Give an example of a property interest that an administrative agency could take action on. Please state why it is a property interest and what agency would likely regulate it.
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Assignment: Read Chapters 4 and 5.
Chapter 4: The Requirement of Fairness.
One of the most important concepts found in dealings with any government entity is
Due Process
. Because administrative agencies act as a branch of government that enforces rules (executive), makes rules (legislative) and reviews its own decisions (judicial), the requirement of Due Process is even more important. Due Process takes many forms when dealing with administrative agencies.
Procedural Due Process
is what the agency must do before (the process) depriving a person of life, liberty, or property.
Substantive Due Process,
on the other hand, deals with rules that the agency must follow when depriving a person of life, liberty, or property.
What protected rights can an agency take action on? For example, administrative agencies never have the authority to take a “life.” That is limited to criminal courts and the imposition of the death penalty. However, when actions taken by agencies impact an individual’s ability to survive, it is considered a life-threatening act, such as depriving a person of welfare benefits.
In the context of liberty, agencies can impact someone’s liberty as with the Immigration and Naturalization Services’ authority to detain illegal aliens. In addition, a person on probation is entitled to a hearing before probation is revoked.
Property deprivation is the most common of the “takings” that implicate due process concerns. Taking one’s driver’s license, hunting license, or professional license, implicate the due process rights afforded by the Constitution.
One of the most debated and often litigated issues has to do with government employment. Unlike non-government employment, which is usually “at will,” non-probationary government employees usually enjoy a protected property interest in their continued employment. Government administrators must comport with due process requirements if they seek to suspend or terminate a non-probationary government employee. Typically, the employee is afforded a right to contest the proposed action and usually has the ability to have a neutral third-party decide whether the suspension or termination was appropriate.
Certain basic components are common to all administrative agency action that concern the taking of life, liberty, or property.
Hearing
are usually two requirements that every agency must follow, except in extreme circumstances. Notice must be sent to the person
an agency may take formal action.
Hearings
are also required, however, the type of hearing and the timing of the hearing is usually left to agency discretion as long as the affected party gets an opportunity to contest the action.
Chapter 5: Delegation.
As we know, Congress is responsible for creating the administrative agency by virtue of the
Enabling
legislation. Once created, the agency is responsible for implementing Congress’ wishes. Agencies make their own rules and regulations, however, the rules/regulations must not be in conflict with the
Administrative Procedures Act (APA)
or the powers granted to the agency via the enabling legislation.
So how does Congress create the standards in which an agency shall operate without the Supreme Court striking down the act of Congress as unconstitutional? The legal concept known as the
“Intelligible Principle”
is the standard in which the courts apply when looking to the power given to the agency by Congress. In its most basic form, the intelligible principle states that Congress must provide sufficient standards to an agency to guide it in the administration of its duties. As long as the agency operates within the boundaries of the enabling legislation and the APA, the intelligible principal will likely be satisfied.
Can an agency delegate its authority to a private organization? Governments sometimes face issues that place tremendous strain on budgets, prompting the government entity to seek relief from private sources rather than in the form of tax revenue. In Florida, a private company runs a significant majority of prisons in the state. Although the entities are run by private companies, they function as an arm of government in the sense that they are replacing the government in one of its core functions. However, some government functions cannot be delegated to private entities. For example, conducting criminal trials is one of those non-delegatable functions of the government.
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