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Date Created: 12/07/15
POLITICAL SCIENCE NOTES FOR TEST 3 Regulation was considered to be unconstitutional up until 1877. When the case of Munn vs. Illinois (1877)(Granger movement)- supreme court determined that regulation was constitutional, that it wasn’t a taking of property based upon the principle of the common law of utilizes, that if you do business in the public interest, the public has the right to regulate it. Grangers were requesting that Illinois passed this. Trouble was that Munn vs. Illinois was common law, and common law is much less effiecient than statutory law because constiutionaly courts are restriceted to cases and controversies, they can only deal with the narrow issue before them, they cant consider that issue in the context of the whole. Theyre restriced to dealing with 1 slice of pizza, they cant consider the implications of the entire pizza. Munn vs. Illinois dealt only with the grain farmers, the state of Illinois, and the rail road in Illinois, so they turned to congress, people who deal with statutory law. They can consider the entire situation, not just 1 slice. So the court turned to congress, and congress took up the issue and dealt with it (slowly 10 years) but they came up with the first regulatory act, The interstate commerce Act (ICA). Along with this act, they established the first regulatory agency, the ICC. The ICA was established to regulate all forms of transportation in the entire country, much more efficient. So regulation is constitutional. We now have the ammunition that we need to approach not only the railroad monopoly but all monopolies, and all corruption since it exists everywhere in the country. As a result, a new movement, The progressive movement, where regulation is used to address corruption wherever it seemed to exist. While regulation is constitutional, regulations are law. Congress is responsible for making law, it’s fine at first. They pass a law and establish a regulatory agency and that’s that, but as time goes on, the end of the 19 century (rapidly industrializing), everything evolves. Society moves along with it. Before long, while congress is entitled to make regulation, some of the issues that are to be dealt with are too complex for congress to deal with. After all, professionally congressmen are lawyers. They know the law but that’s all they know, and that’s all they’re expected to know. So when they’re faced with a complex issue that’s outside their knowledge of law, what are they to do? Gets to the point where they can’t deal with it anymore, and when that happens, they turn to the agency with staff of experts in that particular area. The same thing is happening with the courts, judges are lwayers. Theyre knowledge outside the law is limited, so when a compelx issue comes before them, they can quickly become dysfunctional. The court will have to rely on expert testimony, and court cases turn into circuses of opposing expert testimony. So judges went to the appropriate administrative agency wherer the expertise was. They asked them to review facts of the case, and give them a recommended decision. But as time went on, things became more complex. For congress to simply say to an agency “please draw up these regulations for us” and for court to say “ please review these cases” only functioned for a while until our next great constitutional crisis, which occurred during the great depression. The new deal was almost fanatically opposed by 4 of the Supreme Court justices. They thought it was the end of the nation. Howewver, they were handicapped because there was only 4 of them, and in order to enforce their judgmenet, tthy would have to recruit a swing vote. They would have to find a 5 member of the supreme court to agree with them, but they managed it. In 1932, they began to attack successfully the new deal. They started by attacking judicial action. In the case of Crowell vs. Benson (1932) , which the 5 swing vote, marginal majority, they determined that administrative agencies could not assist in deciding cases. This is strictly for courts. Administrative agencies are a apart of executive agencies, they’re not entitiled to review issues and make decisions. This is a violation of sepeartaion of powers. They waited a while and attacked the deal again with a pair of cases, A.L.A schecter poultry company vs. US(1935) and Panama Refining Company vs. secretatory Ryan (1935). They said in these 2 cases that administrative agencies could not assist in making regulation and making the law. They were entitled to enforce the law, but not make the law. Very similar to what happened in Munn vs. Illinois. Schecter was a poultry farmer, and the agency wanted to regulate poultry prices. Schecter sued on the bases that reugulation of prices of poultry would cut into his profit and take his property without compensation, theregore unconcstiutional. Panama refining had to do with fuel oil around the country. Fuel oil is constantly moved around the country due to meteoric positions. The department of the interior secretaory ryan were seeking to limit the prices for storing this oil to keep prices of fuel oil down. Regulating of prices that can be charge for storage of fuel cuts into profit without compensation is unconstituitional, so the court agreed with them. Theses 3 cases completely destroyed the national recovery act. The national revoery act was depenedent on administrative agencies. To get out of depression, gov. needs to spend money by making these agencies. These agencies had to have the ability to make regulation because thy were the only ones who knew how