Admin_Law_Unknown1 - Short Administrative Law Outline...

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Short Administrative Law Outline Informal Rulemaking : The agency must publish notice of rulemaking in the Federal Register. This allows people to send in comments to the General Council’s office or for a lawyer to send a brief to the GC. The GC reads the comments and creates a rule based on all of the input. The rule is then published in the Federal Register. It takes about 30 days to implement. Formal Rulemaking : A legislative hearing is held on a rule after a notice is published in the Federal Register. People submit an application to testify at the hearing. It’s not an adversarial trial, but a legislative hearing. You present a brief or statement, offer comments, and get asked questions. The rule is then published in the Federal Register. SEPARATION OF POWERS & DISTRIBUTION OF ADMINISTRATIVE POWERS EXECUTIVE CONTROL OF ADMINISTRATIVE AGENCIES Appointment of Executive Officials The Appointments Clause provides that the pres, w/ the advice and consent of the Senate, appoints officers of the US, and Congress may specify that inferior officers are appointed by the pres alone, by the heads of departments, or by the courts of law. Principal Officers : High-level officials in the executive branch and heads of independent agencies. Cabinet members and commissioners of independent agencies are principal officers b/c there’s no one in the gov hierarchy between them and the pres. Inferior Officers : Lower-level executive officers who are under the supervision of other executive officials beneath the pres. o Morrison v. Olson : Court looks at scope and duration of the officer’s position and the removal power of whomever to remove the officer to determine if the officer is a principal officer or inferior officer. o Edmond v . US : Court moved away from Morrison factors and looked exclusively at whether the officer in question is supervised by someone to determine if he’s a principal or inferior officer. If he is supervised by someone, he’s an inferior officer. If not, he’s a principal officer. Removal of Executive Officials The pres has the right to remove executive officials, subject to restrictions Congress may place on the pres’ removal power. In the absence of statutory restrictions, the pres has the power to remove executive officials at will. 1
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Congress itself may not retain advice and consent power over removal of officials or participate in the removal of officials except through exercise of the impeachment power. o Myers v. US : The Senate may not retain a role in the removal of executive officials. However, dicta indicates that Congress may restrict the removal of inferior officers. o US v . Humphrey’s Executor : Congress may require a finding of cause before an official exercising quasi-legislative or quasi-judicial power may be removed. Humphrey, as a federal trade commissioner, exercised legislative rulemaking and adjudicatory powers that were appropriately shielded from excessive pres influence, while the postmaster in
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This note was uploaded on 03/03/2010 for the course LAW 28465 taught by Professor Carson during the Fall '09 term at University of Texas.

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Admin_Law_Unknown1 - Short Administrative Law Outline...

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