WELCOME TO UNIT 3
ADMINISTATIVE LAW
ANN SANOK
Congress creates, bestows, delegates
• Through enabling
legislation, Congress
defines an agency’s
mandate, how the agency
is to satisfy its mandate,
how the agency is to be
structured (including how
its leaders will be
appointed), and what
authority the agency
possesses.
What can the agency do?
• This depends on what Congress allows it to do via the
enabling statute. Most authority is executive authority
(oversight/planning), but Congress may also delegate
some legislative (rule making) or judicial authority
(judgment/penalty authority)
Agency can makes rules
• When Congress delegates its authority to make
laws to an agency, the agency is receiving
quasi-legislative authority. Agency-created laws
are not known as statutes, as are the laws
created by Congress. Instead, they are referred
to as rules or regulations.
• QUIZ ALERT! – agency rules are not referred to
as quasi statutes.
Wait a minute!!!
• Doesn’t the Constitution gives all legislative
authority of the federal government to
Congress?
Yes….but…
• While the Constitution does not
contain any language regarding
the creation of agencies or
delegation of power, the Supreme
Court has allowed delegation of
legislative authority since the
nation’s founding.
• This was especially true during
the Great Depression via the
programs of the New Deal.
One example: WPA
• The Works Progress Administration was created on May 6, 1935
with the signing of U.S. Presidential Executive Order 7034.
• It was the largest and most comprehensive New Deal agency and
was in essence a "make work" program that provided jobs and
income to the unemployed during the Great Depression. WPA
projects primarily employed unskilled blue-collar workers in
construction projects across the nation.
• The WPA built 650,000 miles of roads, 78,000
bridges, 125,000 buildings, and seven hundred miles
of airport runways. It presented 225,000 concerts to
audiences totaling 150 million, and produced almost
475,000 works of art. Even today, almost sixty years
after it ceased to exist, there is no part of America
that does not bear some mark of the WPA.
Constraints on power
•
•
The Supreme Court set
parameters on how much or
what kind of power could be
delegated to administrative
agencies, via two so called
“delegation” cases: Shechter
Poultry and Panama Refining. In
these cases the court struck
down agency actions under the
nondelegation doctrine on
grounds that there was an
improper delegation of
authority.
Quiz alert! This doctrine is no
longer frequently used as a
basis to strike a Congressional
delegation of power.
Political maneuvering…
After the Supreme Court began to
strike down his New Deal
legislations and struck down
Congress’ authority to delegate
in Schechter and Panamanian
Refining, President Roosevelt
tried to change the manner of
Supreme Court appointments
This was called The "Court
Packing Plan" - a proposal to
have a new appointment for
every justice over the age of 70.
The idea did not succeed.
Quiz alert: read the story on page
101 of Chapter 5!
Come on and do the delegation….
• The process by which Congress gives an
administrative agency authority to carry
out its mandate is called delegation.
President can’t do the Congress’s
job
• One reason these early cases were struck
down was because Congress had wrongly
delegated legislative authority to the
president.
• A delegation of authority is constitutional if
Congress establishes the nation’s fundamental
legislative policy and leaves only “gap” filling to
the agency. Congress must provide sufficient
standards to an agency to guide it in the
administration of the power.
• Quiz Alert! This is referred to as the
“intelligible principle”.
Good delegation
• Arizona vs. California –
delegation upheld.
•
Here the US Secretary of interior
was delegated authority over
apportionment of water from the
Colorado River. Delegation was
upheld because the statute
detailed what the Secretary was to
consider when deciding priority for
water use: river regulation; flood
control; irrigation; domestic water
use and power production needs.
•
•
The Colorado River is a 2,330-kilometer
(1,450-mile) river with its headwaters in the
Rocky Mountain National Park in northcentral Colorado. The river is the primary
source of water for a region that receives
little annual rainfall.
Passing the buck…
• While the legislative branch creates the
agency Most agencies fall under the
supervision or authority of the Executive
branch – i.e. the President.
Delegating Judicial Authority
•
Article III vests judicial power in
the Supreme Court and inferior
courts created by Congress. All
federal judges appointed under
Article III are appointed by the
President and approved by the
Senate.
