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22.pptxJudicial Process: Most cases start in agency hearings or state trial courts, but federal constitutional law applies universally.
a) trial level - record of evidence, jury - individual justice is goal
appellate level - briefs, presentations - individual justice remains goal:
DC Circuit can be used by any party in suit against federal government and is often designated place for administrative challenges
c) supreme appellate level - briefs, presentations: systemic justice is goal
majority, dissenting, concurring opinions
amicus curiae
- dictum/dicta: content of opinion that goes beyond direct issues
PS 480 Introduction: The Context
Oregon Judicial Department, 2015
http://courts.oregon.gov/OJD/docs/aboutus/appealsinoregoncourts.pdf
The United States has a “dual judicial system”, in which state and federal court systems operate independently
History and key background cases: Philip Cooper approach
Period I: The Era of Restraint (Founding to 1928)
Marked by:
1) affirmation of Congressional power to create administrative agencies
- McCulloch v Maryland (1819): states could not tax central bank properly established by Congress
-Gibbons v. Ogden (1824): interstate commerce clause could allow regulations within states: steamship lines
- later ICC, FTC
2) limited exercise of government power in practice
PS 480 Introduction: The Context
Period II: Crossroads (1928-1946)
Broader Delegation(giving) of power to agencies accepted – discussed later
- explosion in government action
Commerce clause expanded, increasing Congressional/national government reach
- NLRB v. Jones and Laughlin Steel (1937)
Agencies finding their own way in law: diversity and consistency problems
PS 480 Introduction: The Context
Period II: Crossroads (1928-1946)
McCarren-Summers Act(1946): Administrative Procedures Act(APA)
- systematic rulemaking
- minimal administrative due process
- guidelines for judicial review
PS 480 Introduction: The Context
Era of Large-Scale Bureaucracy (1946-1975)
Creation of many government benefits fostered recognition of government benefits or regulations as “property rights” or affecting liberty, therefore introducing more due process concerns concerning government actions
Beginning reassertion of counter-pressures to constrain government and bureaucracy
Fight against socialism, or at least “dependency”
Stop Big Brother
- Counter over-regulation
PS 480 Introduction: The Context
Contemporary Context (1976- present)
Five Characteristics of Contemporary Context:
Ambivalence regarding government
Politicization of administration
Fiscal stress
Contracting out/ privatization
Globalization
PS 480 Introduction: The Context
Contemporary Context (1976- present)
Five Characteristics of Contemporary Context:
1. Ambivalence regarding government: regulation, de-regulation, re-regulation.
All politicians push regulation, de-regulation, respond to problems of de-regulation.
Government, esp. bureaucracy, criticized as problem and not a solution, yet is no other tool for certain problems
PS 480 Introduction: The Context
Five Characteristics of Contemporary Context:
Ambivalence regarding government:
Consider size, complexity, and controversy over Homeland Security and Health and Human Services
- Action on COVID 19, or too much action?
PS 480 Introduction: The Context
2) Politicization of administration
- importance of implementation clear
Reagan: first “administrative presidency”: cannot change popular laws, but can implement them differently (or not at all)
Legislators seek to guide implementation more
- State resistance to Affordable Care Act
Five Characteristics of Contemporary Context:
2) Politicization of administration
Consider Obama’s last years
Not being able to change immigration, Obamacare, or environmental statutes, the Trump administration deliberately uses the tools of appointment, regulatory review, the reallocation of discretionary funds, and executive orders to push as far as the courts will allow to advance policy objectives.
