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Law and the Administrative Process (with InfoTrac)

by: Scheb, John M.; Scheb, II, John M.

Law and the Administrative Process (with InfoTrac)

by: Scheb, John M.; Scheb, II, John M.

ISBN 13:
9780534177089
ISBN 10:
0534177085
Format: Hardcover
Copyright: 07/21/2004
Publisher: Wadsworth Publishing

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Summary

Examine federal and state law with LAW AND THE ADMINISTRATIVE PROCESS (WITH INFOTRAC). In addition to traditional administrative law topics, such as delegation of legislative authority to agencies, constitutional aspects, statutory framework, investigations, rulemaking, adjudication, and judicial review, the authors also present authoritative chapters on the evolution of the administrative state, political control of agencies, rights of public employees, governmental liability, and the future of administrative law. Excerpted judicial decisions following each chapter.

Preface

xxv

Administrative Law In American Government

(21)

Introduction

(1)

What Is Administrative Law?

(1)

Institutional Foundations of Administrative Law

(6)

The Executive Branches

(1)

The Legislative Branches

(1)

The Judicial Branches

(3)

State Court Systems

(1)

Bureaucracy, Law, and Politics

(5)

The Ideal-Type Bureaucracy

(2)

Bureaucracy in the Real World

(1)

Political Perspectives on Bureaucracy

(1)

Academic Perspectives on the Administrative State

(1)

Administrative Law: A Roadmap

(3)

Constitutional Foundations

(1)

Statutory Framework

(1)

Investigation and Enforcement

(1)

Rulemaking and Adjudication

(1)

Political Control of the Bureaucracy

(1)

Judicial Review of Agency Actions

(1)

The Rights of Public Employees

(1)

Liability of Public Agencies

(1)

The Goals of Administrative Law

(1)

The Impact on Human Lives

(2)

Conclusion

(1)

Key Terms

(1)

Questions for Thought and Discussion

(1)

Endnotes

(1)

The Evolution of the Administrative State

(40)

Introduction

(1)

Creation of the Federal Bureaucracy

(4)

The State Department and the Conduct of Foreign Affairs

(1)

Protection of Patents and Copyrights

(1)

The Treasury Department

(1)

The Customs Service

(1)

The War Department

(1)

The Office of Attorney General

(1)

The Post Office

(1)

The Department of the Interior

(1)

State and Local Government in the Early Years of the Republic

(1)

Emergence of the Administrative State

(2)

Creation of the Civil Service

(1)

The Advent of Regulation

(1)

The Era of Progressive Reform

(2)

The Pure Food and Drug Act

(1)

Regulating Commerce and Labor

(1)

The Federal Reserve System

(1)

The Federal Income Tax

(1)

The Federal Trade Commission

(1)

The Great Depression and the New Deal

(4)

The NRA: Centerpiece of the New Deal

(1)

Regulation of Agriculture

(1)

Regulating and Insuring the Banking Industry

(1)

The Tennessee Valley Authority

(1)

Regulation of Broadcasting

(1)

Regulating the Stock Market

(1)

Regulation of Utlities

(1)

Regulation of Labor-Management Relations

(1)

New Deal Measures to Stimulate Home Ownership and Provide Public Housing

(1)

Social Security

(1)

The Rise of Administrative Adjudication

(1)

World War II and the Cold War Era

(4)

Providing for Veterans

(1)

Adoption of the Administrative Procedure Act

(1)

Creation of the Nuclear Energy Industry

(1)

The National Security State

(1)

Expansion of Social Security

(1)

Regulating Aviation

(1)

The New Frontier, the Great Society, and the Welfare State

(2)

Landmark Civil Rights Legislation

(1)

The Voting Rights Act

(1)

Expansion of the Welfare State

(1)

The Freedom of Information Act (1996)

(1)

The Golden Age of Regulation

(2)

Environmental Protection

(1)

Occupational Safety and Health

(1)

The Consumer Product Safety Commission

(1)

Regulating Campaign Finance

(1)

Energy Policy

(1)

Welfare and Education

(1)

The Reagan Revolution

(1)

``Reaganomics''

(1)

Deregulation

(1)

Cabinet Status for the Veterans Administration

(1)

Reinventing Government? The Clinton Years

(3)

NAFTA and the WTO

(1)

Deregulation and Reregulation of Agriculture

(1)

Abolition of the Interstate Commerce Commission

(1)

Welfare Reform

(1)

