The Law Of Administrative Agencies

Front 1

What were the first two federal administrative agencies?

Back 1

ICC - Interstate Commerce Commision; FTC -Federal Trade Commission

Front 2

What part of the government created the ICC and FTC?

Back 2

Leglislative branch - Congress

Front 3

What are the 3 branches of government?

Back 3

Executive,
Leglislative,
Judicial

Front 4

Any rule (statute or regulation) that directly or indirectly affects an administrative agency.

Back 4

Administrative Law

Front 5

A rule that governs the internal processes of an administrative agency.

Back 5

Procedural Rule

Front 6

A rule that creates, defines, or regulates the legal rights of administrative agencies and the parties they regulate.

Back 6

Substantive Rule

Front 7

Any body that is created by the legislative branch to carry out specific duties

Back 7

Administrative agency.

Front 8

An agency whose appointed heads and members serve for fixed terms and cannot be removed by the President except for reasons defined by Congress.

Back 8

Independent Administrative Agency.

Front 9

An agency located within a department of the executive branch of government; heads and appointed members serve at the pleasure of the President.

Back 9

Executive Administrative Agency.

Front 10

What is the APA?

Back 10

Administrative Procedure Act.

Front 11

Administratives Agencies are considered to be what branch of the government?

Back 11

The Fourth Branch (has all 3 powers).

Front 12

What is the legislative power that an administrative agency has?

Back 12

The power to make rules for an entire industry.

Front 13

What is the judicial power that an administrative agency has?

Back 13

The power to adjudicate (decide) individual cases.

Front 14

What is the executive power that an administrative agency has?

Back 14

The power to investigate corporate misconduct.

Front 15

What are the two TYPES of administrative agencies?

Back 15

1) Independent
2) Executive

Front 16

What are 4 reasons that administrative agencies have grown rapidly since the late 1890's?

Back 16

1) Flexibility
2) Need for Expertise
3) Prevention of overcrowding in Courts
4) Expeditious solutions to national problems.

Front 17

What year was the SEC created?

Back 17

1934

Front 18

The FCC, FTC, and SEC are examples of an independent or executive agency?

Back 18

Independent

Front 19

The FDIC, OSHA, and VA are examples of an independent or executive agency?

Back 19

Executive

Front 20

Legislation that grants lawful power to an administrative agency to issues rules, investigate potential violatons of rules or statutes and adjudicate disputes.

Back 20

Enabling Legislation

Front 21

The power delegated by Congress to an administrative agency to make rules that must be adhered to by individuals and businesses regulated by the agency; these rules have the force of law.

Back 21

Legislative power.

Front 22

The power delegated by Congress to an administrative agency to investigate whether the rules enacted by the agency have been properly followed by businesses and individuals.

Back 22

Executive power.

Front 23

What does an enabling statute do?

Back 23

Delegates the agency congressional legislative power, executive power, and judicial power.

Front 24

What is the purpose of delegating congressional legislative power to an agency?

Back 24

For the purpose of serving the "public interest, convenience, and necessity."

Front 25

An enabling statute also delegates executive power for the purpose of?

Back 25

For the purpose of investigating potential violations of rules or statutes.

Front 26

An enabling statute also delegates judicial powers, for what purpose?

Back 26

For the purpose of settling or adjudicating any disputes it may have with businesses or individuals.

Front 27

Because many people feel the "Fourth" branch violates the spirit of the Constitution; in 1995 Congress passed a bill that did what?

Back 27

A bill that would require all agencies (both executive and independent) to do a cost-benefit analysis of any proposed regulation costing more than $25 million.

Front 28

In a cost-benefit analysis, what must an agency identify?

Back 28

They must identify possible alternatives to proposed regulation (exceeding $25 mil) that would require no government action.

Front 29

What are the 3 functions to administrative agencies?

Back 29

1) rule making
2) decision making of individual cases brought before an ALJ by agency staff
3) administrative activities.

