Student Debate: End-of-Chapter Q: 6.8 Verizon (11) v. FCC (12)

V.

Powers and Functionsof Administrative Agencies

Size of Federal Bureaucracy Fortune, November 2016

279,000 full time workers (compared with 178,000 in 2000).

$63 Billion spent by federal government.

Red in chart = social regulation (customs, environment, agriculture, Health and Human Services

Black/Gray = economic (FDIC, Department of Commerce, Patent and Trademark..)

Homeland Security

Agency Creation and Powers

Under the U.S. Constitution, Congress may delegate the task of implementing its laws to government agencies.– Enabling legislation

Executive Departments and Important Subagencies

Administrative Process

Three functions of administrative process are:

Adjudication

Rulemaking Enforcement

Rulemaking

Notice of Proposed Rulemaking— Begins with the publication of the proposed regulation in the Federal Register.

Opportunity for Comment— After notice is published, time is allowed for private parties to comment on the proposed rule.

Publication of the Final Rule —After the agency reviews the comments, it drafts the final rule and publishes it.

IRS Guidance/Issuances• Internal Revenue Code• Tax Regulations (subject to)• Internal Revenue Bulletins• Revenue Rulings• Revenue Procedures• Private Letter Rulings• Technical Advice Memorandum• Notice• Announcement• Press Release

Not subject to notice of rulemaking

Subject to

Agencies Investigate

Inspections and Tests

Used to gather information and to correct or prevent

undesirable conditions.

Subpoenas

Orders that direct individuals to appear at

a hearing or to hand over specified documents.

Limits on administrative investigations include the following:• Legitimate purpose.• The information being sought must be relevant.• The demand for testimony or documents must be specified.• The burden of the demand is on the party from whom the information is

sought.

Agencies Adjudicate

Limitations on Agency Powers

Power of Agencies. Combining the functions normally divided among the three branches of government into an administrative agency concentrates considerable power in a single organization.

Controls on Agencies. As a result, several controls exist to place such power in check, including:– Judicial Controls– Executive Controls– Legislative Controls

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Review of Rule Making and Informal Discretionary Actions.– “Arbitrary and Capricious” standard.

Review of Factual Findings. Substantial evidence review standard. Limited to Power Granted by Congress (FCC Net Neutrality –

courts struck down earlier version as outside scope of authority -) Review of Statutory Interpretations. Give deference within the

agency’s area of expertise.

Judicial Review of Agency Actions

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Limited Review of Procedures. No Right to Probe the Mental Processes of the Agency: a court

may not inquire into the decision-making process, but the legislature may.

Timing of Review:– Exhaustion of Administrative Remedies– Ripeness - legal, not hypothetical questions

4/3/16 WSJ – Supreme Court Water Fight– MN peat-mining operation stopped by US Army Corps of Engineers –

land contains water of the US.– 120 miles away from nearest major navigable waterway, but wetland

drain into water ….– $150,000 to try to get permit and take years.

Judicial Review of Agency Actions

Public Accountability

Freedom of Information Act of 1966. Requires the government to disclose records to “any person” on request.

Government-in-the-Sunshine Act of 1976– “[E]very portion of every meeting of an agency” must be open to

“public observation.”– Procedures must be implemented to ensure that the public is

provided with adequate advance notice of the agency’s scheduled meeting and agenda.

Regulatory Flexibility Act of 1980– Concern over the effects of regulation on the efficiency of

business, particularly smaller ones, led Congress to pass the Regulatory Flexibility Act in 1980.

– The act requires a regulatory flexibility analysis whenever a new regulation will have a “significant impact upon a substantial number of small entities.”

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Only Delegated Powers: an administrative agency may do only what Congress or the state legislature has authorized it to do.

Obligation to Follow Own Rules: agencies are required to follow their own rules and regulations.

Explanation of Decisions: an agency must explain the basis for its decisions and must show that it has taken into account all relevant considerations as required by the statute.

Decision-Making Power of Agencies

State Administrative Agencies

States also have administrative agencies If state and federal conflict – federal wins.

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The Federal Register and the Code of Federal Regulations (CFR) provides notice of rules and changes.

Finding an Agency’s Rules and Procedures