The National Performance Review

(1)

Environmental Regulation during the Clinton Administration

(1)

George W. Bush and the War on Terrorism

(1)

Homeland Security

(1)

The Federal Bureaucracy Today

(5)

The Executive Office of the President

(1)

The Cabinet-Level Departments

(3)

The Independent Agencies

(1)

Contemporary State and Local Administration

(5)

The Role of State Governments

(1)

State Administrative Agencies

(2)

County Government

(1)

City Government

(1)

Consolidation of County and City Governments--The Metro Concept

(1)

Functions Common to Local Governments

(1)

Conclusion

(1)

Key Terms

(1)

Questions for Thought and Discussion

(1)

Endnotes

(2)

Constitutional Sources of Bureaucratic Power and Restraint

(54)

Introduction

(1)

Constitutional Foundations of the Federal Bureaucracy

(14)

The Ideal of Limited Government

(3)

Federalism

(3)

Delegation of Legislative Power

(4)

Separation of Powers

(3)

The State and Local Context

(4)

State Constitutions

(1)

Judicial Interpretation of State Constitutions

(1)

The State Bureaucracy

(1)

Separation of Powers at the State Level

(1)

The Delegation of State Legislative Power to State and Local Agencies

(2)

Constitutional Rights as Limitations on Bureaucratic Power

(12)

Due Process of Law

(3)

Equal Protection of the Laws

(1)

The First Amendment

(3)

The Fourth Amendment

(1)

The Right to Privacy

(1)

The Fifth Amendment

(2)

Conclusion

(1)

Key Terms

(1)

Questions for Thought and Discussion

(1)

Edited Cases

Lorillard Tobacco Company v. Reilly

(5)

Whitman v. American Trucking Associations

(3)

State ex rel. Taylor v. Johnson

102

(7)

Nollan v. California Coastal Commission

109

(3)

Endnotes

112

(4)

The Statutory Framework of the Administrative Process

116

(48)

Introduction

117

(1)

The Statutory Authority of Agencies

117

(1)

Interpretation of Agency Powers

118

(2)

Agency Interpretation of Their Own Powers

118

(1)

Two Case Studies in Statutory Interpretation

119

(1)

The Administrative Procedure Act and Its State Counterparts

120

(4)

Rulemaking Distinguished from Adjudication

121

(1)

Formality versus Informality in Administrative Decisions

122

(1)

Informal Rulemaking

122

(1)

Formal Rulemaking

123

(1)

Formal Adjudication

123

(1)

Informal Adjudication

124

(1)

Statutory Requirements Promoting Openness in Public Administration

124

(5)

The Freedom of Information Act

124

(3)

State Open Records Acts

127

(1)

Open Meetings Laws

128

(1)

Federal Advisory Committee Act

129

(1)

Statutory Protections for Individual Privacy

129

(4)

The Federal Privacy Act of 1974

129

(1)

State Laws Protecting Privacy

130

(1)

The Family Educational Privacy Act (Buckley Amendment)

130

(1)

Right to Financial Privacy Act

131

(1)

Privacy of Medical Records

131

(2)

The National Do-Not-Call Registry

133

(1)

Other Key Statutes Affecting the Administrative Process

133

(2)

The Paperwork Reduction Act

134

(1)

The Regulatory Flexibility Act

135

(1)

The Unfunded Mandates Reform Act

135

(1)

Conclusion

135

(1)

Key Terms

136

(1)

Questions for Thought and Discussion

136

(1)

Edited Cases

Bob Jones University v. United States

137

(3)

Food and Drug Administration v. Brown and Williamson Tobacco Co.

140

(4)

Department of Justice v. Reporters' Committee

144

(5)

FCC v. ITT World Communications, Inc.

149

(3)

Eco, Incorporated v. City of Elkhorn

152

(4)

Minnesota Medical Association v. Minnesota Department of Public Welfare

156

(6)

Endnotes

162

(2)

Investigation and Enforcement

164

(46)

Introduction

165

(1)

Compulsory Process

165

(3)

The Use of a ``John Doe'' Summons

166

(1)

Constraints on Administrative Subpoenas

166

(2)

Inspections, Searches, and Seizures

168

(3)

An Exception for Administrative Searches?

168

(1)

The Camara and See Decisions

168

(1)

Closely Regulated Industries

169

(1)

A Framework for Evaluating Warrantless Administrative Searches

170

(1)

State Court Rulings on Administrative Searches

170

(1)

What Constitutes a Search?