Five Characteristics of Contemporary Context:
Five Characteristics of Contemporary Context:
3) Fiscal stress
- more discretion because agencies must prioritize, but agencies leave things undone
- expensive procedures (litigation) less desirable to agencies
4. Contracting out/ privatization
Privatization: use of private organizations for public purposes
pushed by desire for efficiency and ideological purposes
Public contracts: “principal-agent” problem is central issue when creating and operating by contract: NSA, CIA, and Edward Snowden
Booz Allen Hamilton: 99% revenue from US
Five Characteristics of Contemporary Context:
4. Contracting out/ privatization
Employment by “shadow government” of government corporations and contractors swells federal employment from 5 million to over 17 million. (Paul Light)
Different legal context for private contractors and some independent corporations
Five Characteristics of Contemporary Context:
5. Globalization
- Preemption by treaties
Appeals to international panels
- Drive to de-regulate for competitive advantage
Five Characteristics of Contemporary Context:
Administrative Law:
- Universal elements such as the Constitution and a few overarching laws like the Administrative Procedures Act (APA), (and parallels in states)
- Special overarching laws depending on context: National Environmental Protection Act, international trade
- Specific agency context built through:
- “organic acts” - which create agencies and set their basic design and responsibilities
- “enabling acts” which assign agencies specific responsibilities an sometimes specific procedural requirements
PS 480 Introduction: The Context
Examples of government diversity:
Hall’s “Executive Agencies” : under direct control of president with congressional oversight
Departments: “cabinet rank” agencies, contain various subsidiary offices and programs. Executive and legislative struggles to control
“Independent Executive Agencies”: like departments but typically have a single purpose and are not cabinet level: EPA.
PS 480 Introduction: The Context
Examples of government diversity:
Hall’s “Independent Agencies”: less directly governed by president
Independent regulatory commissions or boards – insulated from politics by long-term board appointments.
Typically staggered terms and diverse political representation.
Board members can only be removed for “cause”, not by presidential discretion
Ex: Securities and Exchange Commission (SEC), Federal Communications Commission (FCC)
PS 480 Introduction: The Context
Examples of government diversity:
Government Corporations: mimic private management model. Free of typical administrative procedural requirements, but are bound by Constitutional limits on government: Amtrak
At state level there are hundreds of special commissions or boards, each with some unique characteristics
Administrative work
Making rules (aka ”regulations”)
- Four page statute on compensation to “bailed out” corporation executives led to 123 pages of regulations
Adjudicating disputes – resolving disagreements over agency policies or decisions
- Social Security Agency handles more hearings than all federal courts, and judges review over 95,000 adjudicative proceedings
PS 480 Introduction: The Context
Core consideration in administrative law: use of discretion in world of human and complex values
Are bureaucratic choices appropriate?
Bureaucrats are human: personal qualities, values, and relationships matter
Citizens want to be treated equally, and as individuals
Public expectations are diverse and changing
So agencies have discretion and power: how do we control them?
CONTROL OVER AGENCIES:
Legislative
Executive
Judicial: (this will be heart of most of the class)
PS 480 Introduction: The Context
Limited appointment power: advise and consent with “principal” officers and control over those directly serving Congress
Money: controls ‘purse strings”, although must be very specific or president may reallocate
Oversight: hearings
Legislative control: amend laws to constrict discretion
Legislative Control over Administration
Executive Control over Administration
Appointment: Shared power with Congress for principal officers
- President controls appointment of “inferior officers” and interim officers
Most employees part of the “civil service system” or work in specific employee systems (ex. military): generally on basis of merit and not controlled by president
Removal: presumption that president can remove principal and inferior officers, but Congress may restrict this when officers have quasi-judicial or quasi-legislative responsibilities: lower employees have due process
PS 480 Introduction: The Context
Presidential tools:
Office of Management and Budget (OMB) is key executive agency for oversight of rulemaking/regulatory process
OMB’s Office of Information and Regulatory Affairs(OIRA) enables the president (and their officers) to review any “significant regulatory action”
In practice this can lead to delays(possibly permanent) and edits in final administrative rules.
CONTROL OVER AGENCIES: Executive Branch
Executive orders that define priorities or reorganize organizations
Budget influence – creates proposed budget that can influence later discussions
- Can prioritize within categories
PS 480 Introduction: Delegation of Power
Legislative delegation: acceptance of need for Congress to give some legislative power to the bureaucracy was almost from start of Republic.