to do it, and they interpreted them. But these 3 cases terminated the new deal. FDR went on radio and explained to the country that the supreme court seemed fit to destroy the New Deal, and that he as president wasn’t going to allow to let it happen. He said he was going to use his second power as president to add cease to the court, and appoint people who were in favor of the new deal. This was known as court packing scheme. As it turns out, we will never know. He didn’t have to pack the court because the court did a turnabout, tracked by 4 cases like a jucidical [ing pong match known as the 4 Morgan vs. US (1936),Morgan Vs. US(1938), US vs. Morgan (1939), and US. VS. Morgan (1941). Same 4 members of the court. Morgan was a stalkyard owner, and the department of agriculture was seeking to regulate stock yard prices, keep down the price of food in the middle of the depression. So Morgan thought that the time was right to pose the old issue that regulation cut into his profit, took his property with no compensation. Morgan sued, the case first went to the lowest level of the court system, circuit court. Circuit court disagreed, said that this is the bottom of the depression and people have every right to limit price of food prcies. He appealed to . went to supreme court. 4 members of court were unable to easily persusade for another member of court to vote with them so they had to compromise with somebody. That compromise was a stalling tactic because what they agreed to do was find that the procedure was flawed in the rate making, that the secreeatry of agriculture had not personally presided over the rate making periods which is ridiculuous. Certainly secretary of agriculture was under siege of the time. Hardly had the spare time to make the proper rate making, so what he did was send an assistant secretary out to make an estimate of rate making hearings and send them back to him so he can make a decision. So the court said the procedure was flawed because he personally didn’t go out there. So they sent it back to circuit court, but circuit court said no so it went back to supreme court. But at this point, (1939), the court corrected itself unwillingly. One of the opposed memebers of the supreme court died leavinga vacany. So FDR appointed Felix Frankburger, so now 3 of those original 4 memebrs who were opposed to the new deal finding 2 more swing notes would have been impossible. In Morgan 4 (last one), the court sided with people, and Felix wrote the courts opinion saying that administrative agencies are full partners in the governmental process meaning that administrative agencies did constituitionally have the power to make rules (law) as well as their constitutional duty to execute the law, and the power to interpret the law (judicial power). the new deal have been saved, but if administrative agencies had all 3 powers of government, that meant tyranny. We had the makings of a police state. So, FDR called his attorney general and said that they needed to preserve the power to make law, execture, and interpret in administrative agencies. They need all 3 pwoers for gov. to function, but at the same time, they must protect their individual rights, they must protect the people from tryanous agencies. They must find a way to constrain agencies, to make them accountable to the people. Once administrative agencies are in the civil service, it’s almost impossible to get rid of them. While we need tthese powers in the administrative agencies, they must find a way to constrain them. The attorney general formed a commison, The Attoryney General’s Commission on administrative procedure . Procedure because if an administrative agency became tyronous and took advantage of these new powers given by supreme court, the fundamental rights (life, liberty, and property, john locke) would suffer. Those fundamental rights are protected in the constirution in the 5 and 14 amendments. Life liberty and property can’t be derived without due process. That must be the way to approach this problem, through processs. The matter of procedure. What we must do is develop procedure related to each of these activities that these administrative agencies are normally not entitled to, making and interpreting law. The attorney general’s commission was working on this. In the interim, 2 cases showed up that made this problem, SE.C.. v. Chenery (1943), S.E.C. was established to regulatie the market. Chenery was an insider trader, and the SE.C. itself was hearing the case. 3 fat old commissioners during the hearing, one of them said to journ the hearing and go somewhere in private and discuess chenery’s fate over martinis. The next day they accused him of being guilty and fined him and took away his license. Well, the supreme court quickly reached down and brought this case up, they said it wouldn’t fy. Although S.E.C. had the power to interpret the law, they had to do it with due process. This means that they had to base their decisionon on a record of the facts of the case, all of the facts and nothing but the facts. You can’t rely on x party communication. You can’t use other people’s opinions for your decisions. Evidence must be presented before you publically, and be a part of thre record, and base your decisions only on those facts. Example why common law is less efficient than staturory law. This only addressed 1 due process requirement. Well the following year in the case of Yakus vs. US.