Unit 2 Structures of the Law Part 2

Last week I threw a lot at you on jurisdiction, both subject matter and personal jurisdiction Any questions?

Plan for this seminar For the next hour we will be taking a closer look at 1. Legislative branch 2. Executive branch 3. Administrative Agencies

Legislative branch Has the primary responsibility for enacting statutes We have both federal and state legislative branches Typically we have a House and a Senate (Nebraska has only one) They are our elected representatives

Legislative branch We can divide Congressional legislative authority into two categories 1. Enumerated powers which are the powers specifically mentioned in the Constitution,,either federal or state 2. Implied Powers which are those powers necessary to carry out the enumerated powers. Essentially under the doctrine of “implied powers” there is no area where the federal Congress can not exercise some form of control if it chooses to do so

Legislative branch Under the legislative rules “bills” ( proposed laws) may originate in either the House or the Senate The only exception is that bills to raise revenue must originate in the House When a bill is submitted it is assigned to a Congressional committee for discussion and possible approval Most bills do not make it out of committee

Legislative branch If a bill makes it out of committee it is voted on by the House or Senate. If it passes it is sent to the other one house of Congress The process of submitting it to a committee etc is then repeated Bills must pass both the House and the Senate in an identical form before being sent to the President for signature

Legislative branch Bills sent to the President can be 1. Signed in which case it becomes law (Statute) 2. It can be vetoed but a veto can be overridden by a 2/3rds vote of both Houses of Congress 3. If the President neither signs nor vetoes it in 10 days it becomes law automatically

Legislative branch Over the years we have seen a lot of significant legislation passed by Congress Some examples include Antitrust laws Civil Rights law including affirmative action, Equal Pay. Title IX, ADA Etc Securities laws Labor laws like OSHA, Wagner Act which recognized the right to unionize etc

Legislative branch Social Welfare legislation like Social Security, Medicare and Medicaid, unemployment compensation, welfare programs Environmental legislation like the clean air act, clean water act, endangered species act etc

Legislative branch Contrary to what we hear in a lot of political ads for Presidency it is Congress or the state legislatures that really control the spending in this country Both parties in Presidential or other executive branch races have accused the other of being the “spendthrift” but reality is we have to put this burden on the legislative representatives

Executive branch Role is to be the head of their particular level of government President is considered the “head” of the federal government and a governor the “head” of the state They are tasked with the responsibilities of carrying out the law

Executive branch Much of their time is spent trying to persuade members of the legislative branch to carry out their policies. This can prove very difficult, as we have seen, when the legislative branch is controlled by the opposing party and there is little willingness to compromise.

Executive branch Many things which we generally associate with the judicial branch are in reality part of the executive branch. For example, law enforcement agencies, prosecuting attorneys, prison systems are part of the executive branch There are about 40,000 law enforcement agencies on the federal, state and local levels The executive branch also sits atop of that vast network of administrative agencies

Administrative Agencies Administrative agencies are created by the legislative branch through the passage of a law. As with any law, that bill had to be approved by the executive branch The purpose is to carry out governmental programs assigned to it by their “enabling” statute

Administrative Agencies Agencies generally have two broad scopes of power 1. To pass “regulations” in a specific policy area. These regulations have the same force and effect as a statute 2. Agencies are often granted a judicial role as well which means they will initially hear cases dealing with the regulations that it passed Does this dual function in an agency violate the “separation of powers”?

Administrative Agencies In Misretta v. United States, 488 U.S.361 (1989) the United States Supreme Court seemingly put and end to the debate that has persisted that agencies were being created in violation of the Constitution. The Court held so long as Congress “shall lay down by legislative act an intelligible principle to which a person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

Administrative Agencies The Mistretta case recognized that Congress can not do its job without administrative agencies and delegation to those agencies the job of “making law” was not unconstitutional Agencies are limited in their “rule making” to actions that are within the agencies control. The IRS can not establish rules for clean water nor can the EPA change the tax code

Administrative Agencies The agency rule making process is governed by the Administrative Procedures Act It requires agencies to publish a notice of rule making in the Federal Register, similar requirements are on the state level as well. The notice has to include a statement of the time, place, nature of the rule under consideration, legal authority for the rule and the terms of the proposed rule Before a rule can become effective there must be an opportunity for interested parties to comment on it either orally or in writing.

Administrative Agencies Agencies are also given authority to conduct investigations This includes the power to subpoena records and to compel individuals to testify as long as the testimony is not used as evidence in a criminal case Agencies may be able to conduct a warrantless “administrative search” as long as there is a substantial governmental interest, the warrantless inspection is necessary to further the regulatory scheme, and the inspection program must provide a constitutionally adequate substitute for a warrant For example a surprise inspection of a coal mine or a building site

Administrative Agencies There are a wide variety of sanctions available to agencies Some types are Cease and desist orders Civil suits Criminal prosecution Liens Forfeitures etc The nature of the sanction will depend on the rule and what sanctions were including in the rule making process

Administrative Agencies Agencies will often engage in disputes with the parties they regulate. In those instances they act like a judicial body Due process still applies including notice and an opportunity to be heard. Once agency remedies are exhausted, then the parties can go to federal court or state court for a review.

Administrative Agencies A lot of the actual governing and regulation in this country takes place in these agencies on both the state and federal level The Freedom of Information Act establishes the presumption that records in the possession of agencies and the executive branch are accessible to the public. That does not mean that all records are available only that the presumption exists.

Structure of the Law In this unit we have taken a look at our overall structure as well as the benefits and challenges it poses Next week we will be looking at the ethical rules that apply to the legal profession! See you then!