Administrative Law

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Author:
apgiering
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158601
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Administrative Law
Updated:
2012-06-13 14:44:52
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  1. How do overnment agencies get their authority to regulate?
    Delegation by the legislature.
  2. Can a state legislature delegate to an agency the determination of whom to tax?
    No.
  3. What is the standard for a substantive due process challenge under administrative law?
    Standard is reasonableness, both on its face and in application.
  4. How do you determine if an agency is taking unauthorized action?
    Analyze the relevant statute.
  5. Do agencies have broad powers to gather information?
    Yes.
  6. Agency's power to subpoena
    • Must be reasonably relevant information
    • Needs to be specific, not too broad
    • Fifth Amendment applies only to individuals, not to corporations or unions
  7. Do the Fourth and Fifth Amendments limit agencies' power to require reports to be submitted?
    Reports are public and the Fourth and Fifth Amendments do not apply provided the information is customary business information
  8. Does the Fourth Amendment limit agencies' powers to conduct physical inspections of the premises?
    • Fourth Amendment applies, but standards are weaker
    • Does not need probable cause, only facts showing a likelihood that violation of a rule exists
    • Welfare home visists are OK without a warrant because a refusal of entry would not lead to criminal sanctions, only to a termination of benefits
    • Public areas of businesses can always be inspected without any kind of warrant
    • Non-public areas genreally require a warrant but the warrant can be broad-sweeping
    • Warrantless searches are OK if in a closely-regulated business
  9. Can agencies conduct welfare home visits without a warrant?
    Yes, because refusal of entry would not lead to criminal sanctions, only to a termination of benefits.
  10. What areas of businesses can always be inspected by agencies without any kind of warrant?
    Public areas.

    Non-public areas genreally require a warrant but the warrant can be broad-sweeping.
  11. What areas of business cannot be inspected without a warrant?
    Non-public areas genreally require a warrant but the warrant can be broad-sweeping.
  12. Are warrantess searches OK in a closely-regulated business?
    Yes.
  13. What are the exceptions to the public's right to retrieve information from agencies under the Freedom of Information Act?
    • National defense or foreign policy
    • Internal agency personnel matters and internal agency memos that would not be available for disclosure in any civil lawsuit
    • Trade secrets or commercial or financial information that is confidential
    • Records compiled for law enforcement purposes if the disclosures would hinder enforcement or be detrimental to individuals
    • Reports on financial institutions
  14. What rules can agencies make?
    • A statement of general applicability, not directed to a single individual or corporation
    • Statement having future effect
    • Designed to implement, interpret, or proscribe law, policy or procedure
    • Can be made in two ways -- rule-making; adjudication
  15. Can agencies make rules having retroactive effect?
    No, only future effect.
  16. What are the two ways in which agencies can make rules?
    Rule-making and adjudication.
  17. What are 6 requirements for a valid rule-making proceeding?
    • Notice of the proposed rule-making, with disclosure of critical documents
    • Public participation through either written comments or oral hearing
    • The agency must give a concise statement of the basis and purpose of the proposed rule, and this must respond to material comments
    • The rule must be published in the Federal Register
    • The rule must provide a 30-day grace period between the adoption of the rule and its effective date
    • The agency must give the right to petition to adopt or revise a rule
  18. When is there not adequate notice of a rule-making proceeding?
    • Agency fails to disclose critical information
    • There is a great variance between the proposed rule and the final rule
  19. What public involvement is required to satisfy due process requirements of rule-making?
    Public participation through either written comments or oral hearing.
  20. How long of a grace period must there be between the adoption of a rule and its effective date?
    30 days.
  21. What are the due process requirements for administrative adjudication?
    • There must be material adjudicative facts in dispute
    • The party must have some protectable liberty or property interest involved
    • No emergency or other special exception exists
  22. What is the balancing test used in determing what type of a hearing will satisfy due process in the context of administrative adjudication?
    Balance the degree of loss to the individual against the interest of the government.

    Loss of individual is low and the government's interest is high? A simple hearing may be enogh.

    Cost to the individual is high? The courts will likely require a full trial-type hearing.
  23. Do the rules of evidence apply in administrative proceedings?
    Not automatically.
  24. What evidence can agencies admit in adjudicative proceedings?
    Agencies have great discretion in what evidence to admit.
  25. Is there a constitutional right to appointed counsel in an administrtaive proceeding?
    No, even if the person is indigent.
  26. Is there a right to a jury trial in the administraitve context?
    No.
  27. Is there a general right to attorney's fees in the administrative context?
    No.
  28. Who reviews decisions of administrative agencies?
    Any court of competent jurisdiction.
  29. What are the four conditions for judicial review of an agency decision?
    • Exhaustion of all administrative remedies (many exceptions)
    • Ripeness
    • Appropriate for judicial review
    • Plaintiff must have standing
  30. What are the exceptions to the general rule that a party must exhaust all administrative remedies before seeking judicial review?
    • The unconstitutionality of the basic statute
    • A clear lack of jurisdiction of the administrative agency
    • The futility of proceeding further
    • Unreasonable delay
    • Unusual irreparable injury would result if the courts did not tak eup the appeal now
  31. When is an agency order ripe for judicial review?
    It is a final order and it must meet the case and controversy requirements.
  32. What situations are not appropriate for judicial review?
    • Statute precludes any judicial review
    • The agency action is committed to agency discretion by law (an agency declines to take an enforcement action; an agency allocates funds to various activities out of a lump sum appropriation)
  33. Can someone seek judicial review of an agency's decision not to take an enforcement action?
    No, this matter is not appropriate for judicial review (b/c the action is committed to agency discretion by law).
  34. Can someone seek judicial review of an agency's allocation of funds to various activites out of a lump sum appropriation?
    No, this matter is not appropriate for judicial review (b/c the action is committed to agency discretion by law).
  35. What is required for a plaintiff to have standing to seek judicial review of an administrative decision?
    • Plaintiff must allege injury in fact
    • Causation must be established
    • Plaintiff's injury must come within the zone of interests to be protected by the statute
  36. What os the scope of judicial review of administrative decisions?
    • Factual issue -- decision supported by substantial evidence
    • Legal issue -- reviewing court may substitute its judgment for that of the agency on any interpretation of law
    • Arbitry and capricious, or abuse of discretion -- applies only to situations where the agency action is not taken on the record in a hearing
  37. What is the scope of judicial review of factual issues in an administrative decision?
    Decision must be supported by substantial evidence.
  38. What is the scope of judicial review of legal issues in an administrative decision?
    Reviewing court may substitute its judgment for that of the agency on any interpretaiton of law.
  39. What is the scope of judicial review that applies where the agency action is not taken on the record in a hearing?
    Arbitration and capricious, or abuse of discretion.

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