The Admin Threat

Question 1

The admin threat is the greatest threat to _____

Answer 1

civil liberties in our era

Question 2

All ___ is ___ unconstitutional

Answer 2

admin agency rulemaking, adjudication per se

Question 3

Admin power creates a state ___

Answer 3

within a state

Question 4

The exec has usurped legislative power from Congress through ___

Answer 4

admin rule making

Question 5

The exec has usurped adjudicative power through __

Answer 5

admin adjudication + judicial deference to agency on law and facts

Question 6

Admin agencies arose as a response to ____ to create a ___

Answer 6

greater democracy, technocracy

Question 7

Executive orders can be lawful if __, NOT if __

Answer 7

just orders to the executive branch, bind people/make law

Question 8

Admin law comes from ___ in England

Answer 8

prerogative law, James I absolutism

Question 9

Constitution authorizes the government to bind Americans____ administrative agencies attempt to bind Americans through other mechanisms—and in this sense administrative power is extralegal.”

Answer 9

only through the law and court

Question 10

Administrative agencies attempt to bind Americans through ___” so in that sense it is ___

Answer 10

other mechanisms, extralegal

Question 11

Early Americans assumed that a rule could have the obligation of law only if it came from the … and that a judicial decision could have legal obligation only if it came from a ____

Answer 11

constitutionally established legislature elected by the people, constitutionally appointed judge exercising independent judgment

Question 12

The U.S. Constitution therefore places the power to bind Americans ____ , not in ___

Answer 12

through Congress and the courts, the exec and the admin agencies

Question 13

Executive is the lawful force of the nation (See, ___) which means the executive, unlike the legislature or the judiciary, cannot ___

Answer 13

Federalist 78, impose legally binding obligation

Question 14

Admin power is an evasion of law, where rulemakers try to __

Answer 14

assert more power with less effort

Question 15

English kings had ___ to legislate through ____

Answer 15

absolute power, proclamations, regulations, adjudication

Question 16

most administrative power is not reviewed by Congress because __

Answer 16

most people aren’t paying attention

Question 17

Founders drafted the Constitution with an eye/fear of ___, which included Stuart monarchs exercising ____

Answer 17

English constitutional history, “absolute prerogative” to rule extralegally

Question 18

Article I blocks extralegal lawmaking by placing …

Answer 18

legislative power exclusively in Congress.

Question 19

Administrative rules ___ the constitutional right to vote and technically ____ is prohibited

Answer 19

dilute, delegation

Question 20

Article III prevents extralegal adjudication by placing judicial power ___ and does not allow judges to ___ because __

Answer 20

exclusively in courts, subdelegate, judicial power by its nature cannot be delegated

Question 21

Article 1 prohibits delegation because “____”

Answer 21

“All legislative powers herein granted shall be vested in a Congress

Question 22

Non-delegation is based on ___

Answer 22

consent (evade govt chosen by the people)

Question 23

Administrative agency rulemaking has been justified by fiction of __

Answer 23

intelligible principle

Question 24

Agencies have power by (1) ___ and (2) ____

Answer 24

making rules, interpreting own rules

Question 25

Due process “guarantees evolved primarily to bar __ the courts.”

Answer 25

any binding adjudication outside (admin violates it)

Question 26

Nowadays the Supreme Court says that the government’s interest in ___ trumps the right __.” (Atlas Roofing)

Answer 26

congressionally authorized admin adjudication, to a jury

Question 27

“The government now enjoys ___ in that it can choose enforcement through either the courts or administrative adjudication.

Answer 27

ambidextrous enforcement

Question 28

Deprivation of rights continues in the courts because of (1) ___, problematic because supposed to be ___

Answer 28

judicial deference to agency decisionmaking (Chevron, Auer), independent judgement, instead judicial precommitment to agency

Question 29

Deprivation of rights continues in the courts because of (2) ___, problematic because __

Answer 29

deference to admin factfinding, rely on one party’s version of the facts

Question 30

Deprivation of rights continues in the courts because courts hesitate (3) ___,

Answer 30

to declare unlawful agency act void, instead remand to agency

Question 31

Deprivation of rights continues in the courts because courts follow (4) ___,

Answer 31

the Brand X doctrine often allows agencies to disregard judicial precedent about the interpretation of statutes.”

Question 32

How are substantive rights affected by the admin state?

Answer 32

use admin proceedings to regulate words and speakers (FCC licensing, FEC for candidates)

Question 33

Primary argument FOR admin state

Answer 33

practicality

Question 34

FOR admin state: need to have expert judges to __

Answer 34

deal with complicated questions

Question 35

FOR admin state: ALJs are ___ but Hamburger disagrees because

Answer 35

unbiased, ALJs not binding reviewable by heads of agencies

Question 36

Why don’t judges want new judges?

Answer 36

dilutes their status (FOR admin state)

Question 37

Administrative rulemaking dilutes the constitutional right to vote, since ____

Answer 37

decisions are made by unaccountable bureaucrats w/ no regard to local interests, rather than by elected representatives

Question 38

Admin state has been a transfer of legislative power to the __

Answer 38

knowledge class

Question 39

The knowledge class is relatively ___ so regulation is bad for minorities

Answer 39

homogenous

Question 40

What is the Federalism issue with the admin state?

Answer 40

Supremacy Clause specifies that only federal laws “made in pursuance” of Const. trump state laws, so mere agency rules & interpretations cannot trump state laws (even though they do)

Question 41

First qualification to extralegal power

Answer 41

States may authorize state administrative agency powers (although risk violating Republican Form of Government Clause, Art. IV, §4)

Question 42

Second qualification to extralegal power

Answer 42

Local govts may authorize agency powers

Question 43

Third qualification to extralegal power

Answer 43

Const. permits Cong. to authorize licensing regulation for cross-border matters

Question 44

Fourth qualification to extralegal power

Answer 44

Military law: delegation is permitted

Question 45

Fifth qualification to extralegal power

Answer 45

Non-binding edicts are not violations

Question 46

Conclusions Admin Threat 1

Answer 46

denies freedom to be bound by only laws passed by legislation

Question 47

Conclusions Admin Threat 2

Answer 47

denies our freedom to be bound only by adjudications held in courts

Question 48

Conclusions Admin Threat 3

Answer 48

transforms our constitutional procedural rights from guarantees for the people into mere options for government.

Question 49

Conclusions Admin Threat 4

Answer 49

massive violation of procedural rights happens in the courts themselves

Question 50

Conclusions Admin Threat 5

Answer 50

administrative power comes with profound costs for the freedoms of speech and religion

Question 51

Conclusions Admin Threat 6

Answer 51

undermines voting rights

Question 52

Practicality of getting rid of admin threat 1

Answer 52

Regulation bad for economy

Question 53

Practicality of getting rid of admin threat 2

Answer 53

Congress can fill gap, gridlock is political, and fine if slow because most regulation long term

Question 54

Practicality of getting rid of admin threat 3

Answer 54

Courts can handle caseload

Question 55

Practicality of getting rid of admin threat 4

Answer 55

expertise of ALJ’s not worth much