Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P12 potx

artificial structures or buildings on it. A landowner can enforce the right to lateral support in court. A lawsuit for the removal of lateral support accrues when the damage occurs, not when the excavation is done. An adjoining landowner who excavates close to his or her boun dary line has a duty to prevent injury arising from the removal of the lateral support of a neighbor’s property. Because the right to lateral support is considered an absolute PROPERTY RIGHT, an adjoining landowner will be liable for damages to the natural condition of the land regardless of whether or not he or she acted negligently. When, however, a landowner has erected buildings on the land, his or her right to recover for deprivation of the lateral support is differ- ent. Because additional weight has been placed on the land, thus increasing the burden on the lateral support, the landowner can be award ed damages for injuries to the building caused by excavation only if his or her neighbor has been negligent. Sometimes local ordinances require that persons planning to excavate on their own property give notice to neighboring adjoining landowners so that neighbors may take preven- tive measures to protect their property. The failure of landowners who receive notice to take precautions does not necessarily absolve the excavator of LIABILITY for NEGLIGENCE. If, howev- er, the excavator does not notify neighboring landowners, courts have treated this failure as negligence, and the excavator will be responsible for damages even though the excavating itself was not done negligently. When evidence establishes that an adjoining landowner has removed the lateral support of a neighbor’s land, the neighbor will recover damages in the amount of either the cost of restoring the property to its value before its support was removed or the cost of restoring the land to its former condition, whichever is less. An injunction prohibiting further excava- tion may be granted if it poses a clear danger to contiguous lands and if it will cause irreparable damage. Subjacent Support A landowner is entitled to subjacent support, the absolute right to have one’s land supported from beneath its surface. If one person owns the surface of the land while another owns the subjacent surface, the owner of the surface is entitled to have it remain in its natural conditio n without subsidence caused by the subsurface owner’s withdrawal of subjacent materials. An adjoining landowner w ho, during excavation, taps a subterranean stream, causing the soil of the neighbor’s land to subside, will be liable for any injuries that result. The surface owner’s right to sue the subsurface owner for deprivation of subjacent support arises when the land actually subsides, not when the excavation is made. The constr uction of buildings on the surface of the land does not lessen a person’s right to subjacent support. It does, however, change the circumstances under which that person may recover for the removal of subsurface support. If such buildings are damaged, their owner must show that the removal of the support was done negligently. Light, Air, and View No landowner has an absolute right to light and air from or passing over adjoining property or to a view over adjoining lands. Zoning laws imposed by localities may, however, require that any construction undertaken by an individual not deprive an adjoining landowner of adequate air, light, and view. Similarly, many agreements such as restrictive covenants in deeds or easements affect a person’s duty toward his or her next-door neighbor’s right to air, light, and view. In the absence of zoning laws or agreements, therefore, a person may build on his or her own property without regard to the fact that he or she is depriving the next-door neighbor of the light, air, and view that was enjoyed before the building was erected. An exception is a structure that blocks air, light, and view for the sole purpose of injuring a neighbor—such as a “spite” fence—and which is of no BENEFICIAL USE or pleasure to the owner. Courts will generally not permit such structures. Encroachments An ENCROACHMENT is an intru- sion upon the property of another without that person’s permission. No person is legally entitled to construct buildings or other struc- tures so that any part, regardless of size, extends beyond that person’s property line and intrudes upon adjoining lands. An encroaching owner can be required to remove the eaves of a building that overhang an adjoining lot. If he or she refuses to do so, the owner of the contiguous lot may personally remove as much of the encroachment that deprives him or her of the complete enjoyment of his or her land, but if negligent, he or she will be liable for GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 