(1994). Result of that awakenening that we were going to win the WWII. The people were going to be buying stuff that they couldn’t, as a result, congress established a wage and price commission. We didn’t understand the first time that they don’t work that well. The wage and price commission had an enormous job to do, because you can’t just pass blanket policy, 1 policy that covers the entire nation. It would be impossible to legisltate a blanket policy. Ex: subsidized law doesn’t work because of different standards of prices in stages. Can you imagine in 1944 of wages? Prices were different in every state. $1000 in manhattan is different than $1000 in texas. Yakus said that a wage and price commission would limit his property and business, this time though when the supreme court got it, said Yakus was wrong. Not only are administrative agencies able to propagate law rules, they have broad discretion. We were close to enabling a police state, but just in time, the attorneys general commission completed its studied and presesneted It to congress, and they saw it as a monument clarity. Congress made it the Aministrative Procedure Act (1946). This was confided in section 550 of the US. Code. What it does is establish due process to us when an agency is doing what they shouldn’t be doing constitutionally under the separation of powers, so in order to recover us in these aspects, due process under each of those activites is established under the A.P.A. When the administrative agencies make a law, rule making, there are due process requirements that make them accountable to us : 2 requirements, 1) they have to tell us what theyre going to do. They have to give us adequate notes, and 2) after they give us adequate notes, they have to give us an opportunity to comment. A federal agency tells us what theyre going to do by the federal registrar(federal gov.). For states who enacted their own administrative acts, it the Florida administrative weekly. If you think you are affected by that rule, down at the bottom rule, will be an invitiation if you have a comment on this rule, send it within a certain amount of days to some person, and that person has to respnd to it and make it a part of the record. Occasinaolly they will schedule a public hearing. Ex: pythons in the everglades, they eat everything. Well U.S. fish and wildlife service is considering adding 5 species of the world’s largest snakes to the everglades. When the comments have been included in the revisions to the rule, then the rule is republished and it becomes law. Once it becomes law, you’re subject to it. If you break the rule, you could be prosecuted by the agency. When the agency acts as a court, it goes from rule making to adjudication, which puts your individual rights in more jeapoardy as opposed to rule making. Rule making is legislative action to everybody equally, but adjudication, is solely your rights put in jeopardy unless you successfully defend yourself. The due process requirements under adjudication follow the due process requirements of the 6 amendment for criminals. Youre entitled to a notice of charges. If you’re detained, you’re allowed to make one phone call. Youre lawyer then calls the judge and asks for a writ of habeas corpus (show us the body/ tell the guy what he’s charged with or let him go). The police have 24 hours to charge a DUI or let the person go. They have to give you a notice of charge. Adjudication: 1. Notice of charges 2. Opportunity to be heard. 3. you have the right to face adverse witnesses (free ride if cop doesn’t show up) 4. opportunity to cross examine witnesses (in case cop shows up, you can cross examine him. You have the right to intimidate the cop) Cross examination is an art. When a person is really good at it, they graduate from being a lawyer to being an actor. They have a script 5. Right to counsel. In an administrative hearing, gov. doesn’t have to provide you with counsel as they do in criminal trials. You can bring your lawyer. 6. You have the right to an unbiased judge. This presents problem where administrative hearing is concerned because you might be able to see a slight conflict of interest in a case where the cop is conducting the hearing in your ticket trial. Conflict of interest. When the agency itself is prosecuting you , they usually find you guilty. What we do nowadays to avoid this conflict of interes,t independent lawyers sign up to form a pool of lawyers that can specify their specialty, and when a case comes up, they are appointed as a hearing officer. It’s their job to hear the case and make a record of the facts, which they can turn over to the agency with a recommended decision. 7. you have the right to a decision on a record. Important in SEC vs. Chenery because it prevents x party communication. You must have all the facts contained in a record. If you don’t like the decision, you can appeal it. You need the records for the appeal because they don’t hold a new trial, they issue a writ which is an order of the lower court to bring the record of the preceding and they apply a substantial evidence test to the record. Would a reasonable person reviwing this record come to the same conclusion. If the answer is no, it can be based on a matter of law or a matter of fact. If it’s a matter of law, it means one of the due processes procedures weren’t followed. However, if it’s a matter of fact in an administrative hearing, the court is loathe to double guess an administrative agency. If they see some apparent weakeness in the facts of the case, they’ll point it out and remand the case to the lower court based on agency to consider that and then remake their decision. 