2. Chapter #4 Chapter #4 A History of Law & Administration

3. Agency Evolution & Powers History of Administrative agencies— it has evolved over the years from 4 separate ‘periods’ (See book)—not as important for our purposes as are the following topics: History of Administrative agencies— it has evolved over the years from 4 separate ‘periods’ (See book)—not as important for our purposes as are the following topics: Separation of Powers of our Government. Separation of Powers of our Government. Delegation Doctrine Delegation Doctrine Restrictions on Agency Power. Restrictions on Agency Power.

4. 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 president Article III: Establishes the court system Articles 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 Constitution First 10 Amendments: Protect personal freedoms from government encroachment (the Bill of Rights)

5. Basic Constitutional Concepts Federalism and Delegated Powers Separation of Powers Checks and Balances Admin Agencies are controversial As they hold All 3 branches Of power

6. 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:

7. JUDGE JUDY READY TO RULE---- Case: MISTRETTA V. UNITED STATES– US Congress passed the Sentencing Reform Act of 1984 which created the US Sentencing Commission which promulgates Binding 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 guidelines Are constitutional.

8. Constitutional Due Process Requirements Due Process Clause 5 th (federal) & 14 th(states) Amendments Due Process Clause 5 th (federal) & 14 th(states) Amendments

9. JUDGE JUDY READY TO 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 space Dedication 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 PROCESS Violated as Conditions required By city commission Does not measure up To the degree of Connection to the Projected impacts/harm (a weighing test)

10. Other Constitutional Restrictions on Administrative Agencies’ Actions b 1 st Commercial Free Speech & Press & “Right to Privacy” b 4 th Amendment Freedom from Unreasonable Searches & Seizures b 5 th Amendment “Takings Clause”

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

12. Central Hudson Test (to be applied when the government tries to restrict commercial speech rights) Courts will apply the 4 part “Central Hudson” Test to see if a government’s restriction on commercial speech is constitutional. 1.The subject commercial speech must promote a lawful activity & not be misleading. 2. The asserted governmental interest must be substantial 3.The government regulation must directly advance The government’s interest 4.The government’s regulation must not be more extensive then necessary?

13. JUDGE JUDY READY TO RULE---- Case: Bad Frog Brewery v. New York State Liquor Authority– Label on Beer Bottle Shows 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 inappropriate Message. Administrative Agency’s Actions Violate 1 st Amendment Commercial Free Speech Rights as It Does Not Pass Muster under the “Central Hudson Test”

15. Fourth Amendment n The Fourth Amendment prohibits the government form committing “unreasonable” searches & seizures. Our courts are constantly weighing peoples’ rights to be free from unreasonable searches and the government’s need to conduct searches to help in coping with American’s crime problem. n The exclusionary rule keeps out evidence during trial which is obtained in violation of a person’s Fourth Amendment rights. n Warrants issued by a judge are generally needed before police can search for narcotics, however if certain circumstances exist a warrant is not needed (incident to arrest, impractical to do so.) 4 th amendment Only applies As to govern- Mental Searches & Seizures—not Private people Or companies’ Searching & Seizing. General Warrants

16. Regulatory Searching Under 4 th Amendment (not Police) n If a business is “highly regulated” then there is no “reasonable expectation of privacy” and thus inspections can occur without warrant and any evidence can be used in an administrative proceeding. n If a business specifically consents in its license procedures to inspections—then no warrant needed b/c no “reasonable expectation of privacy” exists for regulatory searches/inspections and any evidence can be used in administrative proceeding.

17. Regulatory Searching Under 4 th Amendment (not Police) (Continued) n If waiver of the business representatives to the warrant requirement, then no violation of 4 th amendment by police or administrative inspectors. n If police or law enforcement are using administrative inspectors as “tools” or ultra- egos to look for illegal activities for them, then the warrant requirement attaches in many situations ----as then it is the police that are really doing the search (not administrative inspectors).

18. Police: Exceptions to Warrant Necessity n Hot Pursuit; n Possible Destruction of Evidence Possibly; n Good Faith Exemption; n Waiver; n Plain View; n Life emergency;

19. n 1. Government must do the “takings” n 2. For a “public purpose” (This element has been modified to allow for private property being seized for use by developers— U.S. Sct. Court Case of Kelo v. City of New London on 6/23/05, dealing with Connecticut Water Front Home Owners Houses taken by the city for commercial development.) n 3.“Just compensation” must be paid to owner. Once Upon A Time….. 5 th Amendment “Takings Clause”—ie. Eminent Domain

20. 2.2 Acres 8 million Twin Tower 600 Apt-Complex Downtown Miami--1998

21. Hmmmmmm…

22. Owner Expert Government Agent 2000 year old Tequesta Indian Rock Formation 38’ in diameter

24. 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!

25. Was it for a “Public Purpose”? Was this a Government Taking? What is “Just Compensation”? 26.7 Million

26. Administrative Agencies’ Takings under the 5th Amendment can come in all shapes and forms--not necessarily a “physical taking of land” Regulations limiting size/height of buildings Regulations requiring bars to close early at night Regulations limiting billboards on the side of roadways.

27. Certain Areas Reserved to Federal Agencies and State Agencies Cannot Interfere n Immigration; n Foreign Relations; n Trade;

28. JUDGE JUDY READY TO RULE---- Case: American Insurance Assn. v. Garamendi – California's Holocaust Victim 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 any insurer 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 exclusively Federal authority.