of proposed rule in Federal Register,
then formal public hearing (including complete transcript)
Hybrid RuleMaking: Combines best features of formal and informal rule
making; proposed rule published in Federal Register, with opportunity for
public submission of written comments, then informal public hearing
Exempted RuleMaking: Agency decides whether public participation
allowed; includes rulemaking proceedings with regard to “military or
foreign affairs,” “agency management or personnel,” and “public property, loans, grants, benefits, or contracts” of an agency
Trang 7 Agency drafts rule in consultation with interested parties
Proposed rule published in Federal Register
Interested parties can file written comments on written draft within 30day
period from publication in Federal Register
Final draft of rule published in Federal Register 30 days before it takes
effect; statement of its purpose and costbenefit analysis must accompany
its publication
Agency receives feedback from interested parties during 30day period and makes decision on whether final draft should be rewritten. If not, it
becomes law
Trang 8 Interpretive Rules: Rules that do not create any new rights/duties; instead,
a detailed statement of agency’s interpretation of existing law, and the
steps a party must take to comply with existing law
Policy Statements: General statements about directions of agency
regarding rulemaking or enforcement activities; no binding impact; do not directly affect legal rights/responsibilities
Regulated Negotiation (“Regneg”): Mediated agreement (involving
competing interest groups) on agency rulemaking
Trang 9Limitations on Agency Powers
Trang 10 Requires that federal agencies publish in Federal Register places where public can
access agency information
Any individual or business may make a FOIA request
Information may be obtained regarding how agency acquires and spends its money
Statistics and/or information collected by agency on a particular topic is available
Citizens entitled to any records government has about them
Exemptions:
National Security
Internal Agency Matters (Example: Personnel Issues)
Criminal Investigations
Financial Institutions
Individual’s Private Life
Trang 11agency headed by collegiate body (i.e., two or more
persons, with majority appointed by president upon
“advice and consent” of Senate)
Trang 12Federal agency may not disclose
information about an individual to other
agencies/organizations without that
individual’s written consent