Front 30

What administrative activies are included in the function of administrative agencies?

Back 30

(a) informal advising
(b) preparing report and doing studies of industries and consumer activities
(c) issuing guidelines for the business community

Front 31

Administrative agencies are authorized to perform the legislative function of making rules and regulations by virtue of:

Back 31

The enabling (or enacting) statutes.

Front 32

What establishes the standards and procedures federal adminstrative agencies must follow in their rule-making and adjudicative functions.

Back 32

Administrative Procedure Act (APA) of 1946

Front 33

Formal Rule Making is found under what section of the APA?

Back 33

Sections 556 and 557

Front 34

What are the 3 major rule-making models.

Back 34

1) Formal
2) Informal
3) Hybrid

Front 35

The power delegated by Congress to an administrative agency to adjudicate cases through an administrative proceeding; includes the power to issue a complaint, hold a hearing by an ALJ, and issue either an initial decision or a recommended decision to a head(s) of an agency.

Back 35

Judicial Power

Front 36

ALJ is an acronym for:

Back 36

Administrative Law Judge

Front 37

Under formal rule making, an agency notice of proposed rule-making is made public in what document?

Back 37

Federal Register

Front 38

What are the 3 requirements of a formal rule-making procedure?

Back 38

1) agency notice to public in Federal Register
2) public hearing with witnesses and testimony
3) making and publication of formal findings by the agency

Front 39

When promulgating regulations, most enabling statutes DO or DO NOT require agencies to go through a formal rule-making procedure?

Back 39

DO NOT.

Front 40

Informal Rule-Making is provided by what Section of the APA?

Back 40

Section 553(c) of the APA.

Front 41

Under informal rule-making, what does the APA require?

Back 41

1) give prior notice of proposed rule in the Federal Register
2) provide an opportunity for all interested parties to submit written comments
3) publish the final rule, with a statement of its basis and purpose in the Federal Register.

Front 42

FORMAL or INFORMAL rule-making is the model most often used by administrative agencies?

Back 42

INFORMAL

Front 43

What type of rule-making combines some of the aspects of formal and informal rule-making

Back 43

Hybrid Rule-Making

Front 44

What type of rule-making relates to "military or foreign affairs" and "agency management of personnel?"

Back 44

Exempted Rule-Making

Front 45

After a rule is promulgated by an administrative agency, where is it published?

Back 45

In the Federal Register.

Front 46

After a rule is published in the Federal Register, it generally becomes _________?

Back 46

Law

Front 47

What are 3 exceptions to making a promulgated rule a law after being published in the Federal Register?

Back 47

1) the enabling act was UNCONSTITUTIONAL because it was too VAGUE and NOT LIMITED
2) the agency action violated a constitutional standards
3) the agency act was beyond the SCOPE OF POWER granted to it by Congress

Front 48

What is the 4-step process after an agency hears a case (adjudicate)?

Back 48

1) Agency receives Complaint and notifies party against who complaint is made for violating an administrative law
2) Agency conducts an investigation
3) Negotiates with the party if the complaint has merit; if negotiations are unsuccessful, file a complaint with a ALJ
4) ALJ hears and decides case

Front 49

All steps in adjudicating an administrative law case is set out in the ___________

Back 49

APA

Front 50

An agreement by a business to stop an activity an administrative agency alleges to be unlawful and to accept the remedy the agency imposes; no admission of guilt is necessary

Back 50

Consent Order

Front 51

Of those who violate an administrative law, there are 2 options to seek to stop the violation:

Back 51

(1) consent order
(2) voluntary compliance

Front 52

When a party decides to "consent," is there an admission of guilt?

Back 52

No, only a promise that it will not do such unlawful act again and agree to remedy the unlawful act.

Front 53

A judge, selected on the basis of a merit exam, who is assigned to a specific administrative agency.

Back 53

ALJ - Administrative Law Judge.

Front 54

If a complaint is not settled by voluntary compliance or consent order, what happens?

