THE REGULATORY PROCESS Chapter 15The Rise of Administrative AgenciesCreating An Administrative AgencyAdministrative LawADMINISTRATIVE REGULATORY POWERSRulemaking Powers (Types of Rules)Rulemaking ProcedureEnforcing RulesDow Chemical v. US (within text)5th Amendment Self- Incrimination Concerns of BusinessesGeneral Principles of 4th Amendment Search & Seizure Guidelines of Administrative AgenciesEnforcement PowerAgency Hearings & the Right to Trial By JuryJudicial ReviewLujan v. Defenders of Wildlife “Legal Standing”Scope of Judicial ReviewCONTROLS ON AGENCY POWERSTHE REGULATORY PROCESSTHE REGULATORY PROCESS Chapter 15Chapter 15““The rise of the administration bodies probably The rise of the administration bodies probably has been the most significant legal trend of the last has been the most significant legal trend of the last century and perhaps more values today are century and perhaps more values today are affected by their decisions than by those of all the affected by their decisions than by those of all the courts . . . .They have become a veritable fourth courts . . . .They have become a veritable fourth branch of the government. . . .branch of the government. . . .”” Supreme Court in F.T.C. Supreme Court in F.T.C. v. Ruberoid Company (1952)v. Ruberoid Company (1952)The Rise of The Rise of Administrative AgenciesAdministrative AgenciesThe first federal agency was the Interstate Commerce The first federal agency was the Interstate Commerce Commission (ICC,1887)Commission (ICC,1887)In the early 1900s: the Federal Trade Commission (FTC), In the early 1900s: the Federal Trade Commission (FTC), and the Food and Drug Administration (FDA)and the Food and Drug Administration (FDA)1930s: Securities & Exchange Commission (SEC) and 1930s: Securities & Exchange Commission (SEC) and Federal Communications Commission (FCC)Federal Communications Commission (FCC)1960s & 1970s: Environmental Protection Agency (EPA) 1960s & 1970s: Environmental Protection Agency (EPA) and Equal Employment Opportunity Commission and Equal Employment Opportunity Commission (EEOC)(EEOC)The 1980s placed more emphasis on the important The 1980s placed more emphasis on the important functions of the Environmental Protection Agency (EPA) functions of the Environmental Protection Agency (EPA) and Occupational Safety & Health Administration and Occupational Safety & Health Administration (OSHA)(OSHA)Agencies: Tools for local, state & federal regulatory Agencies: Tools for local, state & federal regulatory functionsfunctionsCreating An Administrative AgencyCreating An Administrative AgencyCongress gives an agency Congress gives an agency power & authority through power & authority through legislative delegationlegislative delegationCongress delegates power to Congress delegates power to the agency to perform the the agency to perform the regulatory purposeregulatory purposeCongressional statute Congressional statute delegates powers to the agency delegates powers to the agency through an through an enabling statuteenabling statuteAgencies are created to have Agencies are created to have expertise and supervision over expertise and supervision over special problems about which special problems about which Congress is concernedCongress is concernedAdministrative LawAdministrative LawAdministrative law consists of legal rules that define Administrative law consists of legal rules that define authority & structure of an agencyauthority & structure of an agencySources includeSources include•Enabling statutes of administrative agenciesEnabling statutes of administrative agencies•Administrative Procedures Act (APA, 1946)Administrative Procedures Act (APA, 1946)•Rules issued by administrative agenciesRules issued by administrative agencies•Court decisionsCourt decisions–Review validity of agency actionsReview validity of agency actionsThe structure of administrative law created by APAThe structure of administrative law created by APAAn agency must abide by APA requirementsAn agency must abide by APA requirementsCongress may impose different requirements than the APACongress may impose different requirements than the APAADMINISTRATIVE ADMINISTRATIVE REGULATORY POWERSREGULATORY POWERSLegislative Legislative (or Rulemaking)(or Rulemaking)Investigative Investigative AdjudicatoryAdjudicatoryEnforcementEnforcementVirtually all powers of the Virtually all powers of the three branches of the three branches of the government are government are incorporated into an incorporated into an agencyagencySee Exhibit 15.2See Exhibit 15.2Rulemaking PowersRulemaking Powers(Types of Rules)(Types of Rules)Substantive or LegislativeSubstantive or Legislative•Same force as statutes of CongressSame force as statutes of Congress•Agency usually must give public notice of these types of Agency usually must give public notice of these types of rules and give parties opportunity for written commentrules and give parties opportunity for written commentInterpretativeInterpretative•Statements issued by an agency to provide guidance Statements issued by an agency to provide guidance regarding interpretation of a substantive rule or regarding interpretation of a substantive rule or Congressional statuteCongressional statute•These rules may be created without public noticeThese rules may be created without public noticeProceduralProcedural•Rules that outline the method of agency operationRules that outline the method of agency operation•Procedures used to deal with the public regarding Procedures used to deal with the public regarding enforcement, investigation & adjudicatory reviewenforcement, investigation & adjudicatory reviewRulemaking ProcedureRulemaking ProcedureProposed rule drafted by the agency staffProposed rule drafted by the agency staffInternal review of the ruleInternal review of the ruleRules approved by the head of the agency for public Rules approved by the head of the agency for public considerationconsiderationPublishing of the proposed rules in the Publishing of the proposed rules in the Federal RegisterFederal RegisterInterested parties may submit written comments to agencyInterested parties may submit written comments to agencyAfter public comment period (60-90 days), agency reviews After public comment period (60-90 days), agency reviews comments and finalizes the rulecomments and finalizes the ruleSome