1. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 1 Welcome to Administrative Law Unit Three : Preview Units 4 - 5 Unit Two Review Unit Three Preview Delegation

2. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 2 Unit Two Preview UNIT TWO : Types of Agency Discretion and the Requirement for Due Process Most administrative agency actions are informal in nature. However, this does not mean that agencies are free to act in a random manner. The constitutional concept of due process extends to agency actions. Unit Two introduced the ways in which agencies exercise discretion in making decisions and how due process applies when agencies make those decisions.

3. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 3 Unit Two Preview UNIT TWO : Agency Discretion The concept of agency discretion can be a double-edged sword. Excessive discretion can lead to arbitrary decision-making and abuse of authority. Too little discretion, on the other hand, can lead to unfairness.

4. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 4 Unit Two Preview UNIT TWO : Agency Discretion Americans are generally suspicious of discretion many agencies have promulgated vast amounts of regulation, creating a complex bureaucracy that is difficult to manage and often unfair. This is exactly the result hoped to be avoided by limiting agency discretion.

5. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 5 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is meant by the statement that “informal administrative procedures are the lifeblood of the administrative process” ?

6. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 6 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is meant by the statement that “informal administrative procedures are the lifeblood of the administrative process” ? It is the exception, not the rule, in both rulemaking and adjudication, that formal procedures must be used. In addition, agencies perform many functions that fall outside the rulemaking and adjudication models. These acts are governed by the rules concerning informal procedures. However, because these actions constitute the bulk of administrative work, informal procedures are the “lifeblood of the administrative process.” (Hall, 2009, Pg 38)

7. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 7 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is the primary reason agencies must select cases to investigate and prosecute rather than investigating and prosecuting all possible violations ?

8. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 8 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is the primary reason agencies must select cases to investigate and prosecute rather than investigating and prosecuting all possible violations ? Agencies do not have the resources to investigate every person and business for compliance with the law. (Hall, 2009, Pg. 40)

9. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 9 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is an advisory opinion ?

10. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 10 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is an advisory opinion ? Upon a request from a person regulated, an agency may issue a statement—an advisory opinion—expressing its interpretation of a law or explaining its policy, practices, or procedures (Hall, 2009, Pg. 49)

11. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 11 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is a declaratory order ?

12. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 12 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is a declaratory order ? The declaratory order is the administrative equivalent of the judicial declaratory judgment. Its purpose is to resolve questions of law that have arisen but have not yet been contested. (Hall, 2009, Pg. 50)

13. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 13 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is the relationship between discretion and fairness ?

14. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 14 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: What is the relationship between discretion and fairness ? Figure 3-2 The strict enforcement of rules can lead to unfairness in at least two ways: first, by enforcing rules when the objective of the rule is not satisfied; and second, by not acting when needed because the drafters of the rules did not foresee the problem. Discretion is necessary to achieve fairness. (Hall, 2009, Pg. 39)

15. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 15 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: There are two Due Process Clauses in the Constitution of the United States: the ____ Amendment, which applies to the Federal Government, and the ____ Amendment which applies to the states.

16. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 16 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: There are two Due Process Clauses in the Constitution of the United States: The 5th Amendment, which applies to the Federal Government, and the 14th Amendment which applies to the states.

17. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 17 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: Generally, due process requires that the government provide _____ and a ________ before depriving a person of life, liberty or property.

18. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 18 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: Generally, due process requires that the government provide notice and a fair hearing before depriving a person of life, liberty or property.

19. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 19 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FDue Process requires that all notices of agency action be given at least 30 days in advance.

20. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 20 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FDue Process requires that all notices of agency action be given at least 30 days in advance. False. Due process does not specifically require a certain period of time; rather, notice must simply be sufficient to allow a person to prepare for the hearing. A few days’ notice is rarely adequate, but a month’s notice normally is. (Hall, 2009, Pg. 66)

21. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 21 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FIn emergency situations, an agency may be justified in depriving a person of property without first providing notice or a hearing.

22. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 22 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FIn emergency situations, an agency may be justified in depriving a person of property without first providing notice or a hearing. In some circumstances, an agency may take summary action, usually to protect the public health and safety. In such instances, due process may not require preaction notice or hearing. When this occurs, though, there must be immediate postaction notice and a hearing. (Hall, 2009, Pg. 67)

23. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 23 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FAs a general rule, due process does not require that predeprivation hearings be conducted.

24. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 24 Unit Two Review Types of Agency Discretion and the Requirement for Due Process Review Questions: T or FAs a general rule, due process does not require that predeprivation hearings be conducted. True. The Due Process Clauses do not require trial-type hearings in all cases. In some circumstances, a person may be entitled to an oral hearing before an administrative law judge. In others, an interested party may be limited to submitting a written argument. Even when oral hearings are held, the Due Process Clauses do not require that trial-like procedures be used. In reality, many administrative hearings are informal. (Hall, 2009, Pg. 67)

25. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 25 Preview Unit Three UNIT THREE: Delegation What is the Federal Magistrates Act and why is it important?

26. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 26 Preview Unit Three UNIT THREE: Delegation Magistrate positions came into being through the Federal Magistrates Act and are therefore creations not of the Constitution but of Congress. The Federal Magistrates Act delegates certain responsibilities to magistrates and allows Article III judges to delegate additional duties so long as the delegations are consistent with the Constitution and other laws of the United States.

27. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 27 Preview Unit Three UNIT THREE: Delegation What are public rights and private rights?

28. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 28 Preview Unit Three UNIT THREE: Delegation What are public rights and private rights? Private rights are those between individuals which existed at common law. Adjudication must occur in a court. Supreme Court – District Courts Magistrates may not conduct trials in civil or criminal cases over the objections of a party. Public rights involve a suit between a citizen (usually a corporation) and the government concerning the enforcement of regulations by the government. Congress can delegate adjudication to tribunals, (magistrate judges, bankruptcy judges, military judges.)

29. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 29 Preview Unit Three Below is a summary of your assignments for this week. As you know, all of these assignments must be completed before the end of this lesson week. Read about delegation of authority, the Department of Homeland Security, and the United States Senate. Discuss what you have learned. (graded) Use citations and apply concepts from the text! Meet at the weekly seminar to further explore the concepts in this unit. (graded) Take a short Quiz. (graded) Submit a list of issues to be discussed in your Final Writing Project. (graded)

30. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 30 Preview Units 4 - 5 UNIT FOUR - The Rulemaking Process This unit introduces the process of rulemaking and how rulemaking differs from adjudication. Also discussed are the differences between formal and informal rulemaking and the procedures an agency is required to follow when engaged in rulemaking. Rulemaking is the process by which an agency carries out its legislative mandate. When an agency engages in rulemaking, it is creating law. In general, rulemaking is concerned with the administrative details of legislation. Agencies cannot make new laws or change existing ones, but through the process of rulemaking they add detail to laws passed by the Congress. It is important to realize that the bulk of law in the United States is made by agencies, not the state or federal legislatures. Assignment: Read about various facets of conflicts of interest: Chapter 4 - Ethics for the Legal Professional Practice by using the web links in this unit (graded) Discuss what you have learned (graded) Meet at the weekly seminar to further explore the concepts in this unit (graded) Take a short Quiz (graded)

31. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 31 Preview Units 4 - 5 UNIT FIVE - Midterm Week The Midterm consists of 45 true/false and multiple-choice questions. Take the Midterm Exam by the end of this unit (graded) Explore ways to use the academic support services. Note: There will not be a quiz, discussion, or seminar this week.

32. Kaplan University - Adjunct Professor Brian Tippens, J.D. - btippens@kaplan.eduSaturday, January 30, 2016 32 Adjourn Have a great week… “See” you on the Discussion Boards