Administrative Law
Paper details
Please this not an essay please have each answers numbered.
Textbook
6th Edition: Daniel E. Hall, ADMINISTRATIVE LAW: BUREAUCRACY IN A DEMOCRACY (6th ed., Pearson/Prentice Hall, 2015) ISBN-13: 978-0-13-349387-0
The address questions need to be answer. Also the citations to Hall textbook are pointless if a provide relevant page number or numbers not provided. Essential you are saying to the reader support is somewhere in the book you go find it. This is unacceptable please provide a relevant page citation
1. Briefly explain the constitutional limitations on delegation of rulemaking power to private entities.
2. Discuss briefly the pros and cons of the privatization of governmental regulatory or other governmental functions, i.e., usually “public” services. For this question assume the privatization effort is structured in a manner that is constitutional.
3. a. – c. Remember you need to state your reasoning that supports your conclusion. Please address each subpart of the question in a separate paragraph or if needed paragraphs. [Critical Thinking and Applications Problems, page 141 in 6th Ed.
Question
Congress enacts the “Interstate Shipment of Geckos Act”. In that act, the president 9or a designee) is given authority to : establish rules governing the interstate shipment of geckos; establish penalties for violations of the act and rules promulgated by the president; and appoint gecko magistrates who will hear all cases that arise under the act. The magistrates are answerable to the president and no other judicial review is available. When promulgating rules the president shall take into account the behavior and needs of geckos, all heath considerations, and the effect that geckos will have on indigenous flora and fauna. The goal of the act is to prevent the spread of disease and to protect indigenous animals and plants.
a) Is the delegation of quasi-legislative authority constitutional? Explain your answer.
b) Is the delegation of quasi-judicial authority constitutional? Explain your answer
c) Do you believe that the law of delegation keeps agencies adequately in check? Explain your answer
See sample answer below for question 3 on how it should be address.
In the gecko problem, the delegation by Congress of quasi-legislative authority is too broad. Congress has charged the body with “establishing rules governing the interstate shipment of geckos” (Admin. Law, 6th ed., p. 141). In the case Wayman v. Southard (1825), the Court ruled that an agency is to “fill in the details and procedures” in a general legislation. In this instance, Congress has provided the agency with too little direction. Another interesting component of this question is the consideration of the Commerce Clause, which states that Congress has the right to legislate on interstate commerce. In this instance, Congress is merely passing its rights to another source. It is clearly outlined in the United States v. Grimaud [220 U.S. 506 (1911)] that an agency must act on broad legislation that has been set up by Congress. In the enacting statute for the “Interstate Shipment of Geckos Act” (ISGA), no such legislation is discussed in which the agency is directed to use as a basis for its rulemaking. In Panama Refining Co. v. Ryan [293 U.S. 388 (1935)], the Supreme Court ruled that the decision of whether to control the interstate shipment of products is legislature in nature and does not belong in the executive branch. The executive branch does not make the rules for interstate commerce. This would strike down the ISGA’s first authoritative right: “…the president…is given authority to…establish rules governing the interstate shipment…” (Admin. Law, 6th ed., 141). This delegation of quasi-legislative authority also violates the intelligible principle. That is, Congress has not provided the ISGA with “sufficient standards” to guide and limit this proposed agency’s discretion. Congress has provided that ISGA “will take into account the behavior and needs of geckos, all health considerations, and the effect that the geckos will have on indigenous flora and fauna.” Congress has not provided the proposed agency with any direction or “starting points”. There is no reference to any legislation that Congress has already enacted and there are no limits placed on the ISGA: “…answerable to the president and no other judicial review is available” (Admin. Law, 6th ed., 141) [Mistretta v. United States [488 U.S. 361 (1989)]. Therefore, Congress has not provided the ISGA with enough guidance to make its delegation of quasi-legislative authority constitutional.
b) Is the delegation of quasi-judicial authority constitutional? Explain your answer.
In this instance, the delegation of the quasi-judicial authority is not constitutional. This Act allows for no check by the Judicial Branch to assure that each citizen’s right to liberty and property is upheld. The ISGA also violates the intelligible principle test in that it has not outlined decision-making guidelines the agency must follow and it has not assigned weights the agency should utilize in determining the illegality of an issue. Using the term “magistrate” is interesting in this example. A magistrate is a non-article III judge who is always under the supervision of an article III judge. Their decisions may be reviewed and overturned. The ISGA is set up so no review is possible by an Article III judge. This would make this delegation of quasi-judicial authority unconstitutional. Article III courts have the authority to review agency decisions. With limited exceptions, magistrates cannot render final judgments in cases involving life, liberty, and private property rights, but may make preliminary rulings subject to review by an Article III judge. Therefore, the delegation of quasi-judicial authority in the instance of the proposed ISGA is not constitutional.
c) Do you believe that law of delegation keeps agencies adequately in check? Explain your answer.
I believe that the law of delegation does keep the agencies adequately in check because there are safeguards where the branches of government can react quickly if an agency is operating outside the bounds of its enabling statute. It is very important that an agency’s enabling statute be well written and detailed, using the intelligible principle guide. Government is too big to be specialists in all areas. If agencies are properly set up and monitored for compliance, it is a big burden off the three branches and, ultimately, allows for a more efficient government.
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