Test 1 Flashcards
Milton Friedman
The major functions of government are] to protect our freedom both from the enemies outside our gates and from our fellow-citizens: to preserve law and order, to enforce private contracts, [and] to foster competitive markets
To the free man, the country is the collection of individuals who compose it, not something over and above them
In a liberal society, freedom has nothing to say about what an individual does with his freedom. . . . [It leaves] the ethical problem for the individual to wrestle with
Robert Nozick
There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. . . . Individuals are inviolable and they may not be sacrificed or used for the achieving of other ends without their consent
Aristotle
Any polis which is truly so called. . . must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance. . . [and] becomes a mere covenant. . . instead of being, as it should be, a rule of life such as will make the members of a polis good and just
Michael Sandel
The republican conception of freedom, unlike the liberal conception, requires a formative politics, a politics that cultivates in its citizens the qualities of character self-government requires
Alexis de Tocqueville
Individualism is a reflective and peaceable sentiment that disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and friends, so that after having thus created a little society for his own use, he willingly abandons society at large to itself
Federalist 47
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (Madison, Fed 47, Woll p. 42
Separation of Powers
Federalist 48
It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers” (Madison, Fed 48, Woll p. 43)
Advocating for checks and balances on each branch of government
Types of Laws
Criminal
- felonies, misdemeanors, infractions
Civil
- contracts, torts, marriage and divorce
Where do laws come from?
- statutes and ordinances, constitutions
- Common Law derived from usage and customs
- “Backdrop” for all laws
- generally replaced by statutes and constitutions
Anatomy of a Judicial Decision
- Procedural history/procedural posture
- facts
- issue
- rule
- reasoning, analysis, or discussion
- holding
- judgment
- separate opinion
IRAC
- issue
- rule
- analysis
- conclusion
What is Administrative Law
- Administrative law is the body of law (including constitutional provisions, court decisions, statutes, and administrative rules) that regulates the exercise of agency discretion and the interactions between the three branches of government and the public.
Constitutional Context of AL
- Constitutional law frames many aspects of public administration
- separation of powers
- federalism
- individual rights & administrative encounters
- liability of administrators
Separation of Powers
the Constitution grants joint custody of the bureau to the three branches
- Congress’ Role
- No money shall be drawn from the Treasury, but in consequence of appropriations made by law
- Executive’s Role
- Enumerated Powers
- Delegated authority
- Executive orders, proclamations, memoranda, and directives
- Court’s Role
- vindication of individual rights
- relaxation of standing requirements
- Imposition of personal liability on public administrators
Temporal Effects of Rulemaking
- Rules are usually prospective–they define future expectations
Characteristics of Rules
- Legislative Rules
- like statutes they have the force and effect of law
- regulate conduct
- impose performance standards
- govern eligibility for licenses and benefits
- Procedural Rules
- govern an agency’s internal organization and operations
- Interpretive Rules
- establish an agency’s understanding of the terms of its statutory mandate
- explain the basis for existing legal obligations
Application of Rulemaking
- can govern a wide range of industries or activities or just a single process
- the more particular the application of rules, the more due process the subject is entitled to
Rulemaking Processes
- Notice/Comment Rulemaking
- Specific notice to interested parties or publication
- provide interested parties with opportunity to participate
- Negotiated Rulemaking
- face to face negotiation among interested parties
- appropriate when only a limited number of identifiable interests will be affected by a rule
Adjudication
- Evidentiary
- hearing in which evidence is adduced and law applied in determining the rights and obligations of individuals, corps, and others
Temporal Effect of Adjudication
- Retrospective
- looking at how someone behaved in the past
Legislative vs. Adjudicative Facts
- Legislative
- works off Normative conclusions
- how things ought to be
- works off Normative conclusions
- Adjudicative
- empirical
Objectives of Adjudication
- achieve fundamental fairness
- adjudicate cases competently
- resolve conflicts efficiently
- promote organizational performance
Criticisms
- information is hard to access
- inconsistency within agencies
- people don’t know they have done anything wrong until after the fact
Why Adjudicate?
- Agency convenience
- Incrementalism
- Suitable for resolving conduct and application cases
- Equity and compassion
- Constitutional due process
DC v. Heller
- Does the DC Code violate 2nd amendment?
- Yes
Whitman v. American Trucking Associations
- Does section 109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the Environmental Protection Agency? May the Administrator of the EPA consider the costs of implementation in setting national ambient air quality standards under section 109(b)(1)? Does the Court of Appeals have the jurisdiction to review the EPA’s interpretation of Part D of Title I of the CAA, with respect to implementing the revised ozone NAAQS?
- no, no, and yes
J.W. Hampton v. US
- Did the Tariff Act’s delegation of commerce power to the Executive Branch violate the Separation of Powers principle?
- Held that within defined limits, could vest discretion in Executive officers to make public regulations and direct the details of statutory execution
Wickard v. Filburn
- Is the amendment subjecting Filburn to acreage restriction in violation of the Constitution b/c Congress has no power to regulate activities local in nature?
- The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”
US . Lopez
- Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?
- Yes, the possession of a gun at school is not an economic activity. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity
Bi-Metallic Co. v. Colorado
- Do all individuals have a constitutional right to be heard before a matter can be decided where all land owners are equally concerned and stand alike?
- Affirmed. No. “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in a town meeting or an assembly of the whole.”
