Chapter #4Chapter #4A History of Law & A History of Law &

AdministrationAdministration

Agency Evolution & Agency Evolution & PowersPowers

History of Administrative agencies— History of Administrative agencies— it has evolved over the years from 4 it has evolved over the years from 4 separate ‘periods’ (See book)—not as separate ‘periods’ (See book)—not as important for our purposes as are the important for our purposes as are the following topics:following topics:

Separation of Powers of our Separation of Powers of our Government.Government.

Delegation DoctrineDelegation Doctrine Restrictions on Agency Power.Restrictions on Agency Power.

Basic Structure

Article I: Sets up Congress, enumerates its powers• Section 8, Clause 3: Gives Congress power to regulate commerce (the Commerce Clause)

Article II: Sets up executive branch, headed by the presidentArticle III: Establishes the court systemArticles IV and VI: Addresses the relationship between the federal government and the states

• Article VI, Clause 2: Provides for the supremacy of federal law over state law (the Supremacy Clause)

Article V: Provides for amendments to the ConstitutionFirst 10 Amendments: Protect personal freedoms from

government encroachment (the Bill of Rights)

Basic Constitutional Basic Constitutional ConceptsConcepts

Federalism and Delegated Powers

Separation of Powers

Checks and Balances

Admin Agenciesare controversial

As they holdAll 3 branches

Of power

Delegation Doctrine

Article I: “All legislative powers herein granted shall be vested in the Congress of the United States”

• nondeligation doctrine: Powers delegated to Congress by the Constitution can not be redelegated….•However, courts have held that Congress can create agencies, through enabling legislation, and then give them power: Delegation Doctrine

However, agencies CANNOT go beyond the scope of authority delegated to them by Congress:

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: MISTRETTA V. UNITED STATES– US Congress passed the SentencingReform Act of 1984 which created the US Sentencing Commission which promulgatesBinding sentencing guidelines and establishes a range of determinate sentences. Defendant in a criminal case challenges such delegation of authority and thus the Mandatory sentence handed down to him by judge in accordance with the guidelines.

Act is a Constitutional Delegation of Authority by

Congress and thus guidelinesAre constitutional.

Constitutional Due Process Constitutional Due Process RequirementsRequirements

Due Process Clause 5Due Process Clause 5th (federal)th (federal) & & 1414th(states)th(states) Amendments Amendments

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: DOLAN V. CITY OF TIGARD – City Planning Commission conditions Expansion of a store and paving parking lot upon giving up property for green spaceDedication to prevent flooding of creek and pedestrian foot and bike traffic pathway. Applicant refuses, is denied permit, Oregon courts uphold denial and US Supreme Court Grants Certiorari. Is the condition by city unconstitutional

DUE PROCESSViolated as

Conditions requiredBy city commission

Does not measure up To the degree of Connection to the

Projected impacts/harm(a weighing test)

Other Constitutional Other Constitutional RestrictionsRestrictionson Administrative Agencies’ on Administrative Agencies’ ActionsActions

11stst Commercial Free Speech & Commercial Free Speech & Press & “Right to Privacy”Press & “Right to Privacy”

44thth Amendment Freedom from Amendment Freedom from Unreasonable Searches & SeizuresUnreasonable Searches & Seizures

55thth Amendment “Takings Clause” Amendment “Takings Clause”

Commercial Commercial SpeechSpeech

Commercial speech (speech with a profit-Commercial speech (speech with a profit-making motivation) is entitled to First making motivation) is entitled to First Amendment protection, Amendment protection, although less although less protection than other types of speech such as protection than other types of speech such as religious or political communicationreligious or political communication. . Companies have a right to Companies have a right to “commercial free speech” but the “commercial free speech” but the government can regulate this speech in government can regulate this speech in accordance with the legal test called the accordance with the legal test called the “Central Hudson Test” “Central Hudson Test”

Central Hudson Test Central Hudson Test (to be applied when the government (to be applied when the government tries to restrict commercial speech tries to restrict commercial speech

rights)rights)

Courts will apply the 4 part “Central Hudson”Test to see if a government’s restriction oncommercial speech is constitutional. 1. The subject commercial speech must promote a lawful activity & not be misleading. 2. The asserted governmental interest must besubstantial3. The government regulation must directly advance The government’s interest4. The government’s regulation must not be more extensive then necessary?

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: Bad Frog Brewery v. New York State Liquor Authority– Label on Beer BottleShows Frog holding up its four “fingered” right “hand” with the back of the “hand” Showing the “second finger” extended and the other three “fingers” slightly curled.NY Board Refuses to issue license to distribute due to “vulgarity” and inappropriateMessage.

Administrative Agency’sActions Violate 1st

Amendment CommercialFree Speech Rights as

It Does Not Pass Muster under the

“Central Hudson Test”

Fourth AmendmentFourth Amendment The Fourth Amendment prohibits the government form The Fourth Amendment prohibits the government form

committing “unreasonable” searches & seizures. Our committing “unreasonable” searches & seizures. Our courts are constantly weighing peoples’ rights to be free courts are constantly weighing peoples’ rights to be free from unreasonable searches and the government’s need to from unreasonable searches and the government’s need to conduct searches to help in coping with American’s crime conduct searches to help in coping with American’s crime problem.problem.