171

(1)

Audits and Examinations

171

(3)

Recordkeeping and Reporting Requirements

173

(1)

Deportation and Administrative Detention

174

(1)

Suspension and Revocation of Licences

175

(3)

Building and Environmental Permits

176

(1)

Drivers' Licenses

176

(1)

Occupational and Professional Licenses

176

(1)

Enforcement of Licensing Actions

177

(1)

Imposition of Administrative Fines

178

(1)

Cease and Desist Orders

179

(1)

Civil Suits to Enforce Regulations and Orders

180

(2)

Qui Tam Suits

182

(1)

Criminal Prosecutions

182

(1)

Liens, Levies, and Garnishments

183

(1)

Forfeitures

183

(1)

Conclusion

184

(1)

Key Terms

185

(1)

Questions for Thought and Discussion

185

(1)

Edited Cases

Camara v. Municipal Court

185

(6)

Colonnade Corporation v. United States

191

(2)

Marshall v. Barlow's, Inc.

193

(4)

Dow Chemical Company v. United States

197

(4)

Gilpin v. Montana Board of Nursing

201

(2)

Austin v. United States

203

(4)

Endnotes

207

(3)

Rulemaking

210

(45)

Introduction

211

(1)

The Basics of Rules and Rulemaking

212

(3)

Legal Parameters of Rulemaking

213

(1)

Rulemaking versus Adjudication

213

(1)

Initiation of Rulemaking

214

(1)

Types of Rulemaking

214

(1)

Exempt Rulemaking

215

(5)

General Statements of Policy

215

(1)

Interpretive Rules

216

(2)

Procedural Rules

218

(1)

The Good Cause Exemption

219

(1)

Informal and Formal Rulemaking

220

(3)

Informal ``Notice-and-Comment'' Rulemaking

220

(1)

Direct Final Rulemaking

221

(1)

Interim Rules

221

(1)

Formal Rulemaking

222

(1)

Hybrid Rulemaking

223

(2)

The Vermont Yankee Case

224

(1)

Negotiated Rulemaking

225

(1)

Electronic Rulemaking

225

(2)

Publication and Codification of Rules

227

(1)

The Code of Federal Regulations

227

(1)

The Rulemaking Record

227

(1)

Regulatory Flexibility Analysis

228

(1)

Waivers and Variances

229

(1)

Executive Oversight of Rulemaking

230

(1)

Key Executive Orders Affecting Rulemaking

230

(1)

Preclearance of Proposed Rules

231

(1)

Legislative Control of Rulemaking

231

(1)

The Legislative Veto

232

(1)

Ex Parte Contacts by Decision Makers

232

(1)

Rulemaking at the State Level

233

(9)

Model State Administrative Procedure Act

234

(1)

Some Specific Provisions in State Administrative Procedure Acts

234

(2)

The Rulemaking Record

236

(1)

State Administrative Publications

236

(6)

Conclusion

242

(1)

Key Terms

243

(1)

Questions for Thought and Discussion

244

(1)

Edited Cases

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council

244

(2)

Detroit Base Coalition for the Human Rights of the Handicapped v. Department of Social Services

246

(3)

State v. Peters

249

(3)

Endnotes

252

(3)

Adjudication

255

(46)

Introduction

256

(1)

Applicability of Administrative Procedure Acts

257

(2)

State Administrative Procedure Acts

258

(1)

Local Administrative Procedure Ordinances

259

(1)

Formal and Informal Adjudications

259

(1)

Agency Adjudication and Due Process of Law

260

(8)

Interests Triggering Procedural Due Process

260

(1)

What Process Is Due?

261

(3)

A New Pragmatic Approach to Procedural Due Process

264

(2)

Due Process in the 1990s and 2000s

266

(2)

Alternative Forms of Dispute Resolution

268

(1)

The Right to Counsel

269

(1)

Prehearing Processes in Formal Adjudication

270

(4)

The Administrative Law Judge

270

(1)

The Notice Requirement

271

(1)

Motion Practice

271

(3)

Prehearing Conferences

274

(1)

Formal Adjudicatory Hearings

274

(4)

Opening Statements

276

(1)

Official Notice

276

(1)

The Evidentiary Phase

276

(2)

Closing Arguments

278

(1)

Decisional Processes in Formal Adjudication

278

(1)

The Requirement for a Reasoned Decision

278

(1)

Initial and Recommended Decisions

278

(1)

Postdecisional Review

278

(1)

Ex Parte Contacts

279

(1)

The Codification of Restrictions on Ex Parte Contacts

279

(1)

Remedies Where an Improper Ex Parte Contact Occurs

280

(1)

Conclusion

280

(1)

Key Terms

281

(1)

Questions for Thought and Discussion

282

(1)

Edited Cases

United States v. Florida East Coast Ry. Co.

