Instructor’s Manual For Administrative Law Bureaucracy in a Democracy 7th Edition by digitaldownload87

Contents To the Instructor

Syllabi

Chapter 1: Introduction

Chapter 2: Bureaucracy and Democracy

Chapter 3: Agency Discretion

Chapter 4: The Requirements of Fairness

Chapter 5: Delegation

Chapter 6: Agency Rulemaking

Chapter 7: Agency Information Collections and Investigations

Chapter 8: Formal Adjudications

Chapter 9: Accountability Through Reviewability

Chapter 10: Accountability Through Accessibility

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Chapter 11: Accountability Through Liability

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Chapter 1 Introduction CHAPTER OVERVIEW Chapter 1 provides an introduction to administrative law. Administrative regulation is omnipresent in American life. The high level of regulation is likely the result of many factors, such as technological complexity, increases in population, and an increased interdependence of the members of the American family. As a field of law, administrative law is concerned with defining the duties and powers of administrative agencies. More important, administrative law also defines the limits of agency powers. Most agency structure and authority are defined by statute or executive order. Limitations on agency authority can be found in statutes, executive orders, and, most prominently, the Constitution. CHAPTER OBJECTIVES After completing this chapter, the student should be able to • Define what administrative law is and isn’t. • Identify and distinguish the sources of administrative law in the United States. • Describe the nature and complexity of the administrative state at the federal, state, and local levels. • Describe the various forms of agencies. • Explain why the administrative state is larger today than at the time of the adoption of the U.S. Constitution, and identify at least two ways administrative law impacts your life. LECTURE OUTLINE 1.1

ADMINISTRATIVE LAW DEFINED • Body of law developed to control and administer agency’s behavior and function • Administrative law defines agency’s o Powers o Limitations o Procedures

1.2

SOURCES OF ADMINISTRATIVE LAW 1.2(a) Constitution • Significant source of law in the administrative context, including; o Separation of powers o Federalism o Article I (powers of the National government o Article I (interstate commerce) o Fifth Amendment due process o Fourteenth Amendment equal protection 1.2(b) Enabling Laws • Statute that establishes an agency o Sets forth responsibilities o Sets forth authority 1.2(c) Administrative Procedures Act • Federal 12

o Passed in 1946 o Comprehensive but preempted by enabling statute • State (uniform state APA) o Approved in 1946 by; • National Conference on Uniform State Laws • American Bar Association o Amended twice (1961 and 1981) o Adopted by 30 states and the District of Columbia (as of 2/2005) o 20 states have adopted another form of administrative procedures law 1.2(d) Executive Orders • An executive order has the effect of a statute • Sources of authority for president to issue an executive order; o Article II (inherent authority to regulate as chief executive) o Authorization of Congress • Executive orders are generally preempted by statutes o Exception – if Congress has specifically delegated authority to act to the president • Executive orders are published in the Federal Register 1.3

ADMINISTRATIVE AGENCIES • May be called: o Departments o Commissions o Bureaus o Councils o Groups o Services o Divisions o Agencies o Administrations o Boards See Government of the United States chart; Figure 1-1 1.3(a) The Need for Agencies • Job of government has become too large for Congress, the courts and the executive branch to handle • Agency expertise is necessary 1.3(b) Types of Agencies • Three major types • Social welfare o Promoting the general welfare of the people o Redistributes funds • Regulatory o Proscribes behavior o Determines legal compliance o Licensing 13

o Ratemaking o Prosecuting violators • Public service o Provides services to the public • Other characterizations • Executive o Organ of the executive branch • Independent o Not controlled by the president 1.3(c) The History and Size of the Bureaucracy • Administrative agencies have existed since our nation began o Certain agencies were established by the first Congress ▪ Treasury ▪ Department of War ▪ Foreign Affairs ▪ Patients ▪ Post Office o Era between the great Depression and World War II was a boom period for administrative agencies • In 1800 o There were 3,000 federal government employees o This represented approximately .0005% of total population • In 1995 o Nearly 3,000,000 federal government employees o This represented approximately 1% of total population • Mid-1990s, number of employees swelled to 17 million 1.3(d) The Impact of Agencies on Daily Life • Large number of agencies results in large number of service and regulations 1.4

