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17 Cards in this Set

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When may a legilative deligate is legislative functions?
They can create admin agencies with rulemaking and adjudicative powe as long as agency discretion in exercising these powers is limited by statutory scheme.

**The SC has upheld extremely broad agency delegations.
What are the substantive limitations on agency power?
1) Substantive due process applies to agencies, requiring reasonableness on the face of their enabling statute, agency rules and application of rules
2) Agencies must also act within their grant of statutory power.
How does an agency obtain information?
Via subpoena power it can require reports, physical inspections, or hearings.
When may a party refuse to testify or produce information?
1) 5th amd - Testimony of records would be self incrimination
2) 4th amd - Inspection would constitute an unreasonable search and siezure
What are the types of admin rules?
1) Legislative rule - fills gaps in a statute and presribes
2) Interpretive Rules - interpreting a statute before a court has ruled on it
3) Policy statement - Indications of how the agency will exercise its discretion
4) Procedural Rules - rules that govern the internal affairs and access to the agency
What is alternative way for an agency to formulate policy other than prospective rules?
Policy can be formulated by announcing its policy as part of a decisicion in adjudication.
When is rulemaking required?
Adjudicative policy making is improper where it is shown that:
1) A party detrimentally relied on previous decisions
2) Hardship caused by the retroactive effect was unproportional to its public importance, or
3) The policy adopted in adjudication was to be propective only.
What are the rule making proceedures laid out by the APA?
1) Notice - Notice of the proposed rulemaking must be published in the federal register
2) Participation - Interested parties have the right to submit data or arguments
3) Promulgation - Rules promulgated must include a concise statement of their basis and purpose.
Does an gency rule need to based on record?
It must give consideration to evidence produced at hearing but need not use that evidenc alone.
Does the APA ever call for a trial type hearing for rulemaking?
Yes, when the statute requires that a rule mbe made "on the record after opportunity for hearing"

**Known as formal rulemaking.
When does the right to an administrative hearing arise?
When required by due process.

**APA does not give any general right.
When is a hearing required for adjudication?
Where:
1) the material facts are in dispute,
2) a protected liberty or propety interest is involved, and
3) no emergency or other exception exists.
What is the form and type of hearing required?
Must merely provide an opportunity to be heard "at a meaningful time and in a meaningful manner"
How is it determined what constitutes a "meaningful time and meaningful manner?"
balance:
1) the private interest affected,
2) the risk of an erroneous deprivation of such interest, and
3) the gov't interest.
What is the proof that can be consider by an agency in making its decision after a trial-type hearing?
Only evidence on the record.

**It can, however, exert its own expertise in evaluating evidence.
What are the evidentiary rule for an agency hearing?
The evidence must be reliable, probative, and substantial.

**Ordinary rules of evidence do not apply.
Does a person compelled to appear before an agency have a right to counsel?
It is unclear if counsel must be provide, but the party may retain their own counsel.