2.  Administrative law is created by administrative agencies which regulate many areas of our government, community, and businesses.  A significant cost of ‘doing business’ requires compliance with administrative and agency laws.  2

3.  Administrative Agencies Exist at All Levels of Government.  Agencies Provide Comprehensive Regulatory Scheme.  Many businesses have incentive to influence the regulatory environment. 3

4.  The study of administrative law requires an understanding of:  Enabling Legislation.   The Types of Agencies.   Agency Powers and the Constitution.  4

5.  Federal Trade Commission (FTC) granted power to:  1. To create “rules and regulations for the purpose of carrying out the Act.”  2. To conduct investigations of business practices.  5

6.  FTC granted power to (cont’d):  3. To obtain reports from interstate corporations concerning their business practices.  4. To investigate possible violations of federal antitrust statutes. 6

7.  FTC granted power to (cont’d):  5. To publish findings of its investigations.  6. To recommend new legislation.  7. To hold trial-like hearings to resolve disputes. 7

8.  There are two basic types of administrative agencies: Executive Agencies (e.g., EPA and cabinet level) and Independent Regulatory Agencies (e.g., Securities Exchange Commission, Internal Revenue Service). 8

9.  Agency Powers and the Constitution.  Legislative Rules: act as legally binding as laws passed by Congress. Agencies also pass interpretive rules.  The Delegation Doctrine.  Executive Controls: Presidential veto power.  9

10.  Agency Powers and the Constitution.  Judicial Controls.  Exhaustion Doctrine: party seeking court review must first exhaust all administrative remedies before filing suit.  Ripeness Doctrine: court will not review administrative decision until it is ‘ripe’ for review. 10

11.  In the absence of clear Congressional direction, all federal agencies must follow APA procedural requirements in notice, rulemaking, and adjudication.  11

12.  Arbitrary and Capricious Test:  The APA gives courts power to hold agencies’ actions “arbitrary and capricious” if they are not in compliance with constitutional due process.  CASE 6.1 FCC v. Fox Television Studios, Inc. (2009). Are the FCC’s indecency rules too ‘vague’? 12

13.  Rulemaking: formulation of new regulation. Notice and Comment Rulemaking involves three steps:  Notice of the Proposed Rulemaking.  Comment Period.  The Final Rule.  Informal Agency Action: exempt from APA, do not establish legal rights. 13

14.  The Holding of the Chevron Case.  Issue was whether courts should defer to an agency’s interpretation of the enabling legislation which gives it authority to act.  In Chevron, the EPA interpreted not only the facts, but the law.  14

15.  Chevron (cont’d).  The U.S. Supreme Court held that a federal agency could interpret law with a two prong test: (1) did Congress directly address the issue in a statute? And (2) if the statute is silent, was the agency’s interpretation of the law “reasonable”?  15

16.  When Courts Will Give Chevron Deference to Agency Interpretation.  When the meaning of a statute’s language is unclear, courts must follow agency interpretation if reasonable.  16

17.  When Courts Will Give Chevron Deference to Agency Interpretation.  CASE 6.2 Citizens Committee to Save our Canyons v. Krueger (2008). Why did the court uphold the agency’s decision? 17

18.  Investigation includes the powers to:  Conduct Inspections.  Issue Subpoenas.  Conduct Site Inspections (including warrantless inspections in certain limited situations such as firearms or liquor). 18

19.  Adjudication (like a trial before a judge).  Negotiated Settlements.  Formal Complaints.  Role of the Administrative Law Judge.  Hearing Procedures.  Agency Orders. 19

20.  A number of pieces of legislation make agencies more accountable through public scrutiny.  Freedom of Information Act.   Government in the Sunshine Act.   Regulatory Flexibility Act.   Small Business Regulatory Enforcement Fairness Act.  20

21.  Freedom of Information Act.  Requires federal government to disclose records on request, but denial can be challenged in court.  CASE 6.3 United Technologies Corp. v. U.S. Department of Defense (2010). Court ordered a rational connection between facts and choice to deny. 21

22.  Government in the Sunshine Act. Requires that “every portion of every meeting of an agency” be open to “public observation.”  Adequate notice of meetings must be given to the public.  Closed meetings are authorized in a limited number of instances. 22

23.  Regulatory Flexibility Act. Requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives. 23

24.  Small Business Regulatory Enforcement Fairness Act. Allows Congress to review new federal regulations for at least sixty-days before they can take effect. 24