ADJOINING LANDOWNERS damages. Should any expenses be incurred in the removal of the encroachment from the adjoining land, the person whose property was encroached upon can sue the owner to recover damages. The person whose property has been encroached upon may sue the encroacher under either the theory of nuisance or the theory of TRESPASS to obtain monetary damages, or instead, may seek an injunction against continuation of the encroachment or to force its removal. Trees and Shrubs Landowners should not permit trees or hedges on their property to invade the rights of adjoining landowners. If an individual knows, for example, that a tree on his or her property is decayed and may fall and damage the property of another, that individual has a duty to eliminate the danger. A tree on the boundary line of contiguous land belongs to both adjoining landowners. Each owner has an interest identical with the portion standing on his or her land. Each can sever intruding tree branches or roots at the boundary line of his or her property, whether or not any injuries have been sustained by the intrusion, but reasonable care must be exercised so as not to kill the entire tree. FURTHER READINGS Barlow, John R. II, and Voncannon Barlow. 1997. Skelton on the Legal Elements of Boundaries & Adjacent Properties 2d ed. New York: LexisNexis. Jex, Thomas D. 1998. “Alcaraz v. Vece: If You Mow or Water Your Next-Door-Neighbor’s Yard, You Might Be Liable for Anyone Injured There.” BYU Journal of Public Law 13 (winter). Merrill, Karen R. 2002. Public Lands and Political Meaning: Ranchers, the Government, and the Property between Them. Berkeley: Univ. of California Press. Perin, Constance. 1977. Everything in Its Place: Social Order and Land Use in America. Princeton, NJ: Princeton Univ. Press. Stephens, Ana Boswell. 1999. “Prospecting for Oil at the Court House: Recovery for Drainage Caused by Secondary Recovery Operations.” Alabama Law Review 50 (winter). CROSS REFERENCE Land-Use Control. ADJOURNED TERM A continuance of a previous or regular court session that results from postponement. When a term is adjourned, it is actually prolonged due to a temporary putting off of the business being conducted. ADJOURNMENT A putting off or postponing of proceedings; an ending or dismissal of further business by a co urt, legislature, or public official—either temporarily or permanently. If an adjournment is final, it is said to be SINE DIE, “without day” or without a time fixed to resume the work. An adjournment is different from a RECESS, which is only a short break in proceedings. In legislatures, adjournment officially marks the end of a regular session. Both state and federal lawmakers vote to determine when to adjourn. The exact timing depends upon multi- ple factors such as work load, election schedules, and the level of comity among lawmakers. Because a session can end with unfinished legislative business, adjournment is commonly used as a means of political leverage in securing or delaying action on important matters. In the U.S. Congress, where the single annual legisla- tive session usually ends in the fall, the president may call an adjournment if the House and Senate cannot agree upon a date. FURTHER READINGS Baumann, David, and Kirk Victor. 2001. “Congress: Pitfalls to Adjournment.” National Journal (November 10). “Of Adjournment.” 2009. ChestofBooks.com. Available online at http://chestofbooks.com/business/meetings/ Rules-Order-Conduct/Of-Adjournment.html; website home page: http://chestofbooks.com (accessed August 28, 2009). Robert, Henry M. 2000. Robert’s Rules of Order, Newly Revised. Cambridge, MA: Perseus. CROSS REFERENCES Congress of the United States ; Legislature. ADJUDGE To determine by a judge; to pass on and decide judicially. A person adjudged guilty is one who has been convicted in court. ADJUDICATION The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADJUDICATION 99 the parties thereto have been considered and set at rest. Three types of disputes are resolved through adjudication: disputes between private parties, such as indiv iduals or corporations; disputes between private parties and public officials; and disputes between public officials or public bodies. The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or LEGAL RIGHT affected by, the dispute) and an opportunity for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable SETTLEMENT of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal. The adjudication of a controversy involves the performance of several tasks. The trier must establish the facts in controversy, and define and interpret the applicable law, or, if no relevant law exists, fashion a new law to apply to the situation. Complex evidentiary rules limit the presentation of proofs, and the Anglo-American tradition of STARE