282

(4)

Goldberg v. Kelly

286

(3)

Perry v. Sinderman

289

(2)

Mathews v. Eldridge

291

(4)

Cleveland Board of Education v. Loudermill

295

(3)

Van Morfit v. University of South Florida

298

(1)

Endnotes

299

(2)

Political Control of Agencies

301

(39)

Introduction

302

(1)

Legislative Oversight

303

(11)

The Interplay of Congress, Agencies, and Interest Groups

303

(2)

Legislative Investigations

305

(1)

The General Accounting Office

306

(2)

The Legislative Veto

308

(2)

Legislative Oversight at the State Level

310

(1)

Prohibition from Exercising a Power Delegated to Another Branch of Government

311

(1)

The Budgetary Process

312

(1)

Informal Legislative Oversight

312

(2)

Executive Control of the Bureaucracy

314

(9)

Constitutional Powers Provide for Direct Oversight

314

(2)

Executive Orders

316

(2)

The Power to Appoint Officers

318

(1)

The Power to Remove Officers

319

(1)

The Executive Role in the Budgetary Process

320

(1)

Executive Control of Agency Litigation

321

(2)

Direct Control of the Bureaucracy by the Electorate

323

(1)

Conclusion

323

(1)

Key Terms

324

(1)

Questions for Thought and Discussion

324

(1)

Edited Cases

Immigration and Naturalization Service v. Chadha

325

(5)

Wiener v. United States

330

(3)

Bowsher v. Synar

333

(5)

Endnotes

338

(2)

Judicial Review of Agency Actions

340

(45)

Introduction

341

(1)

Reviewability of Administrative Actions

341

(1)

Relevance of the Administrative Procedure Act

341

(1)

Selecting the Proper Judicial Forum

342

(1)

Statutory Preclusion of Judicial Review

343

(2)

Matters ``Committed to Agency Discretion''

343

(1)

Judicial Review of Agency Refusals to Take Action

344

(1)

Justiciability

345

(6)

The Doctrine of Standing

345

(3)

The Ripeness Requirement

348

(1)

Exhaustion of Administrative Remedies

349

(1)

The Mootness Doctrine

350

(1)

Review on the Merits

351

(2)

The Mechanics of Judicial Review

352

(1)

Availability of Relief Pending Review

353

(1)

Deference to Agency Determinations

353

(8)

Deference to Findings of Facts

354

(1)

Statutory Interpretation

354

(1)

The Chevron Decision: Deference to Agency Interpretations of Law

354

(2)

The Limits of Judicial Deference

356

(2)

Judicial Deference in Cases Raising Constitutional Concerns

358

(1)

State Court Deference to Agency Construction of Statutes

359

(1)

Judicial Deference to Rules and Rulemaking Procedures

359

(1)

Legal Rules Affecting Administrative Review

360

(1)

Conclusion

361

(1)

Key Terms

362

(1)

Questions for Thought and Discussion

362

(1)

Edited Cases

Citizens to Preserve Overtone Park v. Volpe

363

(5)

Heckler v. Chaney

368

(6)

Lujan v. National Wildlife Federation

374

(5)

Chevron U.S.A. v. Natural Resources Defense Council

379

(3)

Freeman Hall, D/B/A Freeman's College City Lounge v. Alabama Alcoholic Beverage Control Board

382

(1)

Endnotes

383

(2)

The Rights of Public Employees

385

(52)

Introduction

386

(1)

The Civil Service

386

(6)

The Pendleton Act

386

(1)

The Lloyd-LaFollette Act

387

(1)

The Hatch Act

388

(1)

The Civil Service Reform Act of 1978

389

(1)

Protection of Whistleblowers

389

(2)

State Civil Service Laws

391

(1)

Due Process Protections for Public Employees

392

(1)

Is There a Property Interest in Public Employment?

392

(1)

What Process Is Due?

392

(1)

Employees' Unions, Collective Bargaining, and the Right to Strike

393

(3)

Unionization of State and Local Employees

394

(1)

Do Employees Have a Right to Strike against the Government?

