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Reference Guide

Administrative Law - Reference Guides

4 pages666 viewsFall 2015

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Administrative Law
l e a r n r e f e r e n c e r e v i e w
• Rules determined by procedures required by
reviewing courts and as specified by
Administrative Procedure Act (APA)
• Agencies may be given legislative power to issue
rules that govern private action (with resulting
penalties for violations), executive power to
investigate potential violations of rules and statutes,
and judicial power to adjudicate particular disputes
for failure to comply with governing standards
• Dependent on legislature and executive for budgets
and operating authority
Formally, Congress may revoke or narrow powers
which allow legislature to grant powers to
administrative agencies
Report and wait procedure delays effective date
of agency’s proposed rule, and it provides Congress
with the time to decide whether overriding statute
should be passed
Sunset law sets time limit for existence of agency,
and legislature must opt to re-enact its statutory
• Congressional approval of agency funding requires
legislative authorization for appropriations, which
is contained in basic delegation of power to agency
(may be for a fixed period of time or permanent),
and imposition of funding controls in annual
appropriations process (agencies must submit
budget requests for review and approval)
Informally, Congress can investigate
implementation of statutory programs and expose
corrupt or ineffective administration
• Investigation may interfere with executive branch’s
interest in confidentiality of internal affairs
Doctrine of executive privilege provides agency
with limited right to withhold information
• Congress requires agencies to provide periodic
reports on activities
• Permanent Congressional organizations may
conduct studies of agency activities
• Legislators use casework to assist citizens by
checking quality of administration and assuring fair
President has the power to appoint federal officers
• Does not apply to minor civil servants chosen by
agencies or court-appointed independent counsel
to investigate potential wrongdoing by officials in
the Executive Branch
• May remove administrator from office, whether
independent or executive agency (that is, removal
for cause)
• Authority to modify bureaucracy’s organizational
• Power to control litigation affecting agencies
through Department of Justice
Congress cannot make agency appointments,
although it may set qualifications for office
• No power to remove agency officials (except by
• May withhold support and funding for programs
• Investigation must be authorized
by law and undertaken for
legitimate purposes
• Substantive delegation of agency’s
regulatory power and grant of
investigative authority may be too
broadly defined for the investigation
to be determined ultra vires
• Court may allow investigation to
proceed because injured party has
an opportunity to challenge range
of agency’s power in review of final
• Judicial attempts to adjust agency’s
boundaries should wait until issues
become clear
• Question may become moot where
agency decides to forego exercising
power over complainant
• Complainant may resist subpoena
where it can show that it is exempt
from regulation (and agency
investigations) or that investigation
was undertaken in bad faith
• Requested information must be
relevant to lawful investigation of
• 4th Amendment prohibits use of
search warrant without probable
• Investigative demand must be
sufficiently specific and not
unreasonably burdensome
• Court makes certain distinctions
between actual search and seizure
and figurative or constructive search
(that is, request to see company
records) (refer to Oklahoma Press)
• Agency can investigate corporate
records on suspicion that law is
being violated or for assurance that
law is not being violated
• Subpoena must adequately describe
the requested materials(that is,
nature and scope of inquiry)
• Subpoena’s reasonableness affected
by cost of compiling and copying
materials, disruption of business or
activities as a result of agency’s
demands, nature of agency’s
requests, and risk of competitive
harm if commercially valuable
information is released
• Requested information must not be
privileged; 5th Amendment
privilege offers protection against
Limitations on use of privilege
include threatened penalty; must be
criminal (not civil) in nature;
privilege allowed for natural
persons, not corporations or
associations; privilege applicable to
forced testimonial utterances, not
other communications; and
privilege may be overruled by grant
of immunity from prosecution
• Acquire information through direct
• Inspections are intended to prevent
and correct undesirable conditions
• Possibility that warrants were not
required for administrative searches
where license was required to
operate business (refer to See)
• Physical inspections may replace
formal hearings
• May not violate 4th Amendment
• Probable cause is not applied to
enforcement of health and sanitary
• Warrants are not required for
closely-regulated businesses (refer to
Colonnade-Biswell), where individual
consents to search, or evidence is in
plain view from public space
• Applies to meetings where
there are proposals to take
official actiononspecific issues
• Variety of conflicting interests
must be dealt with (such as
protection from abuse of
fundamental rights vs.
protectionofpersonal privacy)
• Public interest in disclosure of agency
Federal Advisory Committee Act (FACA)
regulates activities of advisory committees,
which are comprisedofprivate citizens that
provide agencies with recommendations
regarding specific issues; meetings must be
public (similar to Sunshine Act)
• Agency’s powers, which require private parties to disclose information, is based
upon legislative delegation of authority
• Most agencies require a court order which directs compliance with requests for
• Some statutes provide that where a party refuses to comply without just cause,
it is subject to fines or criminal penalties
Administrative Law
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