REGULATION GOVERNMENT AND ADMINISTRATIVE LAW
How many agencies are there?
I. Overview A labyrinth is identified as a structure or garden characterized by an extremely complex maze with tortuous dead ends and blind alleys. Anyone who has dealt with a large governmental bureaucracy can readily appreciate the frustrations of trying to get through that maze with sanity intact. Government's burgeoning growth of administrative agencies at every level is indeed cause for concern for its constituents. According to statistics published by the U.S. Congress, the federal government alone has over three million civilian employees. In spite of constant calls to reduce the size of government's role in the average person's affairs, that role has grown tremendously. The media headlines may be focused on the goings on in the capitol, but the real functions of government are carried out in the trenches by this "fourth branch of government" every day. This chapter outlines the basic ground rules about how the agencies are created, how they are authorized to act, and what controls have 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 certain powers to the agency to act for the executive, legislative, or judicial branches of government. It is interesting to note at the outset that the "clean functional lines" of executive, legislative, and judicial can and often do become blurred when examining the breadth and scope of administrative agency activities. Once the existence of the agency is settled upon and its scope of authority is established, it is then decided whether it is acting within that scope vis--vis the particular issue at hand. Remember the basic assumption here is that the executive branch, legislative branch, or judicial branch has chosen to designate and delegate a certain portion of its authority to act. This delegation is based on the presumption that the agency can be expected to have certain levels of expertise, scales of economy, and attention to detail that could not be readily expected of the 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 of command and in the overview powers vested in the judiciary. In addition, there have been a number of specific information access statutes, such as the Freedom of Information Act, Government in the Sunshine Act, and the Administrative Procedure Act to help persons dealing with these agencies to get through the labyrinth. Like it or not, what it all points to is that we live in an age of specialization. The days of dealing directly with your elected representative are simply long gone, if in fact, they ever were there in the first place. We need this specialization in many ways in order for the functions of government to be truly effective. II. Hypothetical Multi-Issue Essay Question
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Mr. Joe Logrie was the proud owner of a new litter of cocker spaniel puppies. The parents, T. Bear, and Margaux, are AKC Champion show dogs. They have also garnered additional accolades by being temperament tested and certified as tracking companion dogs for field trials. The puppies' names are: Enzo, Bordeaux, Harry, Felicity, Patience, Toulouse, Byron, Sonia and Tort. Joe decides that the expenses related to the breeding and raising of these dogs are much the same as caring for any dependent and goes down to the Backwater District Office of the Internal Revenue Service to get some advice from the IRS. Taxpayer Service Representative, Mr. Oliver Officious. Oliver told Joe he also raised cocker spaniels and felt that they made wonderful dependents. As dependents, Oliver saw no reason why they shouldn't be listed as such on Joe's 1040. Joe proceeded to file his tax return on April 15th and listed eleven dependents, all of them having long ears and names like Tort and Enzo. He even got social security numbers for them, hoping that they would eventually work for their keep. Alas, poor Joe was audited by the IRS on April 16th and was told he could not claim his dogs as dependents in spite of their long-eared needs to be fed by him. Joe points to Oliver's advice as his defense. What results?
III. Outline Administrative Law Administrative Agencies Administrative agencies that are part of the executive or legislative branch of government Can be federal or state. Administrative law can be substantive and procedural law that governs the operation of administrative agencies. The agencies must follow procedures set by the Administrative Procedure Act (APA). Administrative law judges preside over administrative proceedings and decide questions of law and fact. They issue orders. Delegation of Powers agency can only use powers delegated to it by the legislative, judicial, and executive branch. Legislative Powers of Administrative Agencies Substantive rule making Adopting rules that advance the purpose of the statutes that the agency is empowered to enforce Interpretive rule making Adopting rules the interpret statutory language Statements of policy Announcing proposed courses of action the agency plans to take in the future Licensing Granting licenses to applicants and suspending or revoking licenses
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RULES MAKING PROCEDURES Publish notice of proposed rules in Federal Register Opportunity to participate (hearings) Review all comments Final rule (notice to comment or informal)
Time, place and nature Of proceedings Legal authority Terms or substance
Trial-like hearing
Formal rule making sometimes required
Executive and Judicial Powers of Administrative Agencies Executive Administrative subpoena Administrative searches--fourth amendment must be followed Violation prosecution Judicial Adjudicating cases through an administrative proceeding Procedural due process and substantive due process must be present notice and opportunity to present evidence Presided over by Administrative Law Judges Judicial Review of Administrative Agency Actions Conditions for review Case must be ripe for review Petitioner must have exhausted all administrative remedies Standards for review Questions of law as before (Is action outside its delegated power?) Questions of fact Arbitrary, capricious abuse of process test Substantial evidence test Unwarranted by the facts test (or de novo standard of review) Federal Administrative Agency Disclosure Statutes Freedom of Information Act gives public access to documents in the possession of federal agencies with exemptions for documents presidentially classified for national security, statutorily prohibited, interfering with law enforcement, in private files or containing trade secrets/confidential information. Government in Sunshine Act opens certain federal administrative agency meetings to the public with exceptions for meetings where person is accused of a crime, concerning issuance of a subpoena and others. Equal Access to Justice Act protects persons from harassment by federal administrative agencies.
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Privacy Act federal agencies can maintain any information that is relevant for a legitimate agency purpose.
IV. Objective Questions: Terms: 1. Administrative agencies use _______________ _______________ _______________ interpret to the statutes that the agency is authorized to enforce. 2. An act that establishes certain administrative procedures that federal administrative agencies must follow in conducting their affairs is the _______________ _________________ _______________. 3. A doctrine that says when an administrative agency is created, it is delegated certain powers and the agency can only use those legislative, judicial, and executive powers that are delegated to it is the ________________ _______________. 4. _______________ _____ ________________ preside over administrative hearings. 5. Equal Access to Justice Act protects persons from _______________ by administrative agents.