Back 54

A formal complaint and hearing by an ALJ.

Front 55

How long can a hearing before an ALJ take?

Back 55

Several months or years.

Front 56

A legal standard whereby a bare majority (51%) of the evidence is sufficient to justify a ruling.

Back 56

Preponderance of evidence.

Front 57

After an ALJ hears a case, what happens?

Back 57

Initial recommendation decision, which is final unless an appeal is taken by either the staff or the respondent.

Front 58

If the party that loses wishes to appeal, what must it file?

Back 58

A MOTION FOR APPEAL with the federal circuit court of appeals that has JURISDICTION.

Front 59

What standards do the judicial review process use?

Back 59

1) it acted in a constitutionally approved way
2) it acted within the scope of its jurisdiction as outlined by the enabling statute
3) it followed proper statutory procedures and did not act ARBITRARY or CAPRICIOUS

Front 60

What is the limitation the Executive Branch puts on Administrative agencies?

Back 60

1) The power of the president to appoint the heads of agencies;
2) power of the OMB (Office of Management & Budget) to recommend a fiscal year budget; and
3) presidential executive order

Front 61

What is the OMB?

Back 61

Office of Management and Budget

Front 62

What are 4 limitations the Legislative Branch (Congress) places on administrative agencies?

Back 62

1) oversight power
2) investigative power
3) power to terminate an agency; and
4) power to advise and consent on presidential nominations for heads of agencies

Front 63

What does Congress DELEGATE to administrative agencies?

Back 63

It's own legislative power over a narrow area of commerce.

Front 64

What is the greatest legislative limitations on agency power?

Back 64

Congress's right to approve or disapprove an agency budget submitted by the OMB.

Front 65

If Congress disagrees with a budget, what can it do?

Back 65

1) slash the budget
2) refuse to budget the agency at all.

Front 66

What limitation does the judicial branch place on administrative agencies?

Back 66

1) curb rule-making by reversing or modifying such actions.

Front 67

Name 3 things an advocacy group must show in order to get into court.

Back 67

1) that it has standing to sue,
2) that it has exhausted all internal appeals within the agency; and
3) that the dispute is ripe for resolution

Front 68

What is Sunset Legislation?

Back 68

The bill that creates the agency calls for its demise after a fixed period, unless Congress reauthorizes the agency

Front 69

Name the 4 specifics acts that establish Administrative Law

Back 69

1883: Pendleton Act, establishing competitive civil service.
1887: Creation of Interstate Commerce Commission
1914: Federal Trade Commission.
1946: Administrative Procedure Act.
triggered by New Deal, came along with growth in Federal bureaucracy

Front 70

What are the sources of Administrative Law at the STATE level?

Back 70

1) Governor
2) Administrative Agencies

Front 71

What are the sources of Administrative Law at the FEDERAL level?

Back 71

1) President
2) Administrative Agencies

Front 72

According to Justice Breyer, what are the 4 definitions of Administrative Law?

Back 72

(1) define the authority and structure of administrative agencies;
(2) specify the procedural formalities employed by agencies;
(3) determine the validity of Agency decisions; and
(4) define the role of reviewing courts and other governmental entities in relation to admin. agencies.

Front 73

Broad "book" definition of administrative law.

Back 73

Any rule that directly or indirectly affects an administrative agency

Front 74

Common sense definition of administrative law.

Back 74

1) Laws that define the legal powers of the government agencies and the limits of
2) Statutes creating or modifying the powers of administrative agencies
statutes
3) Rules, regulations, orders and decisions made by administrative agencies
4) The case law covering judicial review of administrative agencies

Front 75

What does an enacting (or enabling) statute do?

Back 75

Defines agency role or mission.

Front 76

What does the executive portion of the executive branch of administrative agencies do?

Back 76

1) inspection and data gathering
2) give advice

Front 77

What does the judiciary branch of administrative agencies do?