DECISIS, or following precedents, controls the outcome. However, the process of applying established rules of law is neither simple nor automatic. Judges have considerable latitude in interpreting the statutes or CASE LAW upon which they base their decisions. An age-old question that still plagues legal theorists is whether judges “make” law when they adjudicate. SIR WILLIAM BLACKSTONE believed that judges do nothing more than maintain and expound established law (Commentaries on the Laws of England); other writers vehemently disagree. Some legal analysts maintain that the law is whatever judges declare it to be. Echoing those sentiments, President THEODORE ROOSEVELT asserted that “the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law- making” (Message to Congress [Dec. 8, 1908]). Supreme Court Justice BENJAMIN N. CARDOZO, writing in The Nature of the Judicial Process, argued that the law is evolutionary and that judges, by interpreting and applying it to specific sets of facts, actually fashion new laws. Whether judges are seen as making law or merely following what came before, they are required to operate within narrow strictures. Even when they are deciding a case of FIRST IMPRESSION (a question that has not previously been adjudicated), they generally try to analogize to some existing PRECEDENT. Judges often consider customs of the community; political and social implications; customs of the trade, market, or profession; and history when applying the law. Some, such as Justice Oliver Wendell Holmes and Justice Cardozo, thought that considerations of social and PUBLIC POLICY are the most powerful forces behind judicial decisions. A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to an adjudication. Anglo-American law presumes that the parties to the dispute are in the best position to know the facts of their particular situat ions and develop their own proofs. If the hearing is before a court, formal rules of procedure and evidence govern; a hearing before an adminis- trative agency is genera lly less structured. Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appeale d to a higher tribunal (a court of appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well- reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it. Adjudication of a controversy generally ensures a fair and equitable outcome. Because Justice Charles Tejada listens to arguments during a New York State Supreme Court proceeding. The adjudicative process is governed by formal rules of evidence and procedure. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 100 ADJUDICATION courts are governed by evidentiary and proce- dural rules, as well as by stare decisis, the adjudicative process assures litigants of some degree of efficiency, uniformity, and predict- ability of result. FURTHER READINGS Cardoza, Benjamin N. 2009. The Nature of the Judicial Process (1921). Whitefish, MT: Kessinger. Lewis, William D., ed. 2007. Commentaries on the Laws of England. Clark, NJ: Lawbook Exchange. Lucy, William. 1999. Understanding and Explaining Adjudi- cation. New York: Oxford Univ. Press. Roosevelt, Theodore. 1908. Eighth Annual Message to Congress. In The American Presidency Project [online], compiled by John T. Woolley and Gerhard Peters. Santa Barbara, CA: Univ. of California. Available online at http://www.presidency.ucsb.edu (accessed July 3, 2009). CROSS REFERENCES Blackstone, Sir William; Cardozo, Benjamin Nathan; Holmes, Oliver Wendell, Jr.; Judiciary. ADJUDICATIVE FACTS Factual matters concerning the parties to an administrative proceeding as contrasted with legislative facts, which are general and usually do not touch individual questions of particular parties to a proceeding. Facts that concern a person's motives and intent, as contrasted with general policy issues. Those facts that must be found BEYOND A REASONABLE DOUBT by the trier of fact before there can be a conviction. Adjudicative facts, of which a trial court may take notice if a fact is not subject to reasonable dispute, are those to which law is applied in the process of adjudication; they are facts that, in a jury case, normally go to the jury. The role of a U.S. court is to resolve the dispute that has brought the parties before it. Determining what happened to whom, when and how it happened, and what the result is or will be, is part of the adjudicative process by which the court reaches that RESOLUTION. These determinations establish the ADJUDICATIVE FACTS of the dispute. Adjudicative facts differ from ordinary facts in that they are considered facts only if the court recognizes and accepts them. For example, a witness may TESTIFY that she saw the defendant’s car parked at a specific place at a specific time. Thesearethefactsassherecallsthem.However, the court may reject her account and instead accept another