395

(1)

Rights of Union Members

395

(1)

Right to Work Laws

396

(1)

Negotiated Grievance Procedures

396

(1)

Civil Rights Protections for Public Employees

396

(8)

Federal Laws Prohibiting Employment Discrimination

397

(1)

Equal Employment Opportunity Commission

398

(1)

State and Local Laws Prohibiting Employment Discrimination

398

(1)

Disparate Impact of Job Qualifications

399

(1)

Affirmative Action

399

(1)

Preferential Treatment of Veterans and Residents

400

(2)

Sexual Harassment

402

(1)

Age Discrimination

402

(1)

Employment Discrimination against Persons with Disabilities

403

(1)

Protection against Discrimination Based on Sexual Orientation

403

(1)

The Family Medical and Leave Act

404

(1)

First Amendment Rights

404

(2)

Freedom of Speech

404

(1)

Freedom of Religion

405

(1)

Fourth Amendment Rights

406

(3)

Drug Testing

409

(1)

Conclusion

409

(1)

Key Terms

410

(1)

Questions for Thought and Discussion

411

(1)

Edited Cases

Kenner Police Dept. v. Kenner Municipal Fire & Police Civil Service Board

412

(2)

Johnson v. Transportation Agency

414

(7)

Rankin v. McPherson

421

(4)

Shelton v. University of Medicine & Dentistry of New Jersey

425

(3)

National Treasury Employees Union v. Von Raab

428

(6)

End Notes

434

(3)

Governmental Liability

437

(52)

Introduction

438

(1)

Sovereign Immunity

438

(2)

An Early Exception to Sovereign Immunity

439

(1)

The Tucker Act

439

(1)

Sovereign Immunity Does Not Bar Judicial Review of Agency Actions

439

(1)

The Federal Tort Claims Act

440

(8)

The Feres Doctrine

440

(1)

Common Exceptions to Governmental Liability under the Federal Tort Claims Act

441

(5)

Pursuing a Claim under the Federal Tort Claims Act

446

(2)

The Westfall Act Amends the Federal Tort Claims Act

448

(1)

Violation of Constitutional Rights

448

(6)

Scope of Section 1983

448

(2)

Constitutional Torts

450

(1)

Pursuing a Claim under Section 1983

451

(1)

Liability of Federal Officials for Violations of Constitutional Rights

452

(2)

Immunity of Federal and State Officials

454

(2)

Absolute Immunity

454

(1)

Qualified Immunity

455

(1)

Liability of State and Local Governments

456

(9)

Sovereign Immunity of Local Governments

457

(1)

Statutory Waivers of Sovereign Immunity

458

(3)

The Eleventh Amendment

461

(2)

Congressional Abrogation of State Sovereign Immunity

463

(2)

Liability of Local Governments in Section 1983 Actions

465

(1)

Conclusion

465

(1)

Key Terms

466

(1)

Questions for Thought and Discussion

466

(1)

Edited Cases

United States v. Gaubert

467

(5)

DeShaney v. Winnebago County Department of Social Services

472

(2)

Bivens v. Six Unknown Federal Narcotics Agents

474

(2)

Butz v. Economou

476

(7)

Manna v. State

483

(4)

Endnotes

487

(2)

The Future of Administrative Law

489

(10)

Introduction

490

(1)

Deregulation, Devolution, and the Neoadministrative State

491

(1)

``Regneg'' and ADR

491

(1)

Is the APA Still Relevant?

492

(1)

The Rise of E-Government

492

(1)

Electronic Rulemaking

492

(1)

Concern about Privacy

493

(1)

The Expanding Fourth Branch of Government: Initiative and Referendum

493

(1)

Globalization and the Rise of International Institutions

494

(1)

The World Trade Organization

495

(1)

Conclusion

495

(1)

Assessing Administrative Law

496

(1)

Key Terms

496

(1)

Questions for Thought and Discussion

497

(1)

Endnotes

497

(2)

Appendix A: The Constitution of the United States of America

499

(13)

Appendix B: The Federal Administrative Procedure Act: Selected Provisions

512

(9)

Appendix C: Basic Legal Research

521

(7)

Glossary

528

(29)

Table of Cases

557

(4)

Index

561

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Law and the Administrative Process (with InfoTrac)

Law and the Administrative Process (with InfoTrac)

9780534177089

0534177085

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