12/2 Executive budget (first phase)- the agencies spend the money. There are 14 departments in the federal government. Each agency puts it proposed budget. They submit their request to the departmental budget office. This is where they experience their first cut. The departmental budget office is under stress to keep numbers as low as possible. The agency is referred to the office of management and budget (OMB) to ask for more budget. In 1921, the brookines institute was asked to put together a process for budgeting. The budgeting and accounting act of 1921, they established a procedure, and along with that procedure they designated a special office, bureau of the budget, BOB. The BOB felt prey to Richard Nixon in 1972. Nixon, being paranoid, wasn’t satisfied wasn’t satisfied with BOB handling just financial matters, he wanted them to monitor all communications in government between agencies and departments. He changed the name to the office of management and budget. The OMB was a commission put together in 1937 to deal with the problem of the executive becoming the most powerful branch of government. During the depression of the supreme court, the supreme court said that administrative agencies have the power to make law, execute laws, and interpret law. The new period was the executive leadership period. the brown low commission in 1937 was put together to deal with that problem by reorganizing the executive branch. One of the changes they made was to establish to the executive office of the preside, EOP, they also put in OMB, as well as the council of economic advisors and the national security council (CIA), and the white house office WHO. OMB is might as well the president; trying to keep numbers low were budget was concerned. Agencies experienced a second round of cuts. They put together what was known as the executive budget. The executive budget is handed over to congress. Legislative phase (congress deals with budget, second phase)- The budget is supposed to go to the house first in congress because its designated as the recipient of the budget because the house of representatives was the only popularily elected institution of the federal government. The HOR must deal with all financial matters first. The house sends it to the Ways and Means Committee and they send it to the Appropriations committees who then send it to Appropriations sub committees. The agency has a good chance of getting back what they didn’t get approved. The house sends it to the senate which sends it to the Finane Committee. This gives agencies more opportunities to get money. Democratic party controls the senate, and the republicans control the house so house and senate don’t agree much on anything so there’s a joint conference committee that is inbetween the house and senate to settle the differences. The trouble started where the budget for congress was going to go over a trillion dollars. The current balance on our visa account is -17 trillion dollars. Before 1984, the way we did budgeting was we budget by a process known as incrementalism. It means that if your agency has a program that’s established and the next fiscal year you project budget, you add an increment. This is why government agencies are always loathed to never spend all their money. The concurrent resolution still didn’t settle between house and senate. By 1986, congress was unable to reach an agreement, they couldn’t get a budget. The budget is all important, because without a budget, government has no money. In 1986, the cold war was still going on, but we couldn’t allow the government to have no money. So we had a continuing resolution- we woud spend into the new fiscal year without having a budget as the same rate we were spending in the previous fiscal year. This sort of avoided the problem. But in 1989, SOVIET UNION collapsed. No longer did we have a pressing security problem. The economy was so good we had surpluses. OMB established the congressional budget office CBO. It was supposed to answer questions congress had Execution phase (actual spending phase, third phase)- From senate to treasury, and they pay the bill. The president has power of impoundment. They an determine whether funds are no longer needed, and they can be impounded and moved over to another program that’s more worthy. Trouble is that Richard Nixon abused the powers of impoundment. Nixon had advanced money for 2 projects that congress eliminated, the B1 bomber and the Super Sonic transporter that was built to compete with concord. Congress immediately cut that. He impounded highway funds and transferred that money over to the B1 bomber and the SST. Highway funds classify as principle port barrel. That’s how you get reelected. Audit (4 phase, makes sure money is spent right)- Genreal accountability office GAO. It doesn’t exist in the executive branch; it’s an agency that doesn’t come under the president; it assists congress in its oversight functions. it’s one of the checks and balances. When general dynamics submitted an invoice, and the nacy signed off on the invoice, the department signed off on it and the treasurey paid for it. It was discovered that the work hasn’t been done. We have financial auditing and 2.program auditing- nothing is sacred. Auditor general deployed a programmed auditing team to look into the business. Showed up at high way patrol office, but audit was expanded to include the entire office of transportation. Audits can take years to complete, but this program audit team were busily at work and one day one of them took a break and she saw the highway patrol handbook. Shrdpicked it up and starts to look through it and she got to the 3 page saying who may be a FL highway patrolman. She looks at the qualificaitons. Test Policy models onward 13-18 ch key terms
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