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Chapter 7

Chapter 7. Government Regulation: Anatomy and Enforcement of a Regulation . Functions of Administrative Agencies. Executive Law enforcement and administrative Adjudicative Hearings before administrative law judges Legislative Both informal and formal rule making Hybrid rule making.

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Chapter 7

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  1. Chapter 7 Government Regulation: Anatomy and Enforcement of a Regulation

  2. Functions of Administrative Agencies • Executive • Law enforcement and administrative • Adjudicative • Hearings before administrative law judges • Legislative • Both informal and formal rule making • Hybrid rule making

  3. The Making of a Federal Regulation: Steps 1, 2, and 3 • Step 1: Society perceives a problem • Step 2: Congress passes an enabling act • Step 3: An agency studies the problem

  4. The Making of a Federal Regulation: Step 4 • Step 4: The agency proposes a regulation • The Administrative Procedure Act allows this • Notice is given to the Federal Register • Not all regulations must be published • Notice is easier to find with the advent of the Internet

  5. The Making of a Federal Regulation: Step 5 • Step 5: Public comments • Time to comment • Form for comment • What agencies must do with comments • Why comment

  6. The Making of a Federal Regulation: Step 6 • Step 6: The agency promulgates, modifies, or withdraws the regulation • Promulgation – when the topic is noncontroversial and has no problems • Modification – when topic is controversial or agency does not fully understand problem • Withdrawal – when regulation has overwhelming criticism

  7. The Making of a Federal Regulation: Step 7 • Step 7: Challenges in court to the promulgated regulation occur when the regulation • Is in violation of the U.S. Constitution • Is arbitrary, capricious, an abuse of discretion • Is beyond the authority of the enabling act

  8. The Making of a Federal Regulation: Step 7 • An agency acts ultra vires when it • Makes regulations beyond the authority of the enabling act grants • Makes regulations where no enabling act exists at all

  9. The Making of a Federal Regulation: Step 8 • Step 8: An agency enforces valid regulation through investigation, prosecution, and administration by means of • Permits and licenses • Prosecuting

  10. The Making of a Federal Regulation: Step 8 • An agency enforces valid regulation by means of • Searches and investigations by police and FBI officers • The general rule • Practical tip • Administrative sanctions • Civil penalties

  11. The Making of a Federal Regulation: Step 9 • Step 9: Agencies hold adjudicatory hearings • The hearing (the agency is the prosecutor) • An administrative law judge (one who presides over proceedings) • The parties (introduce evidence, witnesses, and arguments to support their cases)

  12. The Making of a Federal Regulation: Step 10 • Step 10: Appeal of administrative law judge’s decision • Standing • Exhaustion • Exceptions to the exhaustion doctrine • Appeals to the courts • Appealable agency action • Proper court • Ripeness

  13. The Making of a Federal Regulation: Remedies • A reviewing court may declare agency action illegal if it has acted • Arbitrary, capricious or abused its discretion • Contrary to constitutional right, power, privilege, or immunity • Beyond its statutory authority • Without observing legal procedures • Without substantial evidence

  14. More Points About Rulemaking • No evidentiary hearing is necessary • Specific statutes may require a hearing for informal rule making • Reg-neg (regulation that is negotiated) is possible for future federal rule making

  15. Recap – Terms to Know • Functions of agencies: executive, adjudicative, legislative • Rule making: formal, informal, hybrid • Enabling act • Public comment • Arbitrary and capricious • Exhaustion • Reg-neg

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