CONCLUSION

LIST OF CHANGES/TRANSITION GUIDE The text and image on page 4 to President Trump’s proclamation of January 16, 2018, as “Religious Freedom Day” are new to this edition. The reference on page 8 to the National Defense Authorization Act of 2018 is also new for this edition. The following learning objectives are new to this edition and revised from the previous edition: • Describe the various forms of agencies. • Explain why the administrative state is larger today than at the time of the adoption of the U.S. Constitution, and identify at least two ways administrative law impacts your life. ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES For a possible in-class class activity, consider holding a mock congressional debate on the creation of a new federal agency. A mock congressional committee hearing could be held with students acting as members of the congressional committee and individuals who testify before the committee. For example, students could debate the creation of the Transportation Security Agency which was created to strengthen the security of the nation’s transportation systems and ensure the freedom of movement for people and commerce. Students could also have a mock congressional debate on a proposal for the creation of a new federal agency to respond to a public policy issue. SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Review Questions 1. Administrative Procedure Act 2. The APA defines the procedures that agencies must use in the performance of their functions. 3. The federal APA only applies to federal agencies. 4. A social welfare agency is responsible for promoting the general welfare of the people. They often provide services or monetary distributions to those who qualify for assistance. A regulatory agency is responsible for establishing rules and regulations thereby proscribing and requiring particular behavior, determining compliance with the law and prosecuting and sometimes punishing violators regarding people and businesses under their proscribed authority. A public service agency provides services to the public without regulation or redistribution of money. 5. Three sources of administrative law include: U.S. and state constitutions, federal and state enabling legislation and presidential executive orders. 6. Student answers will vary. Critical Thinking and Applications Problems 15

1. Although the public should certainly benefit from the work of this agency, the BDP would be considered a regulatory agency. It is clearly within the purview of a regulatory agency to oversee the enforcement of deer hunting laws and to prosecute and punish those who violate the laws. 2. Following the stated amendment, the BDP would serve a dual function as both a regulatory and social welfare agency. The BDP’s regulatory powers have been expanded to include the establishment of regulations regarding the setting of hunting seasons, licensing application windows and the establishment of kill limits. By adding the responsibility to redistribute revenues to qualified indigent persons, and the authority to waive fees for those who cannot pay the licensing fee and the authority to waive kill limits for those hunting for food, the BDP has taken on the additional responsibility of a social welfare agency. 3. Discussion problem. Students should elaborate and opine about two of the following factors mentioned in the text: increasing interdependence for goods and services, increasing population, decreasing personal relationships with those with whom we are dependent, technological developments, complexity of life, and changing expectations concerning the provision of services by government. Student answers will vary.

Chapter 2 Bureaucracy and Democracy CHAPTER OVERVIEW Chapter 2 discusses democracy. The key concepts of democracy, federalism, separation of powers, and bureaucracy are defined and analyzed. Federalism is defined as the division of governmental power between the federal government and state governments. The President, Congress, and courts exercise control of agencies. Some of the key powers of the President to control agencies include being the head of agencies, recommending to Congress agency reorganization, establishing policy, and appointing agency heads. The powers of Congress to control agencies include create and reverse agency-created rules, create and abolish agencies, establishing the budget, and calling agency heads to testify before Congressional committees. CHAPTER OBJECTIVES After completing this chapter, the student should be able to • Define and distinguish a democracy from a constitutional republic. • Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority and explain how administrative agencies pose a challenge to this model. • List and describe the various ways that the president, Congress, and the courts control bureaucracy. • Brief a case using the format suggested in the chapter. • Become familiar with the basic architecture and style of judicial opinions. LECTURE OUTLINE 2.1

DEMOCRACY AND CONSTITUTIONAL REPUBLICANISM DEFINED 2.1(a) Democracy Defined • Democracy is a form of direct popular government o Roman origin • In a republic, people elect representatives that make the law • U.S. is a constitutional republic o Most laws are made by elected representatives o Popular direct referenda are utilized for law and policy in certain jurisdictions and under certain circumstances • First written U.S. Constitution was the “Articles of Confederation and Perpetual Union” o Adopted in 1781 o Formed a “firm league of friendship” • Current Constitution o Drafted in 1787 o Ratified in 1789 17

o Balanced government and individual powers 2.2

CONSTITUTIONAL STRUCTURES THAT CONTROL AUTHORITY 2.2(a) Federalism • Federalism is the division of governmental power between the federal government and state governments. • Dual federalism: A federal system of government where both the federal and state governments are sovereign with different, and occasionally concurrent, jurisdictions • Police power: The authority of government to regulate for the public welfare. In the United States, the police power generally is held by state governments • Hierarchical federalism: A federal system that recognizes both federal and state governments, but where state authority is limited to those authorities not exercised by the federal government or reserved to the people 2.2(b) Separation of Powers • Horizontal division of power between the executive, legislative and judicial branches of government • Doctrines of federalism and separation of powers prevent centralization of power in one person or branch of government o Checks and balances