witness’s TESTIMONY that the DEFEN- DANT was driving that same car i n another part of town at the same time. The second witness’s account will therefore become part of the adjudicative facts of the case, and the f irst witness’s recollection w ill be considered IMMATERIAL. Adjudicative facts are specific and unique to a particular controversy. For this reason, the fact determination in one case is not controlling in other similar cases, even if all the cases arose from the same incident. Adjudicative facts differ from LEGISLATIVE FACTS, which are general and can be applied to any party in a similar situation. For example, the facts used by a court to determine the legality of a tax increase levied against a single taxpayer would be adjudicative facts particular to that taxpayer’s case. By contrast, the facts used to determine the legality of a general tax increase levied against all the residents of a city would be legislative in nature. Because facts can be perceived and interpreted differently by different people, the skillful lawyer is careful about what facts to present and how to present them at trial. Adjudicative facts re-create the course of events that led to the dispute. They may also predict what will happen as a result. For example, where on e party is suing another for PERSONAL INJURY, adjudicative facts will determine what happened, who was at fault, and what redress is appropriate for pain and suffering. Adjudicative facts will further establish what lasting consequences, such as lost future wages, the PLAINTIFF is likely to suffer and what compensation is fitting. Adjudicative facts found by the court are final and will not be reviewed on appeal except in cases where it can be shown that the findings were made on insubstantial evidence or were clearly erroneous. FURTHER READINGS Carp, Robert A., and Ronald Stidham. 1993. The Judicial Process in America. 2d ed. Washington, D.C.: Congres- sional Quarterly. Fraher, Richard M. 1987. “Adjudicative Facts, Non-evidence Facts, and Permissible Jury Background Information.” Indiana Law Journal 62 (spring). “Section 201. Judicial Notice of Adjudicative Facts.” Available online at http://www.mass.gov/courts/sjc/ guide-to-evidence/201.htm; website home page: http:// www.mass.gov/ (accessed August 28, 2009). ADJUNCTION Attachment or affixing to another. Something attached as a dependent or auxiliary part. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADJUNCTION 101 Under the CIVIL LAW system that prevails in much of Europe and Latin America, adjunction is the permanent union of a thing belonging to one person to something that belongs to someone else. A branch agency, for example, is an adjunct of the main department or administrative agency. ADJURATION A swearing; taking an oath to be truthful. To adjure is to command solemnly, warning that penalties may be invoked. ADJUST To settle or arrange; to free from differences or discrepancies. To bring to a satisfactory state so that parties are agreed, as to adjust amount of loss by fire or controversy regarding property or estate. To bring to proper relations. To determine and apportion an amount due. The term is sometimes used in the sense of pay, when used in reference to a liquidated claim. Determination of an amount to be paid to insured by insurer to cover loss or damage sustained. ADJUSTED GROSS INCOME The term used for income tax purposes to describe gross income less certain allowable deductions such as trade and business deductions, moving expenses, alimony paid, and penalties for premature with- drawals from term savings accounts, in order to determine a person’s taxable income. The rules for computing ADJUSTED GROSS INCOME for federal IN C OME TAX may differ from the rules in a state that imposes a state income tax. ADJUSTER A person appointed or employed to settle or arrange matters that are in dispute; one who determines the amount to be paid on a claim. An insurance adjuster determines the extent of the insurance company’s LIABILITY when a claim is submitted. A public adjuster is a self- employed person who is hired by litigants to determine or SETTLE the amount of a claim or debt. ADJUSTMENT SECURITIES Stocks and bonds of a new corporation that are issued to stockholders during a corporate reorga- nization in exchange for stock held in the original corporation before it wa s reorganized. ADMINISTER To give an oath, as to administer the oath of office to the president at the inauguration. To direct the transactions of business or government. Immigra- tion laws are administered largely by the Immigration and Naturalization Service. To take care of affairs, as an executor administers the estate of a deceased person. To directly cause the ingestion of medications or poisons. To apply a court decree, enforce its provisions, or resolve disputes