ADMINISTRATIVE AGENCIES

1. ADMINISTRATIVE AGENCIES ~~~~~ Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

2. INTRODUCTION • Administrative law involves a challenge to the exercise of power by the executive government. For this reason, it is necessary to look at the composition and powers of executive government, and at how they exercise their powers when they take action or make decisions • In practical terms executive government interferes in our lines and their actions affect our lives in many ways. • When we venture on a certain business, we have to acquire a relevant permit and license before commencing our business. • Even after we comply with such requirement, a government inspector sent by the relevant agency enters into our premise without court warrant and can conduct investigation • The food and other household provisions we buy are subject to regulations

3. Administrative agencies make individual decisions affecting citizens‘ lives and they set general policies affecting an entire economy through they are usually headed by officials who are neither elected nor directly accountable to the public. • Under this unit we will have a deeper look at the nature, purpose, scope and nature of power of the administrative agencies. The growth of the administrative law to large extent may be identified with the proliferation of administrative agencies, not only in number but also in power and function . • Define administrative agency and identify ways in which a definition of agency affects the scope of the administrative law. • Identify the reasons for creating administrative agencies. • Distinguish executive agencies from independent agencies. • Examine the mechanisms used to enforce a law by administrative agencies. • Differentiate executive, legislative and judicial power of agencies. • Reason out why administrative law is closely related to administrative agencies.

4. BASICS OF ADMINISTRATIVE LAW

5. Agencies Defined • Creations of the legislature • Authorized to carry out specific duties: • Issue rules and regulations • Adjudicate claims and disputes • Enforce and administer machinery of government

6. Two Types of Agencies • Executive • May not act independently of executive • Head serves at pleasure of executive • Independent • May act independently • Head appointed by executive and serves for fixed term

7. Charles Evans Hughes _____________ Chief Justice, United States Supreme Court 1930 – 1941 Source: http://www.supremecourthistory.org/02_history/subs_timeline/images_chiefs/011.html

8. “Whatever the cause of the failure to give appropriate public notice of the change in the sections, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist.” Source: Panama Refining Co. v. Ryan, 293 U.S. 388, 412-13 (1935) Source: http://www.supremecourthistory.org/02_history/subs_history/02_c11.html

9. 1946 Administrative Procedure Act 1936 Federal Register Act

10. NATURE OF AGENCIES • There is hardly any function of modern government that does not involve, in some way, an administrative agency. • The 20th century has witnessed an unprecedented proliferation of agencies with varying size, structure, functions and powers charged with the task of day – to- day governing. • Their existence and growth have been the typical characteristics of the modern administrative state (welfare state.) For this reason, they have been responsible for the expansion and development of administrative law greatly influencing its content, scope and future. • In the broadest sense, administrative law does not involve the study of how those parts of our system that is neither legislature nor courts make decisions

11. It is concerned with the study of the procedures, powers and control mechanisms of the administrative agencies. For this reason, the complex web of the administrative process of agencies constitutes an essential aspect of administrative law. • Administrative agencies have become a major part of every system of government in the world. In Ethiopia, for instance, they are the primary tools through which local, states and the federal government performs regulatory functions. • The vast increase of agencies in number and power has been observed by a U.S. Supreme Court judge who makes the following remarks: • “ The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts . . . They have become a veritable fourth branch of government.”

12. MEANING OF ADMINISTRATIVE AGENCY • Defining an administrative agency is not an easy task. • Agencies come in a huge array of sizes and shape. • This is coupled with their wide ranging and complex functions and their power to legislate and adjudicate, in addition, to their normal executive powers, makes it challenging and difficult to precisely provide a precise and concise definition covering all these aspects of the administrative process. • Agencies may be defined as governmental entities, although they affect the rights and duties of persons are neither courts nor legislatures. • For one thing it is true that agencies are not located within the legislative or judicial organ of the government. Although they are within the executive branch, most of them are not mainly accountable to the executive branch

13. The term executive branch of government is used either to refer to the president (e.g. in U.S.), or the prime minister and the council of ministers (e.g. Pakistan). • This definition lacks some precision. A government entity outside of the judiciary or the legislature does not necessarily qualify as an administrative agency. • The American Administrative Procedure Act adopts this and defines agency as 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 • In this definition, the reference to ―authority‖ signifies a restriction on the scope of government entities that may be properly called as agency. • Authority refers to a power to make a binding decision. Therefore, only entities with such power constitute an agency. • In a similar fashion, Black‘s Law dictionary defines agency as a governmental body with the authority to implement and administer particular legislation

14. A more detailed definition of an administrative agency is given in the New York Administrative Procedure Act, which reads: • “An agency is any department, board, bureau, commission, division, office, council, committee or officer of the state or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings but shall not include the governor, agencies in the legislative and judicial branches, agencies created by interest compact or international agreement, the division of the military and naval affairs to the extent it exercise its responsibility for military and naval affairs, the division of state police, the identification and intelligence units of the division of criminal justice services, the state insurance fund, the unemployment insurance appeals board.”

15. Generally speaking, we may identify two important elements in distinguishing whether a certain government entity is an administrative agency or not. • Firstly, the nomenclature may be indicative of the status of an entity as an agency. Most agencies have names like department, authority, commission, bureau, board etc;… • Secondly, the government entity should be empowered to legislate (through delegation), or adjudicate individual cases, in addition to its merely executive functions. Generally, an entity is an agency if it has authority to take a binding action. • Even though the above two elements are fulfilled, it is also important to check whether there is any express exclusion from the above definition. You can clearly see in the New York Administrative Procedure Act that some entities are excluded expressly by the legislature.