2.3

PRESIDENTIAL, CONGRESSIONAL, AND JUDICIAL CONTROLS OF THE BUREAUCRACY • Generally, the Constitution does not address federal agencies 2.3(a) Bureaucracy Defined • Max Weber – “ a rational management system” o Advantages ▪ Division of labor ▪ Creation of specialists ▪ Rational, objective and purposeful rules ▪ Seniority and merit based promotion ▪ Hierarchy of officials within the system ▪ Strict discipline and control of public officials o Disadvantages ▪ Excessive empowerment ▪ Less oversight ▪ Less mobility between jobs ▪ Decreased workplace flexibility ▪ Increased red tape 2.3(b) Presidential Control • Congress creates, defines and funds agencies • The president enforces and administers the law o Common presidential complaint is their decreased control over domestic matters 18

▪

Independent agencies • Limit presidential influence • Are less susceptible to public accountability • Are not subject to traditional checks and balances o Presidents do exhibit some control ▪ Establishing some policy through executive orders ▪ Recommending reorganization and amendments to enabling laws ▪ Nominates agency heads • The president and Congress dispute the authority to remove federal officials o Congress clearly may remove federal officers (Article II, section 4 and Article I, sections 2 and 3) o The president is not authorized by the Constitution to remove federal officers but they have long asserted their right to do so ▪ Congress therefore has enacted legislation to limit the president’s right of removal o Morrison v. Olson allowed for a judicial board to appoint an independent counsel rejecting a separation of powers argument o Myers v. United States invalidated a statute requiring Senate approval to fire postmasters saying that the Congress may not interject itself into purely executive functions (affirmed in Bowsher v. Synar) o Humphrey’s Executor v. United States held that an FTC commissioner was not a purely executive official and the Congress could limit presidential power over such an official Clinton v. City of New York, 524 U.S. 417 (1998) Facts: Congress enacted the Line Item Veto Act in 1996 giving the president the power to cancel in whole any dollar amount of discretionary budgetary authority, any item of new direct spending and any limited tax benefit. President Clinton used this authority to cancel a provision of the Balanced Budget Act and two provisions of the Taxpayer Relief Act. The City of New York, claiming injury, brought suit. Issue: Did President Clinton’s cancellation of the named provisions act as an amendment of the two Acts by repealing portions of each? Is such an action within the powers of the presidency? Decision: Yes (regarding the amendment) No (regarding powers). “[R]epeal of statutes, no less than enactment, must conform with Art. I.” The president may accept an act of Congress by signing the act into law. If opposed to the act, the president may veto the act, but in doing so must return the act and Congress may overrule the veto. There are no provisions in the Constitution that allows a president to enact, amend or repeal statutes. The actions in this case amount to both an amendment and a partial repeal of a statute which exceeds presidential authority. The Line Item Veto Act was deemed unconstitutional and was invalidated. 2.3(c) Congressional Control • Congress, of the three branches, possesses the greatest ability to control the bureaucracy o Congress can ▪ Create agencies 19

▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪

Disband agencies Reorganize agencies Establish agency budgets Set agency objectives and rules Engage in agency oversight Approve agency officers Ratify agency heads Utilize legislative vetoes

INS v. Chadha, 462 U.S. 919 (1983) Facts: Chadha is East Indian, born in Kenya and holds a valid British passport. He was lawfully admitted to the U.S. in 1966 with a nonimmigrant student visa. He overstayed his visa and a deportation hearing was held in January, 1974. He admitted to being deportable and the hearing was suspended to allow the filing of a suspension of deportation. In June, 1974 his deportation was suspended pursuant to a resolution of the House of Representatives. Issue: Is a provision of the Immigration and Naturalization Act authorizing a single House of Congress, by resolution, the right to invalidate a decision of the Executive Branch, pursuant to authority granted by Congress to the Attorney General of the United States, constitutional? Decision: No. The court recognized that the Framers were “acutely conscious that the bicameral requirement and Presentment Clauses would serve essential constitutional functions.” They further distinguished the procedures to require strict adherence. Congress was designed to have both bodies agree on vetoes which did not happen in this situation. The single body veto provision was deemed unconstitutional and was severed from the Act. 2.3(d) Judicial Control • The courts are the final arbiter of Congressional mandates 2.4