concerning its meaning. School teachers generally are not authorized to administer medicines that pupils take to school, for example. When divorced parents cannot agree on how to administer a visitation provision in a judgment granting CHILD CUSTODY to one of them, they might have to return to court for clarification from the judge. ADMINISTRATION The performance of executive duties in an institution or business. The Small Business Administration is responsible for administration of some disaster-relief loans. In government, the practical management and direction of some department or agency in the executive branch; in general, the entire class of public officials and employees managing the executive department. The management and distribution of the estate of a decedent performed under the supervision of the surrogate’s or probate court by a person duly qualified and legally appointed. If the decedent made a valid will designating someone called an executor to handle this function, the court will issue that person letters testamentary as authority to do so. If a person dies intestate or did not name an executor in his or her will, the court will appoint an administrator and grant him or her letters of administration to perform the duties of administration. An executor or administrator must carry out the responsibilities of administration, in- cluding collection and preservation of the decedent’s assets; payment of debts and claims against the estate; payment of estate tax; and distribution of the balance of the estate to the decedent’s heirs. ADMINISTRATION, OFFICE OF The OFFICE OF ADMINISTRATION was established within the Executive Office of the President (EOP) by REORGANIZATION PLAN 1 of 1977 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 102 ADJURATION (implemented by EXECUTIVE ORDER 12,028, 42 Fed. Reg. 62, 895 [1977 ], issued on December 12, 1977, by President JIMMY CARTER). The office was created to help centralize the activities of all EOP offices into a single agency. The director of the Office of Administration, who is appointed by, and reports directly to, the president, is responsible for, according to Executive Order 12,028, “ensuring that the Office of Adminis- tration provides units within the Executive Office of the President common administrative support and services.” The Office of Administration provides ad- ministrative support services to all EOP offices in the White House, including services that are in direct support of the president. The services provided by the Office of Administration include personnel management; financial management; data processing; and office operations, including the handling of mail (except for presidential mail), messenger service, printing and duplica- tion, graphics, word processing, procurement, and supply. The office also oversees three libraries (not open to the general public): a general reference library in the New Executive Office Building, and a reference library and a law library in the Old Executive Office Building. The Office of Administration consists of nearly two hundred full- and part-time employ- ees who maintain accounts for all EOP offices; recruit employees (except for those who will staff the Office of Policy Development and the White Hous e, all of whom are political appointees); and maintain official records, including those of the White House. In addition to the director and an assistant director, the office is managed by three deputy assistant directors, who provide supervision in the areas of general services, information management, and resources management. The Office of Administration also manages the Preservation Office, which has initiated and overseen several restoration projects, such as the award-winning restoration of the slate and cast iron roo f and the restorati on o f the three Department libraries o riginally occupying the Eisenhower Executive Office Building that cur- rently houses the Office of Administration. In all the projects that are completed, the work is monitored to ensure consistency with preservation criteria. I n 1988 Congress e nacted legislation t o allow the Office of Administration to accept gifts and loans for preservation activities so as t o shift the expense to public and p rivate partnerships. FURTHER READING Administration Office Website. Available online at www. whitehouse.gov/oa (accessed September 22, 2009). CROSS REFERENCE President of the United States. ADMINISTRATIVE ACTS Whatever actions are necessary to carry out the intent of statutes; those acts required by legislative policy as it is expressed in laws enacted by the legislature. If a city commission votes to create the position of park superintendent, that is a legislative act that can take effect only if the Office of Administration General Counsel Director's Office Security