ADMINISTRATIVE LAW 2009
Introduction
Powers invested in administrative agencies
1. Federal – i.e. EPA, National Relations Board
2. State – Department of Transportation
3. Local – Valpo Dept of Health
4.County – Administrative Agencies
Administrative Procedure Act – the key statute that governs agenices
We want to determine, what do agencies do?
Regulate Private Conduct
I. Generally
a. Agencies involve three parties – private persons, regulated entities, and government agencies.
b. Agency
i. Departments – highest status as agency. (Department of Commerce, Education, etc). Each will have a host of sub-agencies. THERE ARE TWO TYPES OF AGENCIES:
ii. Independent – freestanding agencies that are not a part of a department.
1. Not part of the executive branch
2. Not subject to Presidential firing
3. Congress decides who is an Independent Angency
iii. Executive – Answer to the President.
Reasons that agencies are formed:
1. measurements like fuel, food, licensing
2. Administrative entitlements like social security
3. Everything else – issues grants, gives laons, predict weather.
Generally:
1. Congress tells an Agency it can make an agency and has the
power to make rules. However, some agencies don’t have
power to make rules .
2. So, all agencies are created legislatively by Congress.
3. Whatever an agency can do, it must be found the substantive
statute.
HOW AGENCIES OPERATE
1. Regulate private conduct – Regulatory agencies – primarily engage in regulate private conduct. Justifications
a. Country is a private market system subject to imperfections that the government can rectify.
b. Operation of unregulated market may lead to result that the vast majority of citizens disagree with.
c. Spillover costs – activity of individual or company harms other person or the environment – someone else must pay to fix the harm.
2. Administer Entitlement Programs: Examples:
a. Social security, medicare, etc.
3. “other”
a. IRS, INS,
c. Types of Agency action – brief overview
i. Rule making – legislative action. Same effect as if a law had been passed by Congress.
1. Publish regulations in Federal Register
2. Authority to act limited to powers specified in mandate by Congress.
ii. Adjudication – judicial function – think of the courts. Applies an existing rule to a set of facts to determine what outcome is required by the rule or statute.
1. Same force of law as if it had been decided by a court.
iii. Investigation – executive branch, law enforcement. Determine whether someone may be in violation of an agency rule or mandate.
1. Subpoena power – most common tool.
2. Filing reports with the agency.
3. Inspections – think OSHA
d. The APA – Administrative Procedure Act
II. Rule Making
Rules begin in may ways.
The statute itself may require rules
SUBSTANTIVE – WHETHER IT AFFECTS THE PARTIES INVOLVED
a. Rulemaking Initiation
i. Sources
1. Legislative mandate.
a. Specific regulations required
b. Protect safety, adopt rules for society.
2. Staff recommendations
a. Identify problems
b. Enforcement
c. Formal system of priority setting.
3. Political Pressure
a. Avoid critical legislation investi
ion, procedure, or practice
2. interpretive rules
3. general statements of policy
4. other rules for which notice and public procedure are impracticable, unnecessary, or contrary to public interest.
iii. Substantive v. Procedural rules – AMERICAN HOSPITAL ASSOCIATION v. Bowen – example of procedural rule so no compliance.
1. Substantive – whether it affects the parties involved
a. Subject to notice and comment
b. “Legislative Rule”
c. Act gives agency the power to make rules
d. Creates legal rights/duties on someone
2. Interpretive rules §553(b)(3)(a)
a. Not subject to notice requirement
b. Not based on something the act gives to prescribe
c. A classification of the existing rule
3. Good cause §553(b)(3)(b). Mostly commonly used.
a. Notice does not apply when the agency for good cause finds notice impracticable, unnecessary, or contrary to public interest.
i. Notice would defeat the agency’s regulatory objective
ii. Immediate action is necessary to reduce or avoid health hazards or imminent harm
iii. Inaction will lead to serious dislocation in government programs or marketplace.