CONCLUSION

LIST OF CHANGES/TRANSITION GUIDE This edition revises some of the objectives from the previous edition. Some of the numbering in the outline and section numbers have also changed. Passages from the following cases are also new in this edition: 907 Whitehead Street, Inc., d.b.a. Ernest Hemingway Home and Museum v. Secretary of the U.S. Department of Agriculture 11th Circuit Court of Appeals (2012), National Federation of Independent Business v. Sebelius, and Arizona v. Intertribal Council of Arizona. ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES For a possible in-class class activity, consider holding a mock oral argument for one of the U.S. Supreme Court cases discussed in the chapter. The audio for oral arguments from the U.S. Supreme Court are also available at http://www.oyez.org/ which could be used in class. Students 20

could present oral arguments before justices. The justices could then ask questions during the oral arguments. SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Review Questions 1.

An agency independent of the executive branch satisfies our founder’s vision of separation of powers. Since the president does not control the head of the agency, the agency can act with more autonomy and avoid political problems in the exercise of its functions.

It has been argued that a disadvantage of having an agency independent of the executive branch is that the agency’s autonomy can lead to a lack of public accountability. The executive branch is also severely limited in its ability to remove agency heads that are not performing properly.

Federalism is the concept of shared powers between the federal and state government.

Separation of powers is a protection inherent in the Constitution in which each branch of the government is designated certain powers and other branches of the government act as a check and balance to protect against any one branch or person in the government from becoming to powerful and dominating the other branches. One example is that the Congress makes the laws, however, the president must agree by signing the law. The president may veto a law the executive branch disagrees with. Once enacted, the courts are charged with reviewing the law to determine its constitutionality should a law suit ensue. The Congress is further empowered to override a presidential veto, should they deem it appropriate with a two-thirds vote.

The president exercises power over executive agencies by: • appointing, retaining and/or firing agency secretaries • recommending agency reorganizations and amendments to enabling laws to Congress • establishing policy through the issuance of executive orders • exercising authority as the direct head of executive agencies over their operation • recommending agency budgets

Congress exercises power over executive agencies by: • using their power to create, disband or reorganize agencies • controlling agency budgets • setting agency objectives and rules that govern agency operations • engaging in oversight through its committees • reviewing, reversing and/or amending agency decisions

Exclusive federal powers include the power to regulate: • The post office 21

• • • • •

Foreign diplomacy The making of treaties Naturalization Immigration and Emigration Bankruptcy

Exclusive state powers include the power to regulate: • General health and welfare of its citizens • Police protection • Fire protection • Licensing of most professions • Education

The federal and state governments share the power to regulate: • Taxation • The chartering of banks • The construction of roads • The borrowing of money • The punishment of crimes

10.

Contemporary administrative agencies pose a unique threat to freedom because the governmental bureaucracy has grown so enormous that it is not only difficult to control but even legitimate attempts at oversight are often so complex and time consuming that the president and Congress become overwhelmed. Many agencies have been enabled with multiple governmental responsibilities and therefore exercise executive, legislative and judicial functions in violation of our founder’s visions of separation of powers. Overlapping powers can create bureaucratic stagnation and the growth of independent agencies has raised numerous questions as to the extent of executive as well as legislative control. Frequently oversight is relinquished in favor of waiting for judicial review. Agencies challenge the separations of powers model because they perform the duties of all three branches of government, yet they fall into the executive branch. The challenge is to design a system where they remain accountable to the appropriate branch, but are not excessively hindered in getting the job done.

11.

Dual federalism is the name of a model where both the states and the federal government are co-sovereigns. Federal authority is limited and the Tenth Amendment specifically preserves state authority. Hierarchical federalism is a model that envisions a stronger federal government with expansive authority. The Tenth Amendment acts as a truism, that is, the state are left with the powers not legitimately claimed by the federal government.

Critical Thinking and Applications Problems 1.