Customer Service Bureau Equal Employment Opportunity Financial Management Human Resources Management Facilities Management General Services Information Systems and Technology Library and Research Services Operations and Legislative Liaison ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ADMINISTRATIVE ACTS 103 commission follows all the steps required for formal legislation. When the same commi ssion votes to rezone a parcel of real property from single-family residential to business uses, how- ever, that is an administrative act that does not require the same formality as legislation. It is administrative because it is carrying out the zoning laws already in effect. ADMINISTRATIVE ADJUDICATION The process by which an administrative agency issues an order, such order being affirmative, negative, injunctive, or de claratory in form. Most formal proceedings before an admin- istrative agency follow the process of either rule making or adjudication. Rule making formu- lates policy by setting rules for the future conduct of persons governed by that agency. Adjudication applies the agency’s policy to the past actions of a particular party, and it results in an order for or against that party. Both methods are strictly regulated by the law of administrative procedure. CROSS REFERENCES Administrative Law and Proce dure. ADMINISTRATIVE AGENCY An official governmental body empowered with the authority to direct and supervise the imple- mentation of particular legislative acts. In addi- tion to agency, such governmental bodies may be called commissions, corporations (e.g., Federal Deposit Insu rance Corporation), boards, de part- ments, or divisions. 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. 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 “necessary- and-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.” With this language, many have argued that the Framers of the Constitution expected, indeed encouraged, the creation of powerful administrative agencies. This argument pre- vailed, 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 sub- stance of an admi nistrative age ncy’s power s 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. Administrative agency rules and regulations often have the force of law against individuals. 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). In response, suppor- ters of admi nistrative agencies note that agen- cies are create d and overseen by elected officials or the president. 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. Thus, by PROXY, agencies are the will of the electorate. Supporters of administrative agencies note also that agencies are able to adjudicate relatively minor or exceedingly complex dis- putes more quickly or more flexibly than can state and federal courts, which helps preserve judicial resources and promotes swift resolu- tions. Opponents argue that swiftness and ease at the expense of fairness are no virtues, but while the debate continues, administrative agencies thrive. Governmental representation in an admin- istrative capacity of any kind can be considered administrative agency. The president is an administrative agent whose enabling statute is the federal Const itution. The 13 executive departments reporting to the president are administrative agencies. For example, the DE- PARTMENT OF JUSTICE is a cabinet-level executive department, but it functions as the administra- tive agency that addresses the legal concerns of the U.S. government and its people. The departments housed within the Department of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 104 ADMINISTRATIVE ADJUDICATION Justice, such as the DRUG ENFORCEMENT ADMINIS- TRATION and the FEDERAL BUREAU OF INVESTIGATION, are also administrative agencies, and they have procedures and rules of their own. An administrative agency that falls under the direction of the EXECUTIVE BRANCH is referred to as an executive agency. 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 pre- cludes the president from removing the head of the agency without cause. By contrast, a head of an executive agency generally serves at the pleasure of the president. The U.S. Supreme Court on several occasions has considered whether independent agencies are constitutional. In 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. Roosevelt purported to remove FTC Commissioner William E. Humphrey, who had been no minated by President HERBERT C. HOOVER to a seven-year term in 1931, in order to replace Humphrey with an individual of Roosevelt’s own selection. The Court held that because Humphrey was not an executive officer, the president could not remove him from office except for the causes set forth in the statute. Many of the administrativ e agencies that affect everyday activities are independent agen- cies. Among the numerous examples of inde- pendent agencies are the CENTRAL INTELLIGENCE AGENCY , ENVIRONMENTAL PROTECTION AGENCY, the NATIONAL LABOR RELATIONS BOARD, and the SECURI- TIES AND EXCHANGE COMMISSION . Because the president is generally able to appoint the chairs or fill vacancies within these agencies, the president is often able to influence their acti- vities, notw ithstanding the limitation on the removal of the heads of the agencies. Administrative agencies are made up of experts in the field in which the agency operates. For example, the Maritime Adminis- tration employs experts in the areas of sea commerce and navigation to set its rules on merchant marine activities. 