Administrative Law

What are administrative agencies also known as?

The “Fourth” branch of government.

What are executive agencies?

Agencies where a single director is appointed by the President and can be removed at any time; includes cabinet departments.

What are independent regulatory agencies?

Agencies outside federal executive departments, usually run by a board whose members serve fixed terms and cannot be removed unless there is just cause.

Why are administrative agencies called the fourth branch of government?

They exercise powers divided among the three branches of government.

What are the three powers administrative agencies exercise?

Rulemaking (legislative), enforcement (executive), and adjudication (judicial).

Can administrative agencies make rules that are legally binding?

Yes, they can make rules that are legally binding.

What is included in the Administrative Procedure Act, also known as Issue 1: Is there a valid regulation?

Notice of Proposed Rule, Comment Period, Final Rule.

What is included in the Administrative Law Analysis Approach?

Introduction: Creation and Purposes, Issue 1: Is there a valid regulation?, Issue 2: Is the enforcement/investigation of the regulation legal?, Issue 3: Is the adjudication of the regulation proper?

What is the point of Issue 1: Is there a valid regulation?

To determine whether the proper rulemaking procedures were followed.

What is the point of Issue 2: Is the enforcement/investigation of the regulation legal?

To examine the limitations on investigations.

What is the purpose of Issue 3: Is the adjudication of the regulation proper?

Adjudication within the agency and appeal to courts.

What is the Delegation Doctrine?

Congress, through the Delegation Doctrine, creates administrative agencies through enabling legislation.

When Congress enables legislation, what do they specify?

The name, purposes, functions, and powers of the agency being created; an agency’s enabling statute defines its legal authority.

What happens during notice of proposed rulemaking?

Notice of the proposed rule, including certain information, must be published in the Federal Register.

What happens during the comment period?

The agency must allow ample time for persons to comment on the proposed rule (usually 60–90 days or longer) and must respond to comments that directly affect the rule.

What happens during the final rule?

The final rule is published in the Federal Register, must contain a statement describing the reasoning behind the rule, and becomes legally binding.

What are informal agency actions?

Informal policymaking methods for interpretive rules and guidance (declaring policy); interpretive rules are exempt from APA procedures because they don’t establish legal rights.

What does Issue 2: Is the enforcement/investigation of the regulation legal? include?

Agencies conduct investigations to monitor compliance through self-reporting, on-site inspections, subpoenas, and searches.

What is a subpoena?

A legal order that requires someone to appear in court or provide documents.

Are search warrants required in all industries?

Yes for most, except in emergencies or highly regulated industries (like firearms).

Which amendment covers search warrants?

The Fourth Amendment.

What is included in Issue 3: Is the adjudication of the regulation proper?

If an investigation reveals a violation, it may result in fines or penalties, negotiated settlements, or formal complaints; the violator may respond, and an adjudicatory hearing may be set.

What is an agency adjudicatory hearing?

A trial-like hearing before an Administrative Law Judge (ALJ).

What is required for an adjudicatory hearing?

Notice of the facts and alleged violation, legal authority for the hearing, and the time and place.

What role does the ALJ play?

The ALJ assumes the role of both judge and jury.

What is the initial order of the ALJ?

The ALJ’s initial order is the decision on the case.

Can either party appeal the ALJ’s initial order?

Yes, either party may appeal to the agency’s governing board or commission.

What does the Governing Board of Commissions do?

Reviews the ALJ’s order.

What happens if there is no appeal?

The initial order becomes final.

What is considered arbitrary and capricious?

Failed to provide a rational explanation for a decision, changed prior policy without justification, considered legally inappropriate factors, wholly failed to consider a relevant factor, or made a decision contrary to evidence.

What are legally inappropriate factors?

Factors the agency is not allowed to consider by law when making its decision.

What is the Ripeness Doctrine?

A court will not review an administrative agency’s decision until the case is “ripe” (the agency’s action is formalized and final).

What is the Exhaustion Doctrine?

A party must first exhaust all remedies in the administrative process before a court will review the decision.

What is judicial control?

Judicial review of agency actions.

What is included in judicial control?

The case must meet judicial requirements of jurisdiction and standing (the party must have standing to sue, and there must be an actual controversy); the court must have jurisdiction over the subject and defendant.

What is executive control?

The President has the power to appoint and remove federal officers and can veto enabling legislation.

What is legislative control?

Congress gives agencies power through enabling legislation and can take it away, abolish agencies, or cut off funding.

Why did Congress enact the Arbitrary and Capricious standard?

To allow for more judicial control over agencies.

What case considered how much deference to give to an agency’s judgment?

Chevron U.S.A. v. Natural Resources.

What did the Supreme Court consider in Chevron U.S.A. v. Natural Resources?

How much to trust an agency’s judgment.

What should courts defer to according to Chevron?

Courts should defer to an agency’s interpretation of law as well as fact.

When should courts defer to an agency’s interpretation of a law?

They should usually defer to an agency’s interpretation as long as it’s reasonable.

What did Chevron create for courts?

A new standard for reviewing agency interpretations of law.

What is the first question under the Chevron standard?

Did Congress directly address the issue in dispute in the statute? If so, the statutory language prevails.

What is a statute?

A law passed by Congress.

What do courts check when Congress wrote the law?

Whether Congress made the rule clear.

What is the second question under the Chevron standard if the statute is silent or ambiguous?

Is the agency’s interpretation reasonable?

When should a court uphold an agency’s interpretation under Chevron?

If the agency’s interpretation is reasonable, even if the court would have interpreted it differently.

What else should courts ask under Chevron?

Did the agency respond in a reasonable way?

What are the two types of subpoenas?

Ad testificandum (to testify) and duces tecum (to bring documents).

What does “capricious” mean?

Sudden and unpredictable changes in mood, behavior, or decisions — impulsive or inconsistent.

What does “arbitrary” mean?

Based on personal choice, whim, or random decision rather than on reason or rules.

What are administrative remedies?

Ways to fix or appeal a decision within an agency before taking it to court.

What does “arbitrary and capricious” mean?

A government agency made a decision that was unreasonable, random, or without proper evidence or logic.

What is a bureaucracy?

A large, complex organization that helps carry out or enforce the laws made by Congress or state legislatures.