Section One of this act, mandating nomination of commissioners by the president and confirmation by the Senate satisfies the appointment clause of Article II of the 22

Constitution and is therefore constitutional. Section Two of the enabling statute grants the committee quasi-executive, quasi-legislative and quasi-judicial functions thereby indicating that this is an independent rather than an executive agency. The Section One removal clause, requiring the proof of just cause, is therefore a constitutional limitation on the president’s authority to remove appointed commissioners. 2.

The congressional oversight provision is not constitutional. Section Three provisions of the statute delegating sole oversight authority to the House of Representatives contravenes our founder’s vision of how the separation of powers was to be exercised and violates the Presentment Clause and bicameral requirements of Article I of the Constitution. (See: INS v. Chadha)

Student answers will vary.

Chapter 3 Agency Discretion CHAPTER OVERVIEW Chapter 3 discusses agency discretion. A great majority of agency actions are informal. It is the exception, not the rule, in both rulemaking and adjudication, that formal procedures must be used. Agencies also perform many functions that fall outside the rulemaking and adjudication models. These acts are governed by the rules concerning informal procedures. However, because these actions constitute the bulk of administrative work, informal procedures are the “lifeblood of the administrative process.” Generally, informal actions are not governed by statute. Accordingly, agencies exercise significant discretion when performing these functions. An agency has discretion when it has the authority to choose between two or more options. Too much discretion can lead to arbitrariness. Courts generally defer to agencies in the interpretation of the statutes that govern them known as the Chevron Doctrine. CHAPTER OBJECTIVES After completing this chapter, the student should be able to • Explain why informal processes have been characterized as the lifeblood of the administrative process. • Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios. • Identify and describe three different forms of commonly exercised discretion by agency officials. • Demonstrate comfort and familiarity with the style and format of judicial opinions. • Brief a judicial opinion with little outside assistance. You should be successful in identifying the relevant facts. You should also be successful in identifying the legal issue and analyzing the court’s rationale in at least 33 percent of your briefs. LECTURE OUTLINE 3.1

INTRODUCTION • The majority of agency action is informal • Agencies perform many functions other than rulemaking and adjudication • Generally, informal actions are not governed by statute • In the absence of statutory authority, agencies exercise discretion o Too much exercise of discretion leads to arbitrariness o Too little use of discretion leads to inflexible public administration

3.2 DETRIMENTS AND BENEFITS OF DISCRETION •

Excessive and unchecked discretion can lead to arbitrary decision making 24

•

• • •

The framers protected individual rights through: o The federal Constitution o State Constitutions o Statutory law Discretion is difficult to control Detailed policies have successfully helped police departments reduce deaths from high speed chases and excessive force Excessive rules in the workplace has caused confusion and inconsistent enforcement

3.3

LIMITS ON AGENCY DISCRETION • Congress has created significant limitations on the discretion of agency officials and others where officials possess considerable discretion • Discretion may be either unfettered or hampered by only minimal constraints • Agency discretion subject to judicial review and political accountability

3.4

EXAMPLES OF AGENCY DISCRETION 3.4(a) Prosecutorial Discretion • Executive agencies perform law enforcement functions which can include prosecutorial functions • Prosecutorial discretion includes: o Deciding who to investigate o Deciding who to prosecute o Deciding whether to settle a case o Other related decisions • Factors related to prosecutorial discretion include: o The likelihood of discovering a violation o The seriousness of the possible violation o The expense of the investigation o The inconvenience of the investigation o The expense of enforcement of discovered violations o The inconvenience of enforcement of discovered violations o Likelihood of a trial victory • Prosecutorial discretion is limited by: o Constitutional restrictions ▪ Race ▪ Gender ▪ Religion ▪ Sex General Motors v. Federal Energy Regulatory Commission, 613 F.2d 939 (D.C. Cir. 1979) Facts: The Federal Energy Regulatory Commission dismissed, without a hearing, a claim by General Motors regarding their complaint against a natural gas curtailment plan filed with the Commission by the Natural Gas Pipeline Company of America. Issue: Did the Commission abuse its discretion in dismissing the complaint? 25