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. Given the specialized knowledge within admin- istrative agencies, administrative law judges (ALJs), who hear agency claims and disputes, are loath to overturn the legal conclusions reached by administrative boards. Determina- tions 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. 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. 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 The National Recovery Administration was created in the 1930s to ensure fair market competition. It was one of numerous agencies created by Congress during the Great Depression in an effort to regulate the production and marketing of goods. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ADMINISTRATIVE AGENCY 105 broad discretion in determining their rules and procedures. 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 statu tes to guide their own courts. History of Administrative Agency The first administrative agency was created by Congress in 1789 to provide pensions for wounded Revolutionary War soldiers. Also in the late 1700s, agencies were created to deter- mine the amount of duties charged on imported goods, but it was not until 1887 that the first permanent administrative agency was created. The INTERSTATE COMMERCE COMMISSION (ICC), created by the INTERSTATE COMMERCE ACT (49 U.S.C.A. § 10101 et seq. [1995]), was enacted by Congress to regulate commerce among the states, especially the interstate transportation of persons or property by carriers. The ICC was designed to ensure that carriers involved in interstate commerce provided the public with fair and reasonable rates and services. To buttress the Interstate Commerce Act, the Federal Reserve System was established by the Federal Reserve Act of 1913 (12 U.S.C.A. § 221) to serve as the United States’ central bank and execute U.S. monetary policy. One year later, the Federal Trade Commission was established by Congress to promote free and fair competi- tion in interstate commerce by preventing unfair methods of competition. In 1908 the Federal Bureau of Investigation (FBI) was established to investigate violations of federal laws not assigned to other federal agencies. The FBI is charged with solving crimes such as KIDNAPPING, ESPIONAGE, SABOTAGE, bank ROBBERY, extortion, interstate transportation of stolen property, CIVIL RIGHTS violations, inter- state gambling violations, FRAUD against the government, and the ASSAULT or killing of a federal officer or the president. As an agency concerned with criminal apprehension, the FBI is considered an arm of the government, and its directorship is subject to presidential approval. However, the FBI carries out its investigations independent of political influence. It can, for example, probe the actions of presidents and legislators, the very persons responsible for its existence. Administrative agencies are usually created in response to a felt public need. Some older agencies, for example, were created after the Civil War to address economic matters critical to the United States’ expanding government. After the STOCK MARKET crash of October 1929, and during the Great Depression of the 1930s, Congress created numerous agencies in an effort to regulate the production and marketing of goods. Agencies such as the SOCIAL SECURITY Administration (created by the SOCIAL SECURITY ACT OF 1935 [42 U.S.C.A. § 301 et seq.]), the Federal Savings and Loan Insurance Corpora- tion (established by a 1933 amendment to the Federal Reserve Act, 12 U.S.C.A. § 264, and now codified at 12 U.S.C.A. §§ 1811–1831) helped provide financial security for many Americans. The National Industrial Recovery Act (NIRA) (15 15 U.S.C.A. §§ 701 et seq., 40 U.S.C.A. § 401 et seq.) created the NATIONAL RECOVERY ADMINISTRATION to ensure fair market competi- tion. However, the NIRA gave the president limitless authority to impose sanctions, and it was declared invalid by the Supreme Court in the “Sick Chicken” case, SCHECHTER POULTRY CORP . V. UNITED STATES, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935). The National Labor Relations Board (created by the National Labor Relations