week 3 – Discretion

question

Formal Agency Action

answer

actions by administrators that fall within prescribed (usually written) procedures, as dictated by legislative statutes, court rulings, and/or agency rules and regulations

question

Adjudication

answer

where agencies exercise quasi-judicial powers resolving disputes, imposing sanctions, or negotiating settlements

question

Rulemaking

answer

quasi-legislative powers, producing a rule

question

informal agency action

answer

majority of agency action. "the lifeblood of the administrative process". refers to any action or inaction that does not entail a trial-like procedure or a rulemaking process

question

What is discretion

answer

the power to make a choice among different actions or alternatives. it is necessary when laws arent detailed enough to apply to an individual action. usually applied for informal processes

Discretionary actions by administrators are informal administrative acts within the scope of an administrator's formal authority

question

Dangers of agency discretion

answer

too much discretion may lead to agency actions that are arbitrary and dictatorial
too little discretion may lead to ineffectiveness in daily decision-making

question

examples of agency discretion

answer

- prosecutorial/enforcement
- Rulemaking and policy
- claims and applications
- tests and inspections

question

what procedures exist to help protect individuals when agencies act informally

answer

- public accountability
- judicial review (limited)

question

prosecutorial discretion

answer

executive agencies performing law enforcement functions which can include prosecutorial functions

limited by constitutional restrictions on race, gender, religion, and sex

question

Rulemaking and policy discretion

answer

agencies are often empowered by congress to promulgate regulations to further mandate. AN agency that exceeds its statutory mandate is said to be ultra vires

question

Chevron Doctrine

answer

The general rule that federal courts should defer to agency rules that are based on reasonable interpretations of ambiguous statutes

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What are the facts?

answer

In the clean air act amendments of 1977, congress established a number of requirements directed to states that had not yet attained the national air quality standards established by the EPA. interpreting the act, the EPA decided to allow "nonattainment" states to treat all pollution-emitting devices within the same industry plant as though they were encased in a single "bubble"

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What was the issue and the holding?

answer

Is the EPA decision based on a reasonable interpretation of the statute?
Holding: Yes

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What was the courts rationale?

answer

Congress left certain terms open for interpretation and the EPA was well within their authority to fill in the gaps with a fair and appropriate policy

question

Constitutional limits on discretion

answer

equal protection and due process

question

Protective Action

answer

certain agencies are charged with the protection of the health, safety, and economic well-being of individuals and the public. May include: recalls, seizure of goods, suspension of licenses, cease and desists, actions for enforcement of civil penalties

question

When it comes to tests and inspections, what WILL the courts review?

answer

the validity and reliability of the test

question

When it comes to tests and inspections, what WONT the courts review?

answer

where or when tests are to be conducted, whether tests should be conducted

question

What is the greatest power possessed by a public administrator?

answer

the power NOT to act

question

Mediation (Conciliation)?

answer

- usually voluntary
- assists parties to reach resoltuon

question

Arbitration?

answer

- can be mandatory
- arbitrator renders decision
- decision can be binding

question

summarize the position of Phillip Howard in, The Death of Common Sense

answer

discretion is inherent and a necessary element of public administration. it is also needed to ensure humanity in governance

question

examples of administrative agencies

answer

- Social Security Admin (SSA)
- the Equal Employment Opportunity Commission (EEOC)
- Bureau of Citizen and Immigration Services (BCIS)
- Immigration and Naturalization Services (INS)

question

Social Security Administration (SSA)

answer

promulgates regulations concerning the provision of income for totally disabled people and also determines who is or is not disabled

question

The Equal Employment Opportunity Commission (EEOC)

answer

promulgates regulations and guidance dealing with sexual harassment and also decides whether probable cause exists to pursue a particular claim of harrasment

question

Bureau of Citizen and Immigration Services (BCIS)

answer

helps to set immigration quotas and makes individual decisions regarding deportation

question

three-step analysis needed to review an agency decision as an abuse of discretion

answer

1. look to the legislation that gave the decision-making authority to the particular agency and determine if the administrator acted within limits
2. determine if there was a clear error in judgement. if no error, the court cannot substitute its own judgement without abusing discretion
3. if the administrator followed procedural requirements

question

reviewing ADMINISTRATIVE decisions for abuse of discretion

answer

courts tend to give great deference to the administrator or agency

question

Example of an administrative decision that is difficult to reverse or challenge?