J. W.Hampton v. United States (1928)- delegation of tariff power
delegation must have “intelligible principle”
- purpose is not primarily to raise revenue but to promote favorable trade
PS 480 Introduction: The Context
Delegation going too far ….
Schechter Poultry (1935) : “sick chickens”: National Industrial Recovery Act gave President power to make “codes of fair competition”
too unlimited, vague and contradictory: ex. limit monopolies but encourage cooperation
Congress could not give president vague power to further delegate power, such as to private bodies that could interfere with state regulations
(Section differentiating intrastate and interstate commerce not useful anymore)
Also: Panama Refining Co. v. Ryan (1935)
Delegation of legislative power
No longer is “intelligible principle” or “standards” a likely concern:
Whitman Trucking (2001) case: Clean Air Act’s “adequate margin of safety” and “requisite to protect the public health” are sufficient guidelines to discretion
Touby v. U.S. (1991): Controlled Substances Act has enough standards to create accountability for Attorney General to make temporary schedule determinations for controlled substances.
Delegation of legislative power
Delegation Doctrine Contemporary Issue: are agencies acting properly within their delegated powers?
1980 Industrial Union Dep’t AFL-CIO v.American Petroleum Institute: agency overreached in its interpretation of power in requiring unjustified protection from Benzene
Gonzales v. Oregon (2006) – U.S. Attorney General could not use Controlled Substance Act to restrict assisted suicide since such applications were not even reasonably implied in law
Cases on website are often presented through their syllabus.
Syllabi are not the actual court opinions. They are summaries prepared by the Court Reporter.
Syllabi are easy to read but less nuanced and thorough.
They avoid the judicial discussions featured in actual opinions and are NOT the law.
Often I include excerpts of the actual opinion which contain the core meaning of the case for our purposes
Any dissents are actual written opinions of justices.
Example of court concerns
Florida v. US Department of Health and Human Services (2012) National Federation of Independent Business v. Sebelius (2012)
Four main possible issues:
Is the issue ripe, is review precluded by Anti-Injunction Act: can the mandate can be evaluated before implementation? Is this in the court’s jurisdiction?
Can federal government greatly expand mandate on states attached to Medicaid?
Can Congress require action, specifically is the purchase of insurance covered by the “commerce clause”?
If key provision is found unconstitutional, is entire Affordable Care Act (ACA) invalidated?
APPEALS IN OREGON COURTS
Supreme Court
Court of Appeals
Tax Court
Circuit Court
Admini- strative Tribunal
*Justice Court
*Municipal Court
County Court
Citizens and the State of Oregon
Individuals or organizations The state’s district attorneys initiate lawsuits depending prosecute criminal cases. on location and type of Government agencies may case. initiate certain civil actions.
* If a justice court or municipal court becomes a court of record, appeals go directly to the Court of Appeals. To be a court of record, the justice of the peace or municipal court judge must be a licensed lawyer, and the court must have a court reporter who records the court’s proceeding.
KWC:sh/Appeals in Oregon Courts 12-26-06
Supreme Court has original jurisdiction in mandamus, quo warranto, habeas corpus
Court Action Initiated
Routes of Appeal
APPEALS IN OREGON COURTS
Supreme Court
Court of Appeals
Tax
Court
Circuit
Court
Admini-
strative
Tribunal
*Justice
Court
*Municipal
Court
County
Court
Citizens and the State of Oregon
Individuals or organizationsThe state’s district attorneys
initiate lawsuits dependingprosecute criminal cases.
on location and type ofGovernment agencies may
case. initiate certain civil actions.
* If a justice court or municipal court becomes a court of record, appeals go directly to the Court of Appeals. To be a
court of record, the justice of the peace or municipal court judge must be a licensed lawyer, and the court must
have a court reporter who records the court’s proceeding.
KWC:sh/Appeals in Oregon Courts 12-26-06
Supreme Court has
original jurisdiction in
mandamus, quo
warranto, habeas
corpus
Court Action
Initiated
Routes of
Appeal