The exclusionary rule keeps out evidence during trial The exclusionary rule keeps out evidence during trial which is obtained in violation of a person’s Fourth which is obtained in violation of a person’s Fourth Amendment rights.Amendment rights.

Warrants issued by a judge are generally needed before Warrants issued by a judge are generally needed before police can search for narcotics, however if certain police can search for narcotics, however if certain circumstances exist a warrant is not needed (incident to circumstances exist a warrant is not needed (incident to arrest, impractical to arrest, impractical to do so.) do so.)

4th amendmentOnly appliesAs to govern-Mental Searches &Seizures—notPrivate peopleOr companies’Searching &Seizing.

General Warrants

RegulatoryRegulatory Searching Under Searching Under44thth Amendment (not Police) Amendment (not Police)

If a business is “highly regulated” then If a business is “highly regulated” then there is no “reasonable expectation of there is no “reasonable expectation of privacy” and thus inspections can occur privacy” and thus inspections can occur without warrant and any evidence can be without warrant and any evidence can be used in an administrative proceeding.used in an administrative proceeding.

If a business specifically consents in its If a business specifically consents in its license procedures to inspections—then license procedures to inspections—then no warrant needed b/c no “reasonable no warrant needed b/c no “reasonable expectation of privacy” exists for expectation of privacy” exists for regulatory searches/inspections and any regulatory searches/inspections and any evidence can be used in administrative evidence can be used in administrative proceeding.proceeding.

RegulatoryRegulatory Searching Under Searching Under44thth Amendment (not Police) Amendment (not Police)

(Continued) (Continued) If waiver of the business If waiver of the business

representatives to the warrant representatives to the warrant requirement, then no violation of 4requirement, then no violation of 4thth amendment by police or administrative amendment by police or administrative inspectors.inspectors.

If police or law enforcement are using If police or law enforcement are using administrative inspectors as “tools” or administrative inspectors as “tools” or ultra-egos to look for illegal activities for ultra-egos to look for illegal activities for them, then the warrant requirement them, then the warrant requirement attaches in many situations ----as then it attaches in many situations ----as then it is the police that are really doing the is the police that are really doing the search (not administrative inspectors).search (not administrative inspectors).

Police: Exceptions to WarrantPolice: Exceptions to WarrantNecessityNecessity

Hot Pursuit; Hot Pursuit; Possible Destruction of Evidence Possible Destruction of Evidence

Possibly;Possibly; Good Faith Exemption;Good Faith Exemption; Waiver; Waiver; Plain View;Plain View; Life emergency;Life emergency;

1. Government must do the 1. Government must do the “takings”“takings”

2. For a “public purpose” 2. For a “public purpose” (This element has (This element has been modified to allow for private property being seized for use been modified to allow for private property being seized for use by developers— U.S. Sct. Court Case of Kelo v. City of New by developers— U.S. Sct. Court Case of Kelo v. City of New London on 6/23/05, dealing with Connecticut Water Front Home London on 6/23/05, dealing with Connecticut Water Front Home Owners Houses taken by the city for commercial development.)Owners Houses taken by the city for commercial development.)

3.3. “Just compensation” must be “Just compensation” must be paid to paid to owner. owner.

Once Upon A Time…..

5th Amendment “Takings Clause”—ie. Eminent Domain

2.2 Acres8 million

Twin Tower600 Apt-Complex

Downtown Miami--1998

Hmmmmmm…

OwnerExpert

GovernmentAgent

2000 year old Tequesta Indian Rock Formation38’ in diameter

State of Florida seizes land and makes several offers ranging from 14-18 million(to make a park and preserve the site)

Developer demands no less than 50 million!

Was it for a “Public Purpose”?

Was this a Government Taking?

What is “Just Compensation”?

26.7Million

Administrative Agencies’ Takings under the 5th Amendmentcan come in all shapes and forms--not necessarilya “physical taking of land”

Regulations limiting size/height of buildings

Regulations requiring barsto close early at night

Regulations limiting billboardson the side of roadways.

Certain Areas Reserved to Certain Areas Reserved to Federal Agencies and State AgenciesFederal Agencies and State Agencies

Cannot InterfereCannot Interfere

Immigration;Immigration; Foreign Relations;Foreign Relations; Trade; Trade;

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: American Insurance Assn. v. Garamendi – California's HolocaustVictim Insurance Relief Act (HVIRA) requires California insurers to provide extensive information regarding every insurance policy issued in Nazi dominated Europe between 1920 and 1945 by anyinsurer with which the California insurer now has a legal relationship. Can the state pass such a law?

California State law/regulation Interferes with foreign

Relations which is exclusivelyFederal authority.