Back 77

1) Hearings & adjudication of cases
2) Settles cases and makes law.

Front 78

What does the judicial branch of administrative agencies do?

Back 78

Purpose and Function of Rule Making

Front 79

What is considered the BIG CONCEPT behind administrative agencies?

Back 79

Delegated authority!!

Front 80

Name 2 reasons why would we want to delegate a problem for agencies to handle?

Back 80

1) There is a problem that requires governmental response or intervention
2) Our existing structures – the president, the congress, the courts – are inadequate to respond to that problem efficiently and effectively.

Front 81

What are some Benefits of Administrative Agencies??

Back 81

1) Development of Broad levels of specialized - expertise

2) Response to problems is more efficient

3) Much more efficient supervision

4) Much better at disseminating information

5) More informal setting for a hearing

6) More accessible to Individuals (eg., SSA)

Front 82

What are some grounds for reversing administrative agency decisions?

Back 82

1) arbitrary and capricious
2) exceeded its authority
3) violated a constitutional protection

Front 83

What section is the FOIA?

Back 83

Freedom of Information Act (FOIA) 5 U.S.C.A. § 552(a)

Front 84

What year was the FOIA created?

Back 84

1966

Front 85

What rights does the FOIA give you?

Back 85

The right to inspect all government records except those containing military, intelligence, trade secrets, or revealing private personnel actions

Front 86

What are the 2 broad classes excluded from "any person" under the definition of FOIA.

Back 86

1) federal government agencies
2) fugitives from justice

Front 87

When is an FOIA request "properly received?"

Back 87

1) Requester has reasonably described the records he wants
2) If requester asks to be placed in a more favorable fee category and you disagree, you may need to ask him to justify the category.

Front 88

If a FOIA request is overly broad or burdensome, does that mean it is not reasonably described?

Back 88

No.

Front 89

What Constitutes an "Agency Record" for FOIA Purposes?

Back 89

"Agency records" are those created or received in the course of conducting agency business, including paper, electronic or other physical forms. They include reports, letters, photographs, recordings, e-mails, etc.

Front 90

Are objects, such as furniture, considered agency records?

Back 90

NO

Front 91

Is Private material brought into the agency for employee's reference considered agency records?

Back 91

NO

Front 92

New Deal programs were created in what years?

Back 92

1932 to 1940

Front 93

What was created in 1946?

Back 93

Administrative Procedure Act

Front 94

Statutes that give appropriate officials the power to implement and enforce the law, often by the creation of new administrative agencies. Agencies then promulgate rules/regs to meet legislative goals

Back 94

Enabling Acts

Front 95

All administrative agencies and their regulations are in theory “monitored” by the legislative body (e.g., Congress) that created them. This is considered:

Back 95

Executive Oversight

Front 96

What are 4 values to consider in Administrative Law?

Back 96

1) Fairness

2) Accuracy

3) Efficiency

4) Acceptability

Front 97

What are Three Types of Rules Issued by Admin. Agencies?

Back 97

1) Substantive (Legislative) rules
---Protect rights and liberties

2) Procedural rules
---Define the legal procedures and methods to be followed.

3) Interpretive rules
---Clarify agency position on substantive and procedural rules

Front 98

Agency-issued explanations of how the agency interprets its governing statute
Not subject to APA procedural requirements

Back 98

Interpretative Rules

Front 99

Why was the APA enacted?

Back 99

1) Passed in 1946 to make agency procedures more uniform

2) Due Process: Notice and Opportunity to be Heard

Front 100

What sections of the APA have to do with Adjudication?

Back 100

Sections 556, and 557

Front 101

What is considered in "standing" for a case?

Back 101

(1) Has the complainant alleged “injury in fact”?

(2) Is the interest sought to be protected by the complainant “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?”

Front 102

What is the Zone of Interest test?

Back 102

Prevents standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”

Front 103

What are some judicial remedies in an administrative action?

