Part 11- Regulation of Business, Chapter 47: Administrative Law, Doc 4

Key Points Summary: Administrative Law and Rulemaking Procedures 1. Types of Rulemaking: o Informal Rulemaking (Notice and Comment): The most common method. Agencies publish a Notice of Proposed Rulemaking in the Federal Register, which includes details like the nature of the proposed rule, legal authority, and time and place for hearings. After a comment period, the final rule is published. While this process is quick and efficient, it often provides limited opportunities for public participation. o Formal Rulemaking: Involves a public hearing where evidence can be presented, and cross-examinations are allowed. The agency must issue a detailed report on its findings. This process, while ensuring more public participation, can lead to delays and procedural burdens, often delaying regulations for years. o Hybrid Rulemaking: A blend of informal and formal procedures. It allows for hearings but limits cross-examination. This approach seeks to balance public access and efficiency. 2. Adjudicatory Powers of Agencies: Agencies have significant adjudicatory powers to determine if there has been a regulatory or statutory violation. The process typically involves a complaint filed by the agency, followed by a hearing where the respondent can present evidence and cross-examine witnesses. These hearings are presided over by an administrative law judge (ALJ), and the burden of proof is usually the civil preponderance of the evidence standard. ALJ decisions may be appealed to the agency’s governing body. 3. Presidential Control: The president can influence agency actions in several ways: o Appointments: The president appoints agency heads and can influence policy through these appointments. o Office of Management and Budget (OMB): The OMB reviews and can modify agencies' budgetary requests and rule proposals. o Executive Orders: The president can direct agencies to prepare costbenefit analyses or provide early warnings about potential rule changes. o Veto Power: The president can veto legislation impacting agencies. 4. Congressional Control: Congress has several ways to influence agencies: o Advice and Consent: The Senate confirms presidential appointments to agency positions. o Legislation: Congress can amend agencies' enabling legislation or pass new laws affecting agencies. o Appropriations: Congress controls funding for agencies, limiting or denying budgets for programs it opposes. Oversight: Congressional committees oversee agency actions and conduct hearings. o Casework: Individual members of Congress can influence agencies on behalf of constituents. 5. Judicial Review: Courts, under the Administrative Procedure Act (APA), provide judicial oversight over agency actions. Only reviewable actions can be challenged, and plaintiffs must demonstrate they are "aggrieved parties," meaning their interests were substantially affected by the agency action. Agencies' actions are presumed reviewable, but there are exceptions, such as if a statute precludes review or if the matter is committed to agency discretion. 6. Standing to Sue: To bring a case against an agency, the plaintiff must show they have standing, which means they must prove that they have been harmed by the agency's action in a way that falls within the scope of the relevant law. Courts have liberalized this requirement over time, now allowing for broader types of injuries (such as economic, environmental, or aesthetic harm) to satisfy the standing requirement. 7. Failure to Promulgate Rules: Agencies can choose not to exercise their rulemaking authority, but this decision may be subject to judicial review in certain cases. Courts may review an agency’s refusal to act if it is deemed unreasonable, as illustrated in Massachusetts v. EPA. o This summary covers the structure and key aspects of rulemaking, adjudication, and oversight of administrative agencies. It outlines the process by which rules are created, the legal powers agencies hold, and the mechanisms by which other branches of government exert influence over them.