1. PROBLEM
   1. Administrative agencies constitute an unconstitutional, bureaucratic fourth branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary).
   2. Jurisdiction of the "court".
2. SOLUTION
   1. Agencies are created by an enabling statute, which is a state or federal law that gives birth to the agency and outlines the procedures for the agency's rule making. Furthermore, agencies include the public in their rule-making processes.
      1. Thus, by proxy, agencies are the will of the electorate.
3. Although Article I, Section 1, of the federal Constitution plainly states that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," the "necessaryand- proper" clause, in the eighth section of the same article, states that Congress shall have power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers… in any Department or Officer thereof."
4. This argument prevailed, and courts therefore have allowed the U.S. Congress— and other legislative bodies—to make laws that delegate limited lawmaking authority to administrative agencies. The substance of an administrative agency's powers must be intelligible, and a system of controls must be in place to limit those powers, but courts almost always find that administrative agencies meet these requirements.
   1. LIMITED LAWMAKING AUTHORITY
   2. SUBSTANCE OF AGENCY POWER MUST BE INTELLIGIBLE
   3. CONTROLS LIMITING POWERS
5. SCOPE & PURPOSE OF ADMINISTRATIVE AGENCY
6. Administrative agency rules and regulations often have the force of law against individuals.
   1. This tendency has led many critics to charge that the creation of agencies circumvents the constitutional directive that laws are to be created by elected officials. According to these critics, administrative agencies constitute an unconstitutional, bureaucratic fourth branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary).
      1. In response, supporters of administrative agencies note that agencies are created and overseen by elected officials or the president.
         1. Administrative agencies are created by the federal Constitution, the U.S. Congress, state legislatures, and local lawmaking bodies to manage crises, redress serious social problems, or oversee complex matters of governmental concern beyond the expertise of legislators.
7. AGENCY; A STUDY GUIDE #2
   1. By The Angry Jeweler; The Hennalady; Lisa Stinocher O'Hanlon http://angryjeweler.wix.com/write
      1. This study guide is for the following documents:
         1. Black's Law Dictionary (8th ed. 2004)
         2. legal-dictionary.thefreedictionary.com/Administrative+Agency
         3. INTRODUCTION TO THE LAW OF AGENCY http://www.scribd.com/doc/52197323/Agency-Defined
8. Supporters of administrative agencies note also that agencies are able to adjudicate relatively minor or exceedingly complex disputes more quickly or more flexibly than can state and federal courts, which helps preserve judicial resources and promotes swift resolutions. Opponents argue that swiftness and ease at the expense of fairness are no virtues, but while the debate continues, administrative agencies thrive.
9. Governmental representation in an administrative capacity of any kind can be considered administrative agency.
10. ENABLING STATUTE
    1. The president is an administrative agent whose enabling statute is the federal Constitution.
       1. Any regulation established by such an agency that conflicts with a federal regulation will not be legally valid, but this fact does not keep state agencies from developing regulations that differ from those promulgated by their federal counterparts.
11. AGENCIES WITHIN AGENCIES
    1. The thirteen executive departments reporting to the president are administrative agencies.
       1. For example, the DEPARTMENT OF JUSTICE is a cabinet-level executive department, but it functions as the administrative agency that addresses the legal concerns of the U.S. government and its people. The departments housed within the Department of Justice, such as the Drug Enforcement Administration and the Federal Bureau of Investigation, are also administrative agencies, and they have procedures and rules of their own.