answer

one made by the Board of Immigration Appeals to uphold an immigration judge's decision to deport an alien. The BCIS is granted a lot of discretion so proving abuse of discretion is extremely difficult and rarely occurs unless the alien can show either failure to follow procedure or clear error of judgement

1 of 29

question

Formal Agency Action

answer

actions by administrators that fall within prescribed (usually written) procedures, as dictated by legislative statutes, court rulings, and/or agency rules and regulations

question

Adjudication

answer

where agencies exercise quasi-judicial powers resolving disputes, imposing sanctions, or negotiating settlements

question

Rulemaking

answer

quasi-legislative powers, producing a rule

question

informal agency action

answer

majority of agency action. "the lifeblood of the administrative process". refers to any action or inaction that does not entail a trial-like procedure or a rulemaking process

question

What is discretion

answer

question

Dangers of agency discretion

answer

too much discretion may lead to agency actions that are arbitrary and dictatorial
too little discretion may lead to ineffectiveness in daily decision-making

question

examples of agency discretion

answer

- prosecutorial/enforcement
- Rulemaking and policy
- claims and applications
- tests and inspections

question

what procedures exist to help protect individuals when agencies act informally

answer

- public accountability
- judicial review (limited)

question

prosecutorial discretion

answer

executive agencies performing law enforcement functions which can include prosecutorial functions

limited by constitutional restrictions on race, gender, religion, and sex

question

Rulemaking and policy discretion

answer

agencies are often empowered by congress to promulgate regulations to further mandate. AN agency that exceeds its statutory mandate is said to be ultra vires

question

Chevron Doctrine

answer

The general rule that federal courts should defer to agency rules that are based on reasonable interpretations of ambiguous statutes

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What are the facts?

answer

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What was the issue and the holding?

answer

Is the EPA decision based on a reasonable interpretation of the statute?
Holding: Yes

question

chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc (1984): What was the courts rationale?

answer

Congress left certain terms open for interpretation and the EPA was well within their authority to fill in the gaps with a fair and appropriate policy

question

Constitutional limits on discretion

answer

equal protection and due process

question

Protective Action

answer

question

When it comes to tests and inspections, what WILL the courts review?

answer

the validity and reliability of the test

question

When it comes to tests and inspections, what WONT the courts review?

answer

where or when tests are to be conducted, whether tests should be conducted

question

What is the greatest power possessed by a public administrator?

answer

the power NOT to act

question

Mediation (Conciliation)?

answer

- usually voluntary
- assists parties to reach resoltuon

question

Arbitration?

answer

- can be mandatory
- arbitrator renders decision
- decision can be binding

question

summarize the position of Phillip Howard in, The Death of Common Sense

answer

discretion is inherent and a necessary element of public administration. it is also needed to ensure humanity in governance

question

examples of administrative agencies

answer

- Social Security Admin (SSA)
- the Equal Employment Opportunity Commission (EEOC)
- Bureau of Citizen and Immigration Services (BCIS)
- Immigration and Naturalization Services (INS)

question

Social Security Administration (SSA)

answer

promulgates regulations concerning the provision of income for totally disabled people and also determines who is or is not disabled

question

The Equal Employment Opportunity Commission (EEOC)

answer

promulgates regulations and guidance dealing with sexual harassment and also decides whether probable cause exists to pursue a particular claim of harrasment

question

Bureau of Citizen and Immigration Services (BCIS)

answer

helps to set immigration quotas and makes individual decisions regarding deportation

question

three-step analysis needed to review an agency decision as an abuse of discretion

answer

question

reviewing ADMINISTRATIVE decisions for abuse of discretion

answer

courts tend to give great deference to the administrator or agency

question

Example of an administrative decision that is difficult to reverse or challenge?

answer

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week 3 – Discretion

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