True/False: 1. ____ 2. ____ 3. ____ Administrative agencies can only be created by the federal government. Most federal administrative agencies are part of the legislative branch of government. The statutes enacted by administrative agencies are the substantive law enforced by the agencies. Violators of administrative agency statutes may be subject to civil, but not criminal liability.
4. ____
5. ____
Neither public notice nor participation is required when an agency decides to issue an interpretive rule.
Multiple Choice: 1. Very Important Agency (VIA), an agency recently set up by the federal government, has some questions about how it would conduct its affairs. Where should VIA look for guidance? A. The Government in the Sunshine Act. B. The Administrative Procedure Act. C. The Equal Access to Justice Act. D. None of the above. VIA can conduct itself in any reasonable manner.
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2. Assume VIA is set up and running properly. Which of the following powers may it have if properly delegated? A. Executive powers. B. Legislative powers. C. Judicial powers. D. All of the above. 3. VIA decides there are several important issues that must be examined and developed into rules. Assume VIA can establish these rules by notice and comment rule making. Which of the following must VIA do? A. Publish a notice and invite and consider interested comment. B. Have the interested parties present evidence and conduct cross-examination. C. Both of the above. D. None of the above. 4. VIA decides it is necessary to search the business premises of one of its licensees, a company called On The Edge (OTE). Under what circumstances will a search be considered reasonable? A. A warrantless search is conducted in an emergency situation. B. OTE is in a business where warrantless searches are automatically considered valid. C. OTE voluntarily agrees to the search. D. All of the above. 5. VIA has been delegated power to adjudicate cases through an administrative proceeding. Nonconforming Niel has allegedly violated several agency rules. Which of the following is correct? A. Niel must receive notice of the charges against him. B. Niel must be allowed to present evidence on his own behalf. C. Both of the above. D. None of the above.
V. Answers to Objective Questions Terms: 1. Rules and regulations. Like it or not, ours is a highly regulated society and government agencies have been delegated as the agents of law enforcement in the broadest sense of the term. 2. Administrative Procedure Act. This Act was passed in 1946 and is intended to provide a basic set of guidelines by which federal administrative agencies must conduct their affairs. 3. Delegation doctrine. An agency cannot be imbued with more power than the original delatator had to give. If an agency exceeds the limits of its delegated powers, it is an unconstitutional act. 4. Administrative Law Judge. They decide question of law and fact. 5. Harassment. This is a federal act.
True/False: 1. False. Administrative agencies can be created by federal, state, or local governments. 2. False. Most federal administrative agencies are part of the executive branch of government. 3. True. The statutes enacted by administrative agencies are the substantive law, as opposed to the procedural law, enforced by the agencies. 4. False. Violators of administrative agency statutes may be subject to either civil or criminal liability depending on the violations.
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5. True. Generally, this is true, although many agencies will hold hearings in order to elicit the opinions of interested parties.
Multiple Choice: 1. B. The Administrative Procedure Act sets out certain administrative procedures that federal administrative agencies must follow in conducting their affairs. A is incorrect because the Government in the Sunshine Act was enacted to open certain federal administrative agency meetings to the public. C is incorrect because the Equal Access to Justice Act was enacted to protect persons from harassment by federal administrative agencies. 2. D. If properly delegated, an administrative agency can have executive, legislative, and judicial powers. 3. A. Notice and comment rule-making, or informal rule-making, involves publishing a general notice of the proposed rule making, giving interested people the opportunity to comment, and reviewing input. B is incorrect because a trial-like procedure is used in formal rule making. C is incorrect because B is incorrect. D is incorrect because A is correct. 4. D. Administrative agency searches are proper under all the circumstances of A, B and C. 5. C. VIA must both give Niel notice of the charges against him and allow him to present evidence on his own behalf. These requirements must be satisfied in order to afford Niel procedural due process.
VI. Answers to Essay Question This issue is being examined by an administrative agency within the executive branch of the federal government. The general power to tax is in the control of Congress, but the actual administration of tax laws is vested in the powers of the executive branch. Within that branch, the Treasury Department is the cabinet level agency delegated to oversee tax administration for the federal government. That agency has within it the Internal Revenue Service that is the designated administrative arm of the executive branch empowered with the duty to collect taxes. The basic legislation that allows the IRS to act as our country's tax collector is the Internal Revenue Code. It is obviously a very technical act, subject to constant revision and debate. Under that code, the IRS is allowed to issue numerous rules and regulations relating to both substantive and procedural aspects of the tax laws. The IRS must comply with the Administrative Procedures Act and all other statutes relating to providing adequate notice to the public of its proposed rules and the like. In addition, unless it is information specifically exempted, such as law enforcement information, it must also comply with the Freedom of Information Act and similar administrative statutes. Assuming these rules have been complied with, it is most likely that the IRS would take the position that its revenue rules do not allow dogs to be taken as personal dependents on the return, no matter how cute they are. What can poor Joe do? He was advised by an IRS agent to do what he did. Shouldn't he be able to rely on that advice? Unfortunately, he cannot use that reliance as a defense in this case. Here Oliver gave Joe bad advice, but that fact does not excuse Joe's duty to find out for himself what the Internal Revenue Code really said on the issue of who qualifies as a dependent. To make matters worse, Joe probably cannot hold Oliver liable for negligence because it would not be deemed to be an intentional tort by Oliver. The advice was given in the course of his employment as a government agent. Agency law and governmental immunity would protect Oliver from personal liability. Is it any wonder that so many people have an overriding sense of frustration when dealing with administrative agencies?
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