12. TYPES OF AGENCY
    1. Federal Administrative Agencies
       1. federal agency. A department or other instrumentality of the executive branch of the federal government, in-cluding a government corporation and the Government Printing Office. • The Administrative Procedure Act defines the term agency negatively as being any U.S. governmental authority that does not include Congress, the courts, the government of the District of Columbia, the government of any territory or possession, courts-martial, or military authority. 5 USCA § 551. The caselaw on this definition focuses on authority: generally, an entity is an agency if it has authority to take binding action. Other federal statutes define agency to include any executive department, government corporation, government-controlled corporation, or other establishment in the executive branch, or federal regulatory board. [Cases: Administrative Law and Procedure 101; United States 30. C.J.S. Public Administrative Law and Procedure § 8; United States § 49.] independent agency.A federal agency, commission, or board that is not under the direction of the executive, such as the Federal Trade Commission or the National Labor Relations Board. — Also termed independent regulatory agency; independent regulatory commission. [Cases: United States 29. C.J.S. United States §§ 52, 57.] Black's Law Dictionary (8th ed. 2004) , Page 193
          1. On the federal level, business and individual matters are addressed by such agencies as the Farm Credit Administration, Small Business Administration, Commodity Futures Trading Commission, Federal Trade Commission, Federal Deposit Insurance Corporation, Office of Thrift Supervision, Internal Revenue Service, DEPARTMENT OF COMMERCE, Interstate Commerce Commission, and Securities and Exchange Commission. Governmental money matters are overseen and assisted by the General Accounting Office, Office of Management and Budget, Office of the Comptroller of the Currency, Treasury Department, General Services Administration, Congressional Budget Office, and Federal Reserve Board.
          2. Public services are handled by administrative agencies that include the DEPARTMENT OF EDUCATION, DEPARTMENT OF TRANSPORTATION, Environmental Protection Agency, Food and Drug Administration, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Department of Interior, Immigration and Naturalization Service, and National Highway Traffic Safety Administration.
          3. Work-related administrative agencies include the Tennessee Valley Authority, Office of Technology Assessment, Occupational Safety and Health Administration, Occupational Safety and Health Review Commission, National Labor Relations Board, Mine Safety and Health Administration, Mine Safety and Health Review Commission, Merit Systems Protection Board, DEPARTMENT OF LABOR, Equal Employment Opportunity Commission, and Office of Personnel Management.
          4. Police and military functions are served by the Central Intelligence Agency, DEPARTMENT OF DEFENSE, Department of Justice, DEPARTMENT OF VETERANS AFFAIRS, Federal Bureau of Investigation, and National Security Council. The administrative agency that directly affects the most U.S. citizens is the Social Security Administration (SSA). The SSA collects contributions from workers and pays out cash benefits when a worker retires, dies, or becomes disabled.
          5. As the needs of the nation change, Congress continues to establish new agencies and abolish existing agencies. The Interstate Commerce Commission, for instance, was established in 1887 to regulate carriers engaged in the transportation of interstate and foreign commerce in the United States. Over time, many of the commission's functions were transferred to other agencies or otherwise abandoned, and Congress abolished the commission in 1995. A more recent example of the development of an administrative agency is the creation of the Homeland Security Department in 2002 to prevent terrorist attacks in the United States and to reduce the country's vulnerability to Terrorism in the aftermath of the September 11th Attacks.
    2. INDEPENDENT AGENCY
       1. However, an enabling statute may establish an independent agency, commission, or board, which does not fall under the direction of the president. The primary distinction between an executive agency and an independent agency is that the statute creating an independent agency typically precludes the president from removing the head of the agency without cause.
          1. An administrative agency that falls under the direction of the Executive Branch is referred to as an executive agency.
             1. Because the president is generally able to appoint the chairs or fill vacancies within these agencies, the president is often able to influence their activities, notwithstanding the limitation on the removal of the heads of the agencies.
             2. Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), the Court held the President FRANKLIN D. ROOSEVELT could not remove the commissioner of the Federal Trade Commission (FTC) without cause. The statute that created the commission permitted removal of the commissioner only for inefficiency, neglect of duty, or malfeasance of office.
       2. Many of the administrative agencies that affect everyday activities are independent agencies. Among the numerous examples of independent agencies are the Central Intelligence Agency, Environmental Protection Agency, the NATIONAL LABOR RELATIONS BOARD, and the Securities and Exchange Commission.
    3. State Administrative Agencies
       1. state agency.An executive or regulatory body of a state. • State agencies include state offices, departments, divisions, bureaus, boards, and commissions. — Also termed state body.