Act of 1935 [29 U.S.C.A. § 151 et seq.], later amended by acts of 1947 and 1959) also helped to ease the devastating effects of the depression, by protecting employees’ rights to organize, preventing unfair labor practices, and promoting COLLECTIVE BARGAINING between employers and labor unions. Congress installed the Federal Radio Com- mission (FRC) in 1927 after entrepreneurs discovered the commercial potential of radio airwaves. In 1934 the FRC was merged into the FEDERAL COMMUNICATIONS COMMISSION (FCC), which was created by the Communications Act of 1934 (47 U.S.C.A. § 151 et seq.) to tackle the myriad issues presented by the sudden widespread use of radio waves. In the wake of television’s popularity, the Com- munications Satellite Act of 1962 (47 U.S.C.A. §§ 701–744) was enacted by Congress to broaden the FCC’s powers to include re- gulation of television broadcasting; telephone, telegraph, and cable television operation; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 106 ADMINISTRATIVE AGENCY two-way radio and radio operation; and satellite communication. When the United States entered WORLD WAR II, more agencies were created or enlarged to mobilize human resources and production and to administer price controls and rationing. The social upheaval of the 1960s spawned agencies designed to improve urban areas, provide opportunities for people who were historically disadvantaged and marginalized, and promote artistic endeavors. In the 1970s, 1980s, and 1990s, pressing issues such as human and environmental health were addressed through the creation of agencies such as the ENVIRON- MENTAL PROTECTION AGENCY and a new, enlarged DEPARTMENT OF ENERGY. Federal Administrative Agencies On the federal level, business and individual matters are addressed by such agencies as the FARM CREDIT ADMINISTRATION, SMALL BUSINESS ADMIN- ISTRATION , COMMODITY FUTURES TRADING COMMISSION, FEDERAL TRADE COMMISSION, FEDERAL DEPOSIT INSUR- ANCE CORPORATION , OFFICE OF THRIFT SUPERVISION, INTERNAL REVENUE SERVICE, DEPARTMENT OF COM- MERCE , INTERSTATE COMMERCE COMMISSION,and SECURITIES AND EXCHANGE COMMISSION. Governmental money matters are overseen and assisted by the GENERAL A CC OUNTING OFFICE, OFFICE OF MANAG EMENT AND BUDGET, O ffice of the Comptroller of the Currency, TREASURY DEPARTMENT, GENERAL SERVICE S ADMINISTRATION , C ONGRES SIONAL BUDGET OFFICE ,andFEDERAL RESERVE BOARD. Public services are handled by administra- tive agencies that include the DEPARTMENT OF EDUCATION , DEPARTMENT OF TRANSPORTATION, En- vironmental Protection Agency, FOOD AND DRUG ADMINISTRATION , DEPARTMENT OF HEALTH AND HU- MAN SERVICES , DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT , DEPARTMENT OF INTERIOR, IMMIGRA- TION and NATURALIZATION service, and National Highway Traffic Safety Administration. Work-related administrative agencies in- clude 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 OPPOR- TUNITY COMMISSION , and Office of Personnel Management. Police and military functions are served by the Central Intelligence Agency, DEPARTMENT OF DEFENSE , Department of Justice, Department of Veterans Affairs, Federal Bureau of Investiga- tion, 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. 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 com- merce 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 HOME- LAND 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. State and Local Administrative Agencies State and local administrative age ncies often mirror federal agencies. Thus, the individual states have agencies that control transportation, public health, public assistance, education, natu- ral resources, labor, law enforcement, agricul- ture, commerce, and revenue. 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. In the spirit of administrative agency, state and local governments also create agencies that help address compelling, peculiarly local concerns. 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. By contrast, courts must remain impartial to the two parties before them. A PAROLE board, for example, holds informal hearings durin g which prisoners are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADMINISTRATIVE AGENCY 107 . Executive Office of the President (EOP) by REORGANIZATION PLAN 1 of 19 77 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 10 2 ADJURATION (implemented by EXECUTIVE ORDER 12 ,028, 42 Fed. Reg. 62, 895 [19 77. auxiliary part. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADJUNCTION 10 1 Under the CIVIL LAW system that prevails in much of Europe and Latin America, adjunction is the permanent union of a thing. now codified at 12 U.S.C.A. §§ 18 11 18 31) helped provide financial security for many Americans. The National Industrial Recovery Act (NIRA) (15 15 U.S.C.A. §§ 7 01 et seq., 40 U.S.C.A. § 4 01 et seq.)