WELCOME TO UNIT 3 ADMINISTATIVE LAW

1. WELCOME TO UNIT 3 ADMINISTATIVE LAW ANN SANOK

2. 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. Congress creates, bestows, delegates

3. 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)

4. 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.

5. Wait a minute!!! • Doesn’t the Constitution gives all legislative authority of the federal government to Congress?

6. 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. Yes….but…

7. 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.

8. 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.

9. 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. Constraints on power

10. 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 Chapter5! Political maneuvering…

11. Come on and do the delegation…. • The process by which Congress gives an administrative agency authority to carry out its mandate is called delegation.

12. 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.

13. 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”.

14. 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 north-central Colorado. The river is the primary source of water for a region that receives little annual rainfall. Good delegation

15. 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.

16. 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. Delegating Judicial Authority

17. 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?

18. 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.

19. 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.

20. 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. The agency made some rules..

21. 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. GIRLS TALK….

22. 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. Mom…I think I’m in trouble..

23. 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. Don’t mess with my kid…

24. 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.

25. 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.

26. 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. Due at the end of Unit 3:

27. DO NOT PLAGERIZE YOU MIGHT FIND OLD KAPLAN PAPERS ON THIS ASSIGNMENT ON THE WEB – DON’T COPY THOSE! !!!!WARNING !!!!