Administrative Law

Chapter Four: Administrative Law

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Chapter Four: Administrative Law

U.S. Constitution Article I, Legislative Process

Article I Legislative Process

House of Representatives and Senate

President Signature Bill to Law

Administrative Agencies – Regulations

Enforcement

Summary

Chapter Four: Administrative Law

U.S. Constitution Article I, Legislative Process

Is it relevant that Congress is created before the office of the President and the Judiciary in the U.S. Constitution?

Why do you think it was created in Article I as opposed to II, or III?

Section I: House of Representatives, apportioned based on state population determined every year, 435 total. State shrinks, like Ohio, then it can loose representatives. Ohio lost two (2) representatives from 2000 to 2010. Elected by the people. Two year terms.

Why is the House before the Senate? What does franchise got to do with it?

Section II: Senate, two (2) per state, originally chosen by state legislatures, amended to elected by the people via the 17th amendment. Six year terms.

Bi-cameral body

Vice president is President of the Senate.

Originally, House created Bills to be approved by the President AND the Senate could participate in the creation of legislation. Now its customary for both the House and the Senate to participate in crafting legislation.

Chapter Four: Administrative Law

U.S. Constitution Article I, Legislative Process

Section I: House of Representatives, apportioned based on state population determined every 10 years, 435 total.

What state’s have more power in the House?

Does the Senate counterbalance that?

Chapter Four: Administrative Law

Biggest Power?

Section 7 …. “all Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

And Section 7: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”

What is the problem with this arrangement, in theory?

Pocket Veto, what is it? How is it different than a veto? Passive aggressive, maybe?

2/3 of House and Senate can over ride a Presidential Veto.

Once signed by the President, the Bill becomes Law.

Chapter Four: Administrative Law

Administrative Agency

Executive Agency – President “appoints” head, approved by Senate, Secretary of State for example, appointed by President and also 4th in line of succession to the President (15) (e.g. Department of Energy, or Department of Homeland Security (what divisions are in the DHS?))

Chapter Four: Administrative Law

Administrative Agency

Independent Agency – Run by commissions or boards who are appointed and have high turnover but the President cannot removed these committee members easily. Too numerous to list. (e.g. Federal Trade Commission, National Labor Relations Board)

Chapter Four: Administrative Law

Agencies governed by Administrative Procedure Act (APA) Pub.L. 79-404, 60 Stat. 237; 5 U.S.C. Sec. 500

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal law that allows for disclosure of information and documents controlled by the United States government. Exemptions? What are they?

Other laws: Federal Privacy Act, Government in Sunshine Act, Federal Register Act and Sunshine Act.

Why are these acts important?

What is inherently different about over sight over politicians as opposed to over sight over agencies?

Chapter Four: Administrative Law

Bill (Congress) to Law (Presidential Signature) to Regulations (Agencies).

Agencies are established through enabling acts. E.g. The Homeland Security Act (HSA) of 2002, Pub.L. 107-296, 116 Stat 2135 created the Department of Homeland Security. Subsection (a) “Establishment.- -There is established a Department of Homeland Security, as an executive department of the United States within the meaning of title 5, United States Code (which is the APA).

Agencies take Laws written by Congress and passed by the President and then make regulations. Process: Agency – Study Problem, Propose regulations, Public Comment Period (no less than 30 days), Regional Hearings, Modifications, Public Comment Period on Modifications, Accept/Decline, Court Challenges.

Chapter Four: Administrative Law

Examples of Regulations, ever seen these?

Furniture Labels (FTC): “UNDER PENALTY OF LAW, THIS TAG IS NOT TO BE REMOVED EXCEPT BY THE CONSUMER.”

Food Packaging (FDA): “TOTAL SERVINGS PER CONTAINER: 2”

OTC Drug Labels (FDA): “WARNINGS: Ask a Doctor Before Use”

Insider Trading (SEC): No person shall trade in a company’s stocks who has access to confidential or non-public information about the company who then takes advantage of this privileged access to the information (which is usually considered a breach of the individual’s fiduciary duty).

Enforcement

Preliminary Investigation: Cooperating witnesses, no subpoenas.

Formal Investigation: Order with broad investigative authority including subpoenas.

Investigative Techniques used in both informal and formal investigations:

Document requests and subsequent document review;

Examples include – Public documents, Commission filings, news articles, and web articles; and,

Other documents provided by persons and entities involved in the matter – Account statements, telephone records, corporate documents, and accountant work product.

Witness testimony;

Other persons or companies identified with relevant information, causing the staff to request additional documents and testimony (e.g. banks).

Formal review and analysis of evidence to determine if a violation of the securities law has occurred which leads to a staff recommendation.

Chapter Four: Administrative Law

Staff Recommendation: Administrative Court, cased are subject to appeal directly to U.S. Court of Appeals by either the agency or defendant.

Case: SEC v. Rajaratnam 662 F.3d 159 (2d Cir. 2010) Parallel and concurrent prosecution of a Criminal Case and litigation of a Civil Case of an insider trading.

Criminal Case in Federal Court

Civil Case in SEC Administrative Court

What is the big issue in this case?

Money? Privacy? How do the two coincide?