16. CLASSIFICATION OF ADMINISTRATIVE AGENCIES • Agencies are created with varying size, structure, functions and powers. • Some of them may be established with broader powers; in charge of regulating a certain sector of the economy. • This is typically the case with ministries, which are headed by a high-level government minister. • Ministries not only enforce a government program or policy, but they also supervise and overview other lower agencies that are accountable to them. • Others are comparatively small in structure and are charged with a very specific task of implementing a certain portion of government policy or programme.

17. With the exception of few, almost all agencies are under the direct control and supervision, in their day to today implementation of government task law, or policy assigned to them by the enabling act. • The remaining very small agencies function independently outside the direct control of the executive branch and they are accountable to the legislature. Agencies are classified or categorized based on such mode of accountability. • Accordingly, those agencies directly accountable to the executive branch are known as executive agencies, where those accountable to parliament are called independent agencies. • In Pakistan, executive agencies are usually accountable to a certain ministry, or council of ministries, or the prime minister. • Even though the enabling act may subject an agency to the control of another ministry, it has also to be noted that they are ultimately accountable to either the council of ministers, or to the prime minister

18. MODE OF CREATING AN AGENCY • In Pakistan, whether it is at the Federal or state level, agencies are creatures of the legislature. • They do not spring up on their own, and courts or the council of ministers cannot create them. The constitution expressly requires the establishment of some independent agencies. • They do not have i.e. material and legal existence unless the house of people‘s representatives enacts a specific law for their establishment. • Hence, agencies that are in function so far those that a legislature has given them the authority to function. The authority may be exceptionally broad or incredibly narrow

19. It may be said that agencies are created in two ways: • One is through the constitution, and the second is through act of parliament. • However, one important point that should be emphasized. Is that the independent agencies, which have a constitutional basis, still require an enabling act of the parliament for their legal existence. • The only difference between the two modes of creating an agency is that when the constitution requires the establishment of some agencies the house of people‘s representatives has a duty to promulgate the enabling act for that specific agency. • When an agency is created only through the enabling act, in the absence of constitutional duty from the parliament, its existence is totally dependent on the will or option of the parliament.

20. REASONS FOR THE CREATION OF AGENCIES • Agencies are created and assigned specific tasks by the legislature. • They carry out the tasks making decisions of various sorts and supervising the procedure by which the decisions are carried out. • There are many reasons why administrative agencies might be needed. Almost every governmental agency has been created because of a recognized problem in society, and from the belief that an agency may be able to help in solving the problems. • Next slide will elaborate the main reasons for the creation of the administrative agencies

21. PROVIDING SPECIFICITY • The legislative branch of government cannot legislate in sufficient detail to cover all aspects of many problems. • The house of the people‘s representatives cannot possibly legislate in minute detail and, as a consequence, it uses more and more general language in stating its regulatory aims and purposes. • For instance, the house of people‘s representatives cannot enact a tax law that covers every possible issue that might arise. • Therefore, it delegates to the council of ministers and ministry of revenue, FBR the power to make rules and regulations to fill in the gaps, and create the necessary detail to make tax laws workable. In many areas, the agency has to develop detailed rules and regulations to carryout the legislative policy.

22. PROVIDING PROTECTION • Many government agencies exist to protect the public, especially from the business community. • Business has often failed to regulate itself, and the lack of self- regulation has often been contrary to the public interest. • For instance, the Environmental Protection Agency is created to regulate environmental pollution. • In the absence of such agency, business could not voluntarily refrain from polluting the environment. The same can be said with respect to quality of private higher education and unjustified and unreasonable increase in the price of essential goods.

23. PROVIDING SERVICES • Many agencies are created simply out of necessity. • If we are to have roads, the NHA is necessary. • Welfare programs require government personnel to administer them. • Social security programs necessitate that there should be a federal agency to determine eligibility and pay benefits. • The Social Security Authority is established to process pension payment and to determine entitlement to such benefit. The mere existence of most government programs automatically creates new agencies or expands the function of the existing ones

24. STRUCTURE AND ORGANIZATION • The structure and internal organization of an administrative agency may greatly vary depending on the government policy and the programme it is expected to accomplish. • Some of them may have different departments enjoying a substantial portion of power given to the agency by the enabling act. • Still there will be lower organs labeled usually as sections with the specific tasks of the day-to-day governing. Usually, the arrangement of the internal organization will take so many factors into considerations, like budget implication. • However, the main objective of the form of structure is aimed at ensuring efficiency and effectiveness in administration

25. PURPOSE OF ADMINISTRATIVE AGENCIES • Administrative agencies are established by the legislator to perform specific tasks assigned to them by law. • What they actually do is to enforce a specific law. They are usually charged with the day-to-day details of governing. The agencies carry out their tasks by making decisions of various sorts and supervising the procedures by which the decisions are carried out. • The function of administrative agencies is closely related to the reasons for their creation. A certain administrative agency comes into existence when the legislator creates an agency for either of those reasons. • The agency, by making use of its expertise and giving close attention to detail and technical matters, takes the necessary administrative action, which may be legislative or judicial in order to enforce the law.