The Admin Threat Flashcards
The admin threat is the greatest threat to _____
civil liberties in our era
All ___ is ___ unconstitutional
admin agency rulemaking, adjudication per se
Admin power creates a state ___
within a state
The exec has usurped legislative power from Congress through ___
admin rule making
The exec has usurped adjudicative power through __
admin adjudication + judicial deference to agency on law and facts
Admin agencies arose as a response to ____ to create a ___
greater democracy, technocracy
Executive orders can be lawful if __, NOT if __
just orders to the executive branch, bind people/make law
Admin law comes from ___ in England
prerogative law, James I absolutism
Constitution authorizes the government to bind Americans____ administrative agencies attempt to bind Americans through other mechanisms—and in this sense administrative power is extralegal.”
only through the law and court
Administrative agencies attempt to bind Americans through ___” so in that sense it is ___
other mechanisms, extralegal
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 ____
constitutionally established legislature elected by the people, constitutionally appointed judge exercising independent judgment
The U.S. Constitution therefore places the power to bind Americans ____ , not in ___
through Congress and the courts, the exec and the admin agencies
Executive is the lawful force of the nation (See, ___) which means the executive, unlike the legislature or the judiciary, cannot ___
Federalist 78, impose legally binding obligation
Admin power is an evasion of law, where rulemakers try to __
assert more power with less effort
English kings had ___ to legislate through ____
absolute power, proclamations, regulations, adjudication
most administrative power is not reviewed by Congress because __
most people aren’t paying attention
Founders drafted the Constitution with an eye/fear of ___, which included Stuart monarchs exercising ____
English constitutional history, “absolute prerogative” to rule extralegally
Article I blocks extralegal lawmaking by placing …
legislative power exclusively in Congress.
Administrative rules ___ the constitutional right to vote and technically ____ is prohibited
dilute, delegation
Article III prevents extralegal adjudication by placing judicial power ___ and does not allow judges to ___ because __
exclusively in courts, subdelegate, judicial power by its nature cannot be delegated
Article 1 prohibits delegation because “____”
“All legislative powers herein granted shall be vested in a Congress
Non-delegation is based on ___
consent (evade govt chosen by the people)
Administrative agency rulemaking has been justified by fiction of __
intelligible principle
Agencies have power by (1) ___ and (2) ____
making rules, interpreting own rules
Due process “guarantees evolved primarily to bar __ the courts.”
any binding adjudication outside (admin violates it)
Nowadays the Supreme Court says that the government’s interest in ___ trumps the right __.” (Atlas Roofing)
congressionally authorized admin adjudication, to a jury
“The government now enjoys ___ in that it can choose enforcement through either the courts or administrative adjudication.
ambidextrous enforcement
Deprivation of rights continues in the courts because of (1) ___, problematic because supposed to be ___
judicial deference to agency decisionmaking (Chevron, Auer), independent judgement, instead judicial precommitment to agency
Deprivation of rights continues in the courts because of (2) ___, problematic because __
deference to admin factfinding, rely on one party’s version of the facts
Deprivation of rights continues in the courts because courts hesitate (3) ___,
to declare unlawful agency act void, instead remand to agency
Deprivation of rights continues in the courts because courts follow (4) ___,
the Brand X doctrine often allows agencies to disregard judicial precedent about the interpretation of statutes.”
How are substantive rights affected by the admin state?
use admin proceedings to regulate words and speakers (FCC licensing, FEC for candidates)
Primary argument FOR admin state
practicality
FOR admin state: need to have expert judges to __
deal with complicated questions
FOR admin state: ALJs are ___ but Hamburger disagrees because
unbiased, ALJs not binding reviewable by heads of agencies
Why don’t judges want new judges?
dilutes their status (FOR admin state)
Administrative rulemaking dilutes the constitutional right to vote, since ____
decisions are made by unaccountable bureaucrats w/ no regard to local interests, rather than by elected representatives
Admin state has been a transfer of legislative power to the __
knowledge class
The knowledge class is relatively ___ so regulation is bad for minorities
homogenous
What is the Federalism issue with the admin state?
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)
First qualification to extralegal power
States may authorize state administrative agency powers (although risk violating Republican Form of Government Clause, Art. IV, §4)
Second qualification to extralegal power
Local govts may authorize agency powers
Third qualification to extralegal power
Const. permits Cong. to authorize licensing regulation for cross-border matters
Fourth qualification to extralegal power
Military law: delegation is permitted
Fifth qualification to extralegal power
Non-binding edicts are not violations
Conclusions Admin Threat 1
denies freedom to be bound by only laws passed by legislation
Conclusions Admin Threat 2
denies our freedom to be bound only by adjudications held in courts
Conclusions Admin Threat 3
transforms our constitutional procedural rights from guarantees for the people into mere options for government.
Conclusions Admin Threat 4
massive violation of procedural rights happens in the courts themselves
Conclusions Admin Threat 5
administrative power comes with profound costs for the freedoms of speech and religion
Conclusions Admin Threat 6
undermines voting rights
Practicality of getting rid of admin threat 1
Regulation bad for economy
Practicality of getting rid of admin threat 2
Congress can fill gap, gridlock is political, and fine if slow because most regulation long term
Practicality of getting rid of admin threat 3
Courts can handle caseload
Practicality of getting rid of admin threat 4
expertise of ALJ’s not worth much
