Chapter 47 Administrative Agencies The administrative agency serves as a primary vehicle for the creation and enforcement of modern regulation As governmental bodies that are neither courts nor legislatures administrative agencies have the legal power to take actions affecting the rights of private individuals and organizations o Fourth branch of a government that officially consists of three branches legislative executive and judicial The past century s significant growth in federal regulation has been accompanied by a comparable growth in state and local regulation by agencies at those levels of government The legal consequences of a corporation s actions are nearly as important to its future success as the business consequences of its decisions Origins of Administrative Agencies o In the 19th century s latter decades the United States was in the midst of a dramatic transformation from an agrarian nation to a major industrial power Agency Creation o Enabling Legislation Administrative agencies are created when Congress passes enabling legislation specifying the name composition and powers of the agency The fundamental problem in administrative law is how to design a system of control over agency action that minimizes the potential for arbitrariness and harm yet preserves the power and flexibility that make administrative agencies uniquely valuable instruments of public policy o Administrative Agencies and the Constitution Because administrative agencies are governmental bodies administrative action is governmental action that is subject to the basic constitutional checks This fourth branch of government is bound by basic constitutional guarantees such as due process equal protection and freedom of speech just as the three traditional branches are Separation of Powers One basic constitutional principle is uniquely important when the creation of administrative agencies is at issue the principle of separation of powers Lawmaking power is given to the legislative branch law enforcing power to the executive branch and law interpreting power to the judicial branch The constitution seeks to ensure that governmental power remains accountable to the public will Administrative agencies which exercise powers resembling those of each of the three branches of government create obvious concerns about separation of powers Agency Types and Organization o Agency Types Executive Agencies Administrative agencies that reside within the Executive Office of the President or within the executive departments of the president s cabinet are called executive agencies Their administrative heads serve at the pleasure of the President meaning that they are appointed and removable at his will Independent Agencies The Interstate Commerce Commission was the first independent administrative agency created by Congress Independent agencies are usually headed by a board or a commission whose members are appointed by the president with the advice and consent of the Senate Usually appointed for fixed terms and are removable only for Enabling legislation often requires political balance in agency cause appointments Department of Homeland Security In 2002 Congress enacted legislation creating the cabinet level Department of Homeland Security Employs roughly 170 000 workers with the vast majority coming to that department by way of transfer from existing positions as federal government employees o Agency Organization An agency s organizational structure is largely a function of its regulatory mission Agency Powers and Procedures o Nature Types and Sources of Power Some agencies powers are largely ministerial concerned primarily with the routine performance of duties imposed by law The most important administrative agencies however have broad discretionary powers that necessitate the exercise of significant discretion and judgment when they are employed The major discretionary powers agencies can possess are investigative power rulemaking power and adjudicatory power The formal powers an agency possesses are those granted by its enabling legislation A federal agency s exercise of its rulemaking and adjudicatory powers is also constrained by the Adminstrative Procedure Act APA Enacted by Congress in 1946 in an attempt to standardize federal agency procedures and to respond to critics who said that administrative power was out of control The APA applies to all federal agencies although it will not displace stricter procedural requirements contained in a particular agency s enabling legislation The APA plays a major role in shaping the conditions under which courts will review agency actions and the standards courts will use when conduction such a review Each of the three traditional branches of government possesses substantial powers to mold and constrain the powers of the fourth branch An agency s formal powers also confer on its significant informal power Agency advice suggestions or guidelines which technically lack the legal force of formal agency regulations or rulings may nonetheless play a major role in shaping the behavior of regulated industries because they carry with them the implicit or explicit threat of formal agency action if they are ignored Investigative Power The two most important and intrusive investigative tools employed by administrative agencies are subpoenas and searches and seizures Subpoenas o Two basic types of subpoenas Subpoenas ad testificandum may be used by an agency to compel unwilling witnesses to appear and testify at agency hearings Subpoenas duces tecum may be used by an agency to compel the production of most types of documentary evidence such as accounting records and office memorandum o Agency investigations must be authorized by law and conducted for a legitimate purpose The agency s enabling legislation must have granted the agency the investigatory power it seeks to assert Prohibits bad faith investigations pursued for improper motives o The information sought must be relevant to that purpose An agency can investigate merely on the suspicion that the law is being violated or even just because it wants assurance that it is not A probably cause requirement would effectively negate agency enforcement power o Agency information demands must be sufficiently specific and not unreasonable burdensome Agency subpoenas must adequately describe the information the agency seeks The cost to the target of complying with the agency s demand must not be unreasonable disproportionate to the
View Full Document
Unlocking...