law211 Ch. 4-5
What is the first amendment? What is free Speech?
First Amendment protects most speech by using a strict scrutiny standard
What is an administrative agency?
government entity (other than a court or legislature) having authority to affect the rights of private parties
State Action
actions of governments to which constitutional provisions apply
What is the supremacy clause?
federal law takes precedence over conflicting state laws
How does one become an administrative law judge?
ALJs are appointed by the agency through a professional merit selection system and may be removed only for good cause.
What do the letters ALJ refer to?
ALJs are appointed by the agency through a professional merit selection system and may be removed only for good cause.
What is the difference between enumerated or express powers and implied powers?
Enumerated powers are specifically listed in the constitution. Implied powers are not stated specifically but are assumed by the exercise of the enumerated powers.
What is the difference between and executive agency and independent agency?
Executive agencies report directly to the president, and the heads of those agencies are members of the president's cabinet. Defense, Interior, State and so on. independent agencies are usually set up by Congress and the president has less power in getting rid of the head.
What is the difference between the freedom of information act and the sunshine act?
FOIA gives the public access to most records in the files of federal administrative agencies. The Government in the Sunshine Act requires meetings of many federal agencies to be open to the public. This Act applies to multimember bodies whose members the President appoints with the advice and consent of the Senate, such as the SEC, the FTC, the Federal Communications Commission, the CPSC, and the Commodity Futures Trading Commission.
When can commercial speech be regulated?
First, the court must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, such speech, at the least, must concern lawful activity and not be misleading. Second, the court must determine whether the asserted government interest is substantial. If both inquiries yield positive answers, then, third, the court must determine whether the regulation directly advances the government interest asserted and, fourth, whether the regulation is not more extensive than is necessary to serve that interest.
When is the de novo standard used in administrative proceedings?
If the order is appealed, the governing body of the agency may decide the case de novo. Thus, the agency may hear additional evidence and arguments in deciding whether to revise the findings and conclusions it made in the initial decision.
When must agency provide notice of a proposed rule?
In 1990, Congress enacted the Negotiated Rulemaking Act to encourage the involvement of affected parties in the initial stages of the policy-making process prior to the publication of notice of a proposed rule. The Act authorizes agencies to use negotiated rulemaking but does not require it. If an agency decides to use negotiated rulemaking, the affected parties and the agency develop an agreement and offer it to the agency. If accepted, the agreement becomes a basis for the proposed regulation, which is then published for comment.
What differences exist between formal and informal rule making?
In formal rulemaking, the agency must consider the record of the trial-like agency hearing and include a statement of "findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record" when making rules. nformal rulemaking procedures of the APA, which require that the agency provide the following: prior notice of a proposed rule, usually by publication in the Federal Register; an opportunity for interested parties to participate in the rulemaking; and publication of a final draft containing a concise general statement of the rule's basis and purpose at least thirty days before its effective date.
When is procedural due process required? What is substantive due process?
In the U.S. Constitution, the phrase "due process" appears twice: in the Fifth Amendment and in the Fourteenth Amendment. Both Amendments guarantee due process when someone is denied "life, liberty, or property." Substantive due process is the notion that due process not only protects certain legal procedures, but also protects certain rights unrelated to procedure.
Are administrative hearings held before a jury?
Juries are never used.
What are the differences between legislative rules, interpretive rules, and procedural rules?
Legislative Rules: substantive rules issued by an administrative agency under the authority delegated to it by the legislature Interpretative Rules: statements issued by an administrative agency indicating how it construes the statutes and rules that it administers Procedural Rules: rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before the agency
Do legislative rules have to be promulgated in accordance with procedural requirements of the APA?
Legislative rules must be promulgated in accordance with the procedural requirements of the APA, although the enabling statute may impose more stringent requirements.
What are the three basic functions of administrative agencies?
Most administrative agencies perform three basic functions: rulemaking, enforcement, and adjudication of controversies.
What is meant by the term federalism?
the division of governing power between the federal government and the states
What is the difference between the strict scrutiny, intermediate, and rational relationship tests? When does each standard apply by the court? pg. 89
Rational Relationship Test: standard of equal-protection review applicable to cases not subject to either the strict scrutiny test or the intermediate test, such as economic regulation Strict Scrutiny Test: exacting standard of equal-protection review applicable to regulation affecting a fundamental right or involving a suspect classification Intermediate Test: standard of equal-protection review applicable to regulation based on gender and legitimacy
Does the bill of rights apply directly to the states?
The Bill of Rights originally only applied to the federal government, but has since been expanded to apply to the states as well.
Who is referred to as the fourth branch of government?
These agencies, which many label the "fourth branch of government," possess tremendous power and have long been criticized as being "
What is the administrative law judges (alj) role in administrative proceedings?
The hearing is presided over by an administrative law judge (ALJ) and is prosecuted by the agency.
Federal government is what?
a limited power of government
What is defamation? Is a public figure have to show actual malice in order to win a defamation suit?
a tort consisting of a false communication that injures a persons reputation; such a communication receives limited constitutional protection.
What does the term administrative process mean?
entire set of activities engaged in by administrative agencies while carrying out their rulemaking, enforcement, and adjudicative functions
What is commercial free speech?
expression related to the economic interests of the speaker and its audience; such expression receives a lesser degree of protection
what does the due process of the 5th amendment protect peoples?
individual rights when it comes to federal government
What is the administrative procedural act? (APA)
is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations.
What are the 3 powers of government?
legislative, judicial, executive
Does the first amendment guarantee freedom of speech in all cases?
no
What is the Equal Protection Clause? Is all government action that treats two classes of people differently valid based on the equal protection clause?
requires that similarly situated persons be treated similarly by government actions
what is the taking clause and where is it found?
the 5th amendment to the federal constitution contains a takings clause that provides that private property shall not be taken for public use without just compensation. The US Supreme Court has held that the takings clause is incorporated through the 14th amendment and is therefore applicable to the states
What is the bill of rights? Were they a part of the US Constitution as original drafted?
the first ten amendments to the US Constitution, ratified in 1791 and guaranteeing such rights as the freedoms of speech, assembly, and worship. the first Congress approved ten amendments to the U.S. Constitution, now known as the Bill of Rights, which were adopted on December 15, 1791.
what does the due process clause of 14th amendment protect people from?
violations of their rights by the state government
Can a decision of an administrative body be appealed at some point to a court?
yes
