INS v. Chadha, 462 U.S.

INS v. Chadha, 462 U.S. 919 (1983), how had Congress exercised authority over the INS, and why did the Supreme Court find this to be invalid?

Initially, the Immigration and Nationality Act (8USC 1254(a)1) authorized the INS to suspend the deportation of aliens who had resided in the United States for at least seven years and in which case the Attorney General found that the deportation would result in extreme hardship. Once the AG made the finding, a report would be given to Congress, and either house has the power to veto the AG's determination. Chadha was a foreign exchange student with a British passport, Kenyan by birth, East Indian by ethnicity, but neither country would accept him.

The Supreme Court found the resolution of the House of Representatives vetoing the AG's determination constitutionally invalid, unenforceable, and not binding. Reasons for this finding were that the INA is severable from the rest of the act; the AG and INS did not waive their rights to challenge the constitutionality of the statute; the act is genuine, and the case is a judicable question. Writing for the majority, Justice Powell argued that Congress could not act in a judiciary manner, nor could it expand its own powers -- something specifically put in place within the Constitution. For a house of Congress to force the deportation of Chadha would amount to a legislative trial.

Source: INS v CHADHA 462 U.S. 919 (1983). Cited in:

2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=462&page=919

3. Identify three (3) ways by which you are regulated by administrative agencies. State Liquor Control Board, Department of Revenue, Department of Insurance.

State Liquor Control Board -- Regulates who sells liquor retail or in bar/restaurant; when it can be sold, and how much can be sold. Many states hold monopolies and Liquor Stores are State controlled.

Department of Revenue -- State control of taxation, for businesses excise tax, use tax, etc. Federally, Revenue controls IRS, income tax, numerous and complex legal issues surrounding taxation.

Department of Insurance- Regulation of who may operate in which area and what insurance can be sold, regulation of rates, risk factors, claims.

4. Sources: Lencsis, P. (1997). Insurance Regulations in the United States. Greenwood; "U.S. Liquor Regulations" in http://hansard.millbanksystems.com/commons/1923/jul/02/united-states-liquor-regulations; "IRS" in www.irs.gov.

5. The federal statute allowing for appointment of an independent counsel had expired, though there is discussion as to passing new such legislation. Do you find the independent counsel law violates the separation of powers?

Used properly, the Independent Counsel Law is designed specifically to limit the power that high-placed governmental officials have -- the word independent is crucial. However, because counsels are often appointed by those who may have political agendas ( a 3 judge panel), some critics claim these broad powers allow prosecutors to overstep the bounds of their investigations. Witch hunts, hunts for additional information not initially covered and political rivalry are often part of the lengthy and expensive process. But one example was a $20 million dollar, 3-year investigation of former Agriculture Secretary Espy, who was cleared of all 30 charges. Certainly there was a better way to spend that kind of money and resource. However, instead of eliminating the counsel law entirely, perhaps it would be best simply to reword it, limiting the scope, and perhaps even the time and expense; then, depending on the issue, the counsel might need to regularly return to Congress with updates, and if needed, a continuance; in this manner, there is oversight, but still independence.

1. Sources: "The Role of the Independent Counsel," Constitutional Rights Foundation. Cited in: http://www.crf-usa.org/impeachment/independent-counsel.html; "Executive Power: Separation of Powers," Cited in: http://law.onecle.com/constitution/article-2/03-separation-of-powers.html

Unit 2 Questions

2. Identify three arguments why some scholars believe discretion is necessary in public administration, and further identify the opposing arguments. What evidence is needed to prove the arguments?

Administrative discretion is both a strength and weakness in contemporary political systems. There needs to be some aspect of control over information that is sensitive in terms of planning, budgeting, staffing issues; but decisions and use of public funds must be transparent. The legitimacy of governing requires the ability to make informed decisions, but also to have effective oversights. Complete disclosure on public funds might give certain individuals advantages in bidding for projects, zoning, hiring, etc. The complexity and volume of public administration issues has, though, changed the paradigm and ability for the public to be part of every decision. To prove either side of the argument, the sensitivity and impact needs to be assessed -- there is no blanket rule of everything being transparent, or everything being private; it is dependent upon the sensitivity and overall impact of the issue at hand.

3. Sources: Hunold, C. And B. Peters. (2004). "Bureaucratic Discretion and Deliverative Democracy." Transformation in Governance. IGI Publishing; Holzer, M. And K. Yang. (April 1, 2005). "Administrative Discretion in a Turbulent Time: An Introduction. Public Administration Quarterly. Cited in: www.highbeamresearch.com.

4. How does a cost-benefit analysis used in the determination of due process?

Using, for example, Miranda v Arizona, a cost-benefit analysis is used to determine due-process in the sense of the decision's impact on law enforcement and the community needs to be taken into consideration before a ruling of using Miranda, 5th Amendment Rights, and basic procedures. The Rehnquist Court's decision in the idea of cost-benefit, despite Justice White's suggestion of inconsistency, holds that if the benefits are considerably less and the costs are considerably higher, different legal approaches are necessary. In New York v Quarels, however, the Court concluded that because of the nature of the emergency, the benefit to public safety of dispensing with Miranda rights outweighed any consequences, but did remark that the Defendant could still argue that a confession was involuntary under traditional Due Process Standards. The totality of the issue, for instance in Dickerson v U.S. shows that the characteristics of the particular interrogation need to fit the test of totality of circumstances.

Sources: Miranda v Arizona, (1966), 384 U.S. 436, Cited in: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html; New York V Quarles (1984) 467 U.S. 649, Cited in: http://www.enotes.com/american-court-cases/new-york-v-quarles; Dickerson v United States, Opinion 99-5525, Cited in: http://www.law.cornell.edu/supct/html/99-5525.ZO.html

5. What is meant by the "right to notice" with respect to administrative hearings?

"Right to Notice" is a legal statute designed to ensure that the party being accused of something has adequate time to prepare a defense, be notified of procedure, or otherwise warned that a hearing or court date is set. Unless this right is waived in the workplace, any administrative hearing or high level disciplinary procedure, the employee has the right to counsel, and adequate time to prepare. Times vary per state, usually 10-30 days depending on the type of issue at hand.

1. Sources: www.lawyers.com; "Due Process of Law," Cited in: http://www.cs.state.ny.us/pio/hearingofficermanual/chapter03-dueprocess.htm

Unit 3 Questions

2. Before agency rulemaking can occur, certain procedures must be followed according to the APA of 1946. List and explain those procedures.

The Administrative Procedure Act of 1946 governs the process that federal administrative agencies must follow. It applies to all federal agencies except for those that are expressly exempted, and was enacted because, after the numerous agencies created during the Roosevelt Administration, Congress found that often laws created administrative agencies but failed to distinguish between the legislative and executive functions of those agencies. Procedures following must be in line with Subchapter 11, 551-559, and the amended nature of the Freed of Information Act (1996). They are Open information available to the public about rule in consideration, impact statement, open meetings, adjudication, hearing procedures, determinations of licenses, and effects upon other laws and subsequent statutes.