Decision: No. “In general, an agency’s decision to conduct or not conduct an investigation is committed to the agencies discretion.” If the court is satisfied that the agency considered all relevant factors, proving a true and fair exercise of discretion, the agency’s decision is not reviewable. In this case General Motors concedes that the Commission examined the elements of their complaint and found no injury to General Motors, attributable to the curtailment plan, which would justify the relief requested. Satisfied that this was a valid exercise of discretion, the court found no grounds to review the agency’s dismissal decision. 3.4(b) Rulemaking and Policy Discretion • Agencies are often empowered by Congress to promulgate regulations to further their mandate • An agency that exceeds its statutory mandate is said to act ultra vires • Ultra vires acts are either (or both): o Abuses of regulatory discretion o Unconstitutional acts • The Chevron Doctrine says that disagreement with an agency’s decision is no more a basis for a lawsuit than disagreement with a policy decision of Congress Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) Facts: Elian Gonzalez was born in Cuba. When he was six years old, Elian, his mother, and twelve other Cuban nationals left Cuba in a small boat attempting to come to America. The boat capsized and eleven people, including Elian’s mother died. Elian was rescued by fishermen and brought to a hospital in Miami. Elian’s great uncle, a Miami resident petitioned for asylum to allow Elian to remain in the United States. In all, three separate asylum requests were filed. Elian’s father, in Cuba, petitioned to have Elian returned to him in Cuba. Issue: Did the INS abuse its discretion by not adjudicating the asylum claims? Does Elian, a six year old minor, or a non-parental relative, have standing to file an asylum claim against the wishes of a parent? Decision: No as to both. The first examination must be the language used by Congress in the statute. This language, if applicable to the situation, will be controlling. Here, while the statute gives “any alien” the right to apply for asylum, it does not proscribe procedures or identify required contents of the asylum application. Congress’s failure to explicitly express asylum particulars leaves a gap to be filled in by the agency administering the statute, the INS. The INS has determined that a parent of an unaccompanied minor will have the controlling decision and the court accepts this policy decision as within the range of reasonable choices available to the INS. “…we cannot conclude that the policy’s stress on the parent-child relationship is unreasonable.” (The court did question whether the wishes of a parent outside of this country (also in a dictatorial state) should be given the same weight as decisions of a parent in the United States but never-the-less concluded that the INS policy was within its purview and therefore not reviewable.) 3.4(c) Claims and Applications Decisions • Processing claims and applications is an important function of many agencies 26

o Each agency has the right to determine its processing method o Discretion is limited by equal protection and due process 3.4(d) Protective Action • Certain agencies are charged with the protection of the health, safety and economic wellbeing of individuals and the public • Protective actions may include: o Recalls o Seizure of goods o Seizure of related items o Suspension of licenses o Ceases and desist orders o Actions for enforcement of civil penalties Brock v. Roadway Express, 481 U.S. 254 (1987) Facts: The Surface Transportation Assistance Act protects commercial motor transportation employees from discharge in retaliation for refusing to operate a motor vehicle that does not comply with applicable state and federal safety regulations. Roadway Express discharged Jerry Hufstetler alleging that he intentionally disabled lights on his truck so he could be paid for the time while awaiting repairs. Hufstetler filed a grievance claiming that he was fired in retaliation for prior safety violation complaints. Issue: When the dismissal occurred, were the predeprivation procedures, without an evidentiary hearing, adequate to protect both the employer’s and employee’s interests and not cause undue or irrevocable hardship? Decision: Yes. While the employer has a right to discharge an employee for just cause, the severity of depriving a person of their means of livelihood must also be recognized. The various interests of the employer, employee and the government must also be addressed. As long as the prereinstatement procedures establish a reliable initial check against erroneous decisions and a complete review is available, a prior evidentiary hearing is therefore not constitutionally required. 3.4(e) Tests and Inspections Generally • Agencies often establish testing and inspection requirements • The courts will review the validity and reliability of a test • The courts will not review: o Where tests are to be conducted o Whether a test is to be conducted o When a test is to be conducted • Fourth Amendment provisions limit an agency’s right to test regarding alcohol, drug and AIDS testing 3.4(f) Advisory Opinions and Declaratory Orders • Advisory opinions o Issued to help clarify particular issues regarding: ▪ Policy ▪ Practices ▪ Procedures 27