          1. State and local administrative agencies often mirror federal agencies. Thus, the individual states have agencies that control transportation, public health, public assistance, education, natural resources, labor, law enforcement, agriculture, commerce, and revenue.
    4. Local Administrative Agencies
       1. local agency.A political subdivision of a state. • Local agencies include counties, cities, school districts, etc. Black's Law Dictionary (8th ed. 2004) , Page 193
    5. quasi-governmental agency.A government-sponsored enterprise or corporation (sometimes called a govern-ment-controlled corporation), such as the Federal National Mortgage Corporation. [Cases: United States 53. C.J.S. United States §§ 83, 88–95.] Black's Law Dictionary (8th ed. 2004) , Page 193
       1. financing agency.A bank, finance company, or other entity that in the ordinary course of business (1) makes advances against goods or documents of title, or (2) by arrangement with either the seller or the buyer intervenes to make or collect payment due or claimed under a contract for sale, as by purchasing or paying the seller's draft, making advances against it, or taking it for collection, regardless of whether documents of title accompany the draft. UCC § 2-104(2). Black's Law Dictionary (8th ed. 2004) , Page 192
          1. universal agency.See general agency. 2. An agent's place of business. 3. A governmental body with the authority to implement and administer particular legislation. — Also termed (in sense 3) government agency; administrative agency; public agency; regulatory agency. [Cases: Administrative Law and Procedure 101. C.J.S. Public Administrative Law and Procedure § 8.]
13. 5 U.S.C. §551
    1. http://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap5-subchapII-sec551.pdf
       1. AGENCY MEANS:
14. Just like federal agencies, state and local administrative agencies are often empowered to hold hearings. These hearings are conducted by their administrative boards, which are obligated to represent the public interest.
    1. A Parole board, for example, holds informal hearings during which prisoners are allowed to offer evidence of their suitability for early release from incarceration.
15. By contrast, courts must remain impartial to the two parties before them.
16. The strict rules observed in a courtroom do not apply to these hearings, and the board's decisions must account for the public interest as well as the rights of the prisoners.
17. YOU ARE NOT IN COURT
18. Given the specialized knowledge within administrative agencies, ADMINISTRATIVE LAW judges (ALJs), who hear agency claims and disputes, are loath to overturn the legal conclusions reached by administrative boards.
19. Determinations and sanctions made by ALJs are subject to review by state or federal courts, but a party must exhaust all appeals within the agency before suing in civil court.
20. ADMINISTRATIVE PROCEDURES ACT To keep agencies from wielding unbridled power, the Administrative Procedure Act of 1946 (APA) (5 U.S.C.A. § 551 [1982]) sets standards for the activities and rule making of all federal regulatory agencies. The APA provides federal courts with a framework for reviewing the rules made and procedures used by administrative agencies. Individual states have similar statutes to guide their own courts.
21. Many agencies have the power to assess fines or otherwise deprive persons of liberty in hearings conducted by their own judicial bodies, or administrative boards.
22. ULTRA VIRES?
    1. An agency's actions must be in accordance with its enabling statute, and courts will examine the agency records to determine whether the agency exceeded its lawmaking or judicial powers.
23. Rigorous judicial oversight of agencies would defeat a cherished feature of administrative agency by eliminating agency flexibility in resolving conflicts. To avoid this outcome, most enabling statutes are worded vaguely, in such a way as to allow the agencies broad discretion in determining their rules and procedures.
24. 5 U.S.C. §551 (6) ‘‘order’’ means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;
    1. 5 U.S.C. §551 (7) ADJUDICATION
25. JUDICIAL REVIEW
    1. http://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap7.pdf
       1. 5 U.S.C. §701. Application; definitions.
       2. 5 U.S.C. §702. Right of review.
       3. 5 U.S.C. §703. Form and venue of proceeding.
       4. 5 U.S.C. §704. Actions reviewable.
       5. 5 U.S.C. §705. Relief pending review.
       6. 5 U.S.C. §706. Scope of review.