Fed Admin

  1. Legislative Delegation Issue
    Is Congress' Delegation of Power to Agency OK?
  2. Legislative Delegation Rule
    • 1. Delegation was w/o Limitations
    • 2. OR w/o Standards (Mistretta & Whitman)
  3. Mistretta
    • Agency Guided by "intelligible Principle"
    • Based upon "Determinate Critereon"
  4. Whitman
    Requisite to protect Health and Welfare (Not too broad an intelligible Principle)
  5. When can Prez fire?
    When he has good cause, b/c there is no violation of separation of powers.
  6. Can an agency adjudicate a matter or must the matter go directly before a court of law?
    • "Public Right" = Agency can adjudicate
    • Striclty Private Right = Agency CANNOT adjudicate
    • Private Right = Integral part of Regulatory Scheme = Can Adjudicate
  7. Warrantless Inspections
    • NY v Berger Generally not ok unless:
    • a. Substantial Gov Interest
    • b. WI essential to furthering the interest
    • c. Industry lowered expectation of privacy
    • d. Authorized by Statute
  8. Subpoena
    • Agency Subpoenas are not self executing
    • Individual can never challenge Agency Jurisdiction
    • Subpoena can't be fishing expedition
  9. Freedom of Information Act (FOIA)
    • Gov must give info pursuant to FOIA request unless:
    • a. Trade Secrets
    • b. Unwarranted Invasion of Personal Privacy (always met if about you)
    • c. Law Enforcement Exception
  10. What if the government violates a non-prisoner's personal privacy?
    • Gov can't give personal info out w/out permission
    • Zone of Privacy is constitutionally protected
    • Privacy not violated if: Law already adequately protects Privacy.
  11. What if the government violates prisoner privacy?
    • Decreased expectation of privacy.
    • Subject to legitimate penalogical interests.
  12. Rulemaking
    What is a Rule or an Order?
    • Rule = agency statement having:
    • General or particular Applicability
    • AND Future Effect

    A duly promulgated rule has the same force and effect as a congressional statute.

    An interpretation does not.

    Order = Agency's final disposition in a matter other than rulemaking and includes licensing.
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