•
Why: claims against government
are “public rights” not covered
under Article III. (See page 108 of
Chapter 5)
• 1932 – Congress
delegated authority to
hear federal workers’
compensation cases to
administrative judges.
USA Inc.
Whose government is this?
• Delegation of authority to private agencies is becoming
more and more common.: school administration; toll
roads; collection of child support; running of juvenile
detention centers and prisons; military duties.
• What do you think are some of the pros and cons of this
policy?
Here comes the judge. I mean
magistrate
• Other delegation exist in the context of federal
magistrates. Magistrate positions were created
pursuant to statute to relieve the work load of
District Court judges.
• This “program” falls under the authority of the
Judicial Branch. Thus, all decisions made by
magistrates may be viewed de novo by district
judges; magistrates may be removed by Article
III judges; and magistrates may not receive a
reduction in pay during their appointment.
FINAL PROJECT BEGINS!
•
SOME BACKGROUND..
• Cell Phone Education Regulation Act (CPERA)
↓
• In CPERA, Congress provided for the establishment of
the Cellular Educational Service (CES), an agency to
oversee the creation and enforcement of the necessary
rules and regulations to meet the objectives of CPERA.
The agency made some rules..
• CES unilaterally enacted
a series of rules and
regulations that required
all students to undergo a
search of their clothes,
backpacks, lockers, and
desks each morning. The
rules also permitted
random searches to take
place.
GIRLS TALK….
• A hidden provision in the
regulation allowed for
enforcement officials to
target their investigations
more towards female
students than male
students, since studies
had shown that females
talk on cellular phones
more often than males.
Mom…I think I’m in trouble..
•
•
•
•
•
Penalties for violating CES rules
and regulations include the
following:
for a first offense, no hearing is
held and the student receives a
written warning;
for a second offense, a hearing
conducted by school officials is
held and an automatic suspension
is handed down;
for a third offense, a full hearing is
held by a board for the CES, after
which a guilty finding results in
expulsion, arrest, and incarceration
for 30 days.
School officials are also permitted,
under the regulations, to
permanently keep any cellular
phones they confiscate.
Don’t mess with my kid…
•
Ted McKinley, is irate because
his daughter, Martha, was
reported for committing a third
offense of the rules and
regulations but was not given
notice of her infraction or an
opportunity to appear and
defend herself against the
charges.
• Martha was immediately
expelled from school, arrested,
and incarcerated. Her cellular
phone was taken and not
returned to her or her parents.
What’s the problem?
• Ted wishes to challenge in court the agency’s decision as well as
ascertain what remedies he has against the government and school
officials for their conduct.
• Your final research project will require you to prepare a
memorandum of law to your supervising attorney outlining the
issues and law associated with the parents’ and Martha’s claims. In
addition, you will be asked to prepare a Motion for a Protective
Order to prevent enforcement of the board’s determination pending
the outcome of the appeal.
Where to start?
…
• Research the cases! Try Lexis Nexus, Google, etc
•
Legal cases have been filed against CES for allegedly violating a student's right to
due process. In certain cases, CES administered punishment without proper
notification of the rules, policies and laws students violated, and as a result,
enforcement actions were in direct conflict with laws governing an individual's rights.
Furthermore, the courts ruled that students' rights were also violated when they were
denied representation at hearings. Students are under adult legal age and can't
represent themselves at judicial proceedings. The courts also found that Congress
went beyond its authority when it gave CES the power to handle judicial matters.
Courts ruled that student searches are unconstitutional without reasonable doubt and
student permission, and because cell phones are property, government can't legally
confiscate them.
Due at the end of Unit 3:
•
For this week's Final Writing Project
assignment, you will submit a list of
the major points you intend to discuss
and the major sources you intend to
use as references in your final paper.
Include a list of major Constitutional
issues and any assumptions you
intend to incorporate into the facts
when making your analysis.
• Example: search and seizure
issue; due process; rights of
minors etc.
• This assignment is due by next
Tuesday night. Submit via drop
box
• One to two pages is sufficient.
!!!!WARNING !!!!
• DO NOT PLAGERIZE
• YOU MIGHT FIND
OLD KAPLAN
PAPERS ON THIS
ASSIGNMENT ON
THE WEB – DON’T
COPY THOSE!