o Advisory opinions may or may not be binding, depending on agency policy and potential harm to the public • Declaratory orders o Administrative equivalents of judicial declaratory judgments o Resolves questions of law raised but not yet contested o APA limits declaratory orders to situations where a formal adjudication is required 3.4(g) Mediation and Arbitration • Mediation (aka conciliation) o Intervention with the goal of helping the parties to reach a decision o Mediators are go-betweens o Usually voluntary • Arbitration o Positions and arguments are submitted to a third party for a decision o Arbitrators are decision makers o May be voluntary or required by contract o May or may not be binding on the parties ▪ Binding decisions are not reviewable by the court except that arbitration itself may be reviewed as being appropriate to the situation • The Federal Mediation and Conciliation Service is an agency that mediates labor disputes o May arbitrate if both sides agree o Encourages arbitration to settle disputes 3.4(h) Other Action • The text is not and cannot be exhaustive with regard to describing all agencies that exercise discretion • Agencies must constantly deal with the dissemination of information 3.5

CONCLUSION

LIST OF CHANGES/TRANSITION GUIDE There are no major changes or revisions in Chapter 3 in the seventh edition. The language in the objective to “[i]dentify and describe three different forms of commonly exercised discretion by agency officials” has been from the previous object to “[i]dentify three different forms of commonly exercised discretion by agency officials.” The objective to “[d]efine advisory opinions and declaratory orders and explain how they are used in practice” has been removed but the chapter still discusses these concepts. ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES For a possible in-class class activity, consider having a class discussion on the Elian Gonzalez case and the decision in Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000). Considering running a search on YouTube for news coverage of Elian Gonzalez today and discuss the aftermath of the

case in light of current immigration policies. Consider also have a discussion about the travel ban executive order issued by President Donald Trump in 2018. SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Review Questions 1.

Rulemaking and adjudication require formal procedures, however, most agencies, in the course of their normal operation, perform functions that fall outside of the purview of rulemaking and adjudication so the agency, in order to function effectively, must be given discretionary authority to perform these other functions. It is literally impossible for the Congress to anticipate all of the rules and regulations which will be necessary for an agency to successfully function. Therefore, the right of an agency to informally promulgate necessary procedures, filling in gaps left by Congress in the enabling statute, is necessary for agency existence. Furthermore, attempts to formally apply strict procedures covering every possible scenario within an agency’s purview have continually proven to be confusing and counterproductive.

There are a number of reasons that agencies select cases to investigate and prosecute rather than investigating and prosecuting all cases including: • Lack of human recourses to properly conduct investigations and prosecutions • Expense and inconvenience of investigation • Expense and inconvenience of enforcing a law if a violation is uncovered by the investigation • The likelihood of success

An advisory opinion is a document issued by an agency, upon request, in which the agency interprets the applicable law and/or enumerates the agency’s policies, practices or procedures.

Declaratory orders are issued to terminate a controversy or remove uncertainty in a matter in which a formal adjudication is required. Their purpose is to resolve matters of law that have arisen but have not yet been contested.

Excessive and unchecked discretion can certainly lead to arbitrary decision making and an abuse of fairness. Although judicial review of discretionary agency decisions is limited, and there are few if any administrative procedures to protect individuals, constitutional rights of due process and equal protection remain as limitations on discretion and assurances of fundamental fairness. Public accountability is also an external check on discretionary abuse.

Rules alone cannot solve every problem. Promulgation of rules, designed to limit discretion, can prove effective in remedying particular problems. Excessive numbers of rules however, can lead to a paralysis in the attempt to monitor and comply with every rule that applies. As a result, individuals and business must sometimes pick and choose those rules that they will attempt to comply with. The agency charged with promulgating 29

and enforcing an excessive amount of rules can also be forced to exercise discretion in picking and choosing those rules they will enforce. In those areas in which there are very few specified rules, the agency’s discretion is magnified as they must fill in gaps necessary for the agency to function. Without specific direction, the agency must use discretion to make decisions in order to maintain effectiveness and fulfill its function. Under Chevron an agency’s interpretation of an ambiguous statute or its own rule is given substantial deference by reviewing courts, provided Congress intended for the agency to possess the authority to make rules. If such authority was not intended, then the agency’s interpretation is “entitled to respect” only if it is persuasive (Skidmore). An agency is much more likely to be upheld if the former if found to be the case. Critical Thinking and Application Problems 7.

Three reasons Philip Howard believes that discretion is necessary in public administration include, 1) discretion is necessary to ensure humanity in governance; 2) discretion cannot be eliminated because excessive rule making actually leads to a need for the exercise of discretion when an agency must decide which rules to enforce; and 3) rule makers cannot anticipate all eventual circumstances or developments and rules themselves cannot solve every problem so discretion must be used for unanticipated scenarios and dilemmas. Student answers will vary as they discuss opposing arguments and the proof needed to support their arguments contrary to Howard’s beliefs.

