978-0134004006 Chapter 43 Lecture Note

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351

“Good government is an empire of laws.”

John Adams

I. Teacher to Teacher Dialogue

witness.

Having this sort of work experience brought a personal dimension to the classroom that stirs

mixed emotions. As with any long-term job experience, the memories tend to be a mix of the

good, the bad, and the ugly. From the students’ perspective, it gave him a chance to bring in

another side to the presentation—the perspective of a government employee with all the

bureaucracy can readily appreciate the frustrations of trying to get through the maze with sanity

intact. Our government’s burgeoning growth of administrative agencies at every level is indeed

cause for concern for its constituents. According to statistics published by the Department of

Labor, the federal government alone has over 3.5 million civilian employees and there were

been put in place so as to protect the rights of both the citizenry and the government.

The basic function undertaken by these administrative agencies is to carry out the ministerial

functions necessary to the operation of the government. These functions are first authorized by

what are called organic statutes, which create the agency, and enabling statutes, which delegate

scope of administrative agency activities.

ADMINISTRATIVE LAW AND

REGULATORY AGENCIES

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policy makers. The next step is to see if the power in question was in fact truly delegated, and if

so, is it being properly exercised by the agency?

The mechanisms for control of agency powers are relatively sparse given the scope of agency

activity. The key provisions for control of agency powers are found in the executive branch chain

specialization in many ways in order for the functions of government to be truly effective. Yet

one can’t help but wonder if there might be a better way.

II. Chapter Objectives

1. Describe the types of government regulations of business.

2. Define administrative law.

3. List and explain the functions of administrative agencies.

4. Describe the provisions of the Administrative Procedure Act.

5. Explain the procedure for judicial review of administrative agency decisions.

III. Key Question Checklist

 What is the source for the government regulation: executive, legislative, or judicial?

 How was that source of authority given its authority to act?

 If there is a conflict between a person and an administrative agency, what control can be

exerted over the agency?

IV. Text Materials

Administrative Law

Administrative law is law enacted by governments that regulate industries and businesses and

professionals. Administrative laws are often referred to as regulatory statutes. Administrative

General Government Regulation – General government regulation consists of laws that

regulate businesses and industries collectively.

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Specific Government Regulation – Specific government regulation consists of laws that

regulate specific industries.

Cabinet-Level Departments

Answer to the president and the president appoints its heads.

Landmark Law: U.S. Department of Homeland Security

This Act placed 22 existing federal agencies under a single umbrella of the Cabinet-level

Federal Administrative Agencies

Federal administrative agencies are created by either Congress or the executive branch, and have

broad regulatory powers.

State and Local Administrative Agencies

State administrative agencies have a profound effect on business. State administrative agencies

are empowered to enforce state statutes. They have the power to adopt rules and regulations to

Administrative Procedure

Administrative law consists of both substantive and procedural laws.

Landmark Law: Administrative Procedure Act

procedures for rule making.

Administrative Law Judge – Administrative proceedings employ an employee of the agency, an

Powers of Administrative Agencies

been declared unconstitutional.

Rule Making – Statutes have given administrative agencies the power to issue substantive rules,

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licenses be acquired from administrative agencies.

Judicial Authority – Administrative agencies often have the power to adjudicate issues through

administrative procedures, provided the procedural Due Process Clause of the federal and state

governments is followed.

Administrative Searches – Administrative agencies are also empowered to conduct searches,

subject to the Fourth Amendment.

Case 43.1 Search of Business Premises: New York v. Burger

Amendment.

Issue: Does the warrantless search of an automobile junkyard pursuant to a state statute that

authorized such search constitute an unreasonable search and seizure in violation of the Fourth

Amendment?

operated by Burger was in a closely regulated industry.

This warrantless inspection will be deemed reasonable only if three criteria are met. They are

met in this case. First, the government does have the required substantial interest in regulating the

junkyard industry; the thefts of motor vehicles have increased in New York and this industry is

informing the owners and operators of these businesses of the inspections, the nature, the

regularity of them, and what to do to comply with the statutory requirements, the regulation

provides the constitutionally required adequate substitute for a warrant. The warrantless search

therefore “clearly” falls within the well-established exception to the warrant requirement.

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Judicial Review of Administrative Agency Actions

Both federal statutes and the APA allow for judicial review of final federal administrative actions.

Appeals are filed by the petitioner to an appropriate federal court. Similar procedures are

followed to appeal state administrative actions.

government.

Individual Rights and Disclosure of Agency Actions

several statutes promoting disclosure.

Freedom of Information Act – The FOIA gives the public access to most documents by

requiring agencies to publish rules, regulations, and interpretations in the Federal Register. It also

establishes administrative costs and response times for requests for information, as well as clearly

Government in the Sunshine Act – This act opened most federal administrative agency

meetings to the public, and established the rules by which some meetings may be kept closed,

subject to judicial review.

actions.

Privacy Act – The Privacy Act establishes what information may be collected by a federal

administrative agency about an individual.

V. Key Terms and Concepts

state governments establish.

 Administrative law—Law that governments enact to regulate industries, businesses, and

professionals.

 Administrative law judge (ALJ)—A judge, presiding over administrative proceedings, who

decides questions of law and fact concerning the case.

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administrative search.

 Administrative subpoena—An order that directs the subject of the subpoena to disclose the

requested information.

 Cabinet-level federal departments—Federal agencies that advise the president and are

responsible for enforcing specific administrative statutes enacted by Congress.

powers that are delegated to it.

 Equal Access to Justice Act—An act that was enacted to protect persons from harassment by

federal administrative agencies.

 Executive power—Powers that administrative agencies are granted, such as the investigation

and prosecution of possible violations of statutes, administrative rules, and administrative

orders.

legislative branch of government.

 Federal Register—The Freedom of Information Act requires federal administrative agencies

to publish agency procedures, rules, regulations, interpretations, and other such information

in the Federal Register.

 Formal rulemaking—The agency must conduct a trial-like hearing at which the parties may

 Government in the Sunshine Act—An act that was enacted to open certain federal

administrative agency meetings to the public.

 Homeland Security Act—Created the federal cabinet-level U.S. Department of Homeland

Security (DHS).

language.

 Judicial authority—Authority of an administrative agency to adjudicate cases in an

administrative proceeding.

 Judicial review of administrative agency actions—Where an enabling statute does not provide

certain types of commerce or professions.

 Local administrative agencies—Agencies created by cities, municipalities, and counties to

administer local regulatory law.

 Order—Decision issued by an administrative law judge.

 Petitioner—The party appealing the decision of an administrative agency.

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agency purpose.

 Procedural administrative law—Procedural administrative law establishes the procedures that

must be followed by an administrative agency while enforcing substantive laws.

 Procedural due process—Due process that requires the respondent to be given (1) proper and

timely notice of the allegations or charges against him or her and (2) an opportunity to

present evidence on the matter.

are authorized to enforce.

 Rulemaking—The administrative process under which an agency issues and ratifies a new

rule. Rulemaking involves a public comment period.

 Specific government regulation—Laws that regulate a specific industry or type of business.

 State administrative agencies—Administrative agencies that states create to enforce and

interpret state law.

legislatures.

 Substantive rule—Government regulation that has the force of law and must be adhered to by

covered persons and businesses.

 Unreasonable search and seizure—Any search and seizure by the government that violates

the Fourth Amendment.