Back 103

1) declaratory judgment
2) writ of mandamus
3) preliminary injunction
4) permanent injunction
5) monetary damages and attorney fees (but only if allowed by statute)

Front 104

What is "Intelligible Principle" - Rulemaking?

Back 104

1) The court has to be able to review an agency's actions to make sure they are within the congressional grant of power.
2) If the legislature does not provide an "intelligible principle" to guide the court in reviewing agency action, the courts will strike down the agency action
--- Key - the law is constitutional, but it does not provide useful power to the agency
Under the delegation doctrine, the law was unconstitutional

Front 105

What is an Intelligible Principle?

Back 105

1) Specific guidance is best
Congress will provide very specific guidance if it wants to limit agency discretion - the ADA
2) General/ambiguous guidance is also usually OK
‘‘in the public interest"
-- Depends on whether context can provide meaning

Front 106

Where can public agency rules be found?

Back 106

1) Code of Federal Regulations
2) Federal Register

Front 107

What is the purpose of the Federal Register??

Back 107

1) Centralized publication of key agency documents

2) Daily newspaper of the executive branch

3) Published daily (federal working days) since March 14, 1936

4) Purpose---“To eliminate the problem of secret law“ (Cervase v. Office of the Federal Register, 580 F.2d 1166, 1171 (1978))

Front 108

How is the Federal Register indexed?

Back 108

1) Cumulates quarterly
Annual index in December edition
2) Indexed by agency and topic

Front 109

How is the Code of Federal Regulations Indexed?

Back 109

1) CFR Index and Finding Aids

2) CIS Index to the Code of Federal Regulations

Front 110

Where do we research Ohio administrative law?

Back 110

1) Register of Ohio
2) Ohio Administrative Code

Front 111

Under Section 706 (Judicial Review), a court must set aside an agency action that is:

Back 111

1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
2) Unconstitutional
3) Exceeds statutory jurisdiction
4) Violates own procedural rules
5) Unsupported by substantial evidence (formal proceedings)
6) Not justified by facts

Court decision must be based on “the whole record”

Front 112

How many days does the public have to comment on rule-making.

Back 112

30 days

Front 113

How many days after filing the proposed rule, the agency may adopt the proposed rule and file it in final form?

Back 113

60 days.

Front 114

What doe the "111" rules do in regards to rule-making?

Back 114

Files copies of the proposed rule with the Secretary of State and LSC at least 65 days before adopting the rule of Ohio.

Front 115

Name the administrative act of 1883.

Back 115

Pendleton Act (civil service)

Front 116

Name the administrative act of 1887

Back 116

Creation of the ICC (Interstate Commerce Commission)

Front 117

Name the administrative act of 1914

Back 117

Creation of the FTC (Federal Trade Commission)

Front 118

Name the administrative act of 1946

Back 118

Administrative Procedures Act

Front 119

Formal Rule-making in Ohio is covered under what section?

Back 119

Section 119

Front 120

Informal Rule-making in Ohio is covered under what section?

Back 120

Section 111

Front 121

What are the 5 functions of administrative agencies?

Back 121

1) Disseminate information
2) Investigate Complaints
3) Establish rules and Procedures
----Substantive
----Procedural
----Interprative
4) Administration of benefits
--- Make decisions on those actions that come before it in claims and hearings
5) Enforcement of laws ‑‑‑‑Regulations
--- Prosecute those who refuse to obey the regulation (NO CRIMINAL!)

Front 122

What are the 8 key FOIA exemptions?

Back 122

1) Classified documents
2) Internal Personnel Rules and Practices
3) Information exempt under other laws (e.g. IRS)
4) Confidential Business Information
5) Internal Goverment Communications
6) Personal privacy
7) Law Enforcement
8) Financial Institutions

Front 123

When was the Privacy Act enacted?

Back 123

1974

Front 124

What does the Privacy Act of 1974 do?

Back 124

Essentially the Privacy Act makes illegal non-consensual secondary use of information disclosed to an agency.