Student answers will vary. There were numerous examples of agency discretion discussed in this chapter including but not limited to: • The Occupational Health and Safety Administration deciding which of its thousands of rules to enforce • Prosecutorial discretion was discussed in relationship to Alaska and the Department of Justice • General Motors v. Federal Energy Regulatory Commission, discussed the Commission’s discretion to determine whether or not to conduct an investigation • The Food and Drug Administration having the discretionary right to choose available remedies for enforcement of their rules • Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. discussed an agency’s discretionary right to fill in gaps left by Congress in an enabling statute • The Consumer Product Safety Commission having the discretionary right to choose available remedies for enforcement of their rules

Chapter 4 The Requirement of Fairness CHAPTER OVERVIEW Chapter 4 discusses the requirement of fairness with respect to administrative agencies with specific attention to the requirements of due process and equal protection. Due Process includes both procedural due process and substantive due process. Procedural due process describes the minimum steps that must be taken by a government before it can deprive a person of life, liberty, or property. Substantive due process is concerned not with the procedures used to make a rule or adjudicate an individual case, but with the substance of a rule or adjudication. This chapter focuses on what constitutes life, liberty, and property. Chapter 4 also examines what level of protection is given for various forms of property, including government employment, licenses, and government benefits. Equal protection is concerned with laws and actions that classify and treat people differently. CHAPTER OBJECTIVES After completing this chapter, the student should be able to • Identify the various protected interests, and the specific rights therein, secured by the Due Process and Equal Protection Clauses. • Describe due process cost-benefit analysis. • Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed. • Describe and apply the three review standards for due process and equal protection cases. • Brief a judicial opinion with little outside assistance. You should be successful in identifying the relevant facts. You should also be successful in identifying the legal issue and analyzing the Court’s rationale in at least 33 percent of your briefs. LECTURE OUTLINE 4.1

DUE PROCESS IN GENERAL • Fifth Amendment: “No person shall be deprived of life, liberty or property without due process of law” o Applies to federal government actions • Fourteenth Amendment is identical in language and applies to State government actions • Due process requires that the government treat all persons with a minimum amount of fairness when taking life, liberty or property o Procedural due process – process the government must use o Substantive due process – the actual essence of the laws and rules ▪ Law must evidence a rational relationship to a legitimate government interest or objective (rational relationship test) ▪ Substantive due process protects against arbitrary laws 31

• • See Table 4-1 4.2

Strict scrutiny applies when a fundamental right or a suspect class is regulated o Strict scrutiny requires a compelling governmental interest A substantial relationship is a middle ground test

PROTECTED INTERESTS 4.2(a) Life • Agency connections could include: o Providing or depriving of utilities o Approving or disapproving benefits 4.2(b) Liberty • Agency connections could include; o The right to move about o Granting or denying parole o Detaining illegal aliens o Preserving an individual's reputation 4.2(c) Property • Entitlements o Government entitlements are no longer revocable at will o Goldberg v. Kelly looked at the rights-versus-entitlements issue and determined that “it may be more realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity’ and that a person has a protected property interest in a benefit that they have a legitimate claim or expectation to • Governmental Employment • Garcetti v. Ceballos Facts: Ceballos was a calendar deputy in a prosecutor's office. He wrote two memos and made some statements concerning a case he was involved in. He alleges that he was subjected to employment retaliation in violation of the First Amendment for his oral and written statements about the case. After the case, he was transferred to a lower position as trial deputy, he was transferred to another location, and he was denied a promotion. Issue: Was Ceballos’ work related speech protected by the First Amendment? Decision: No. Although public employees do not shed their First Amendment rights entirely, they must accept limits on their rights as a condition of public employment. Statements of public employees made in the normal course of their duties are not protected by the First Amendment. The court distinguished this case from Pickering and other precedent by separating speech made outside of one’s duties that are of public concern (and subject only to restrictions needed to maintain efficiency and effectively) and speech that is work related. To insulate work related speech would be to protect employees from performance related discipline and review. o There is no right to government employment ▪ Once employed however, a protected interest may occur ▪ A protected interest in benefits may also occur based on due process if an entitlement has occurred