Administrative Law - Week 3 PDF

1\. Constitution and Constitutionalism The term "constitution" comes from the Latin word *constituere*, meaning to arrange, to establish. From the etymological point of view, therefore, it is used to describe the way in which the state is organized. In fact, the term "constitution" is used in sever...

1\. Constitution and Constitutionalism The term "constitution" comes from the Latin word *constituere*, meaning to arrange, to establish. From the etymological point of view, therefore, it is used to describe the way in which the state is organized. In fact, the term "constitution" is used in several meanings. It is most commonly referred to as the basic law of a state, endowed with a special legal force that distinguishes it from other laws. Constitutionalism initially (17th-19th century) was a term describing a system of government that introduces [a constitution as a limitation of the power of the monarch] and is opposed to absolute monarchy. The beginnings of constitutionalism took shape in England after the revolution of 1689 (there was no written constitution, however), and from the end of the eighteenth century, constitutionalism was gradually introduced in Western Europe. Currently, constitutionalism is defined as a political system based on the special position of the constitution as a written document with superior legal force, which is absolutely binding on all state organs and others entities involved in the governance process. The concept of constitutionalism also has a material meaning - it is not enough to base the state system on a written constitution, but it is necessary for the content of this constitution to correspond to the standards recognized by modern democratic states (building the state apparatus on the basis of separation of powers, ensuring political pluralism and democratic elections, guarantees of rights and individual freedom). Constitutional states can be divided according to various criteria, e.g.:  \- the structure of the state,  \- the form of government, and \-  the political regime. Until the beginning of the 18th century \"**Constitution\" was a descriptive and not a prescriptive document.** 2\. Constitution and administrative law constitutions not only claim to regulate the organization, but also the exercise of public authority; the local government obtains a constitutional basis for its activities and constitutional guarantees of its independence constitutional principles including the principle of separation of powers the system of sources of law regulates individual freedoms, rights and obligations and the means of their protection, indicating the limits in which these freedoms and rights may be exceptionally restricted. defines the basic principles of public administration control and establishes the bodies of this control eg: courts (also administrative courts), ombudsman constitutions also regulate some detailed matters belonging to administrative law eg: the rules for introducing states of emergency 3\. The principle of separation of powers in the US Constitution The principle of separation of powers assumes that legislative, executive and judicial functions are separated from each other and entrusted to independent bodies. The American Constitution ascribes the legislative power to Congress (Article I),  the executive power to the President (Article II), and the judicial power to the courts (Article III).  4\. Executive agencies in the USA 5\. Administrative agencies and executive functions Agencies implement and enforce law they pass, make decisions. Monitor of compliance via inspections and disclosure schemes; regulatory agencies extract and analyze reports from an industry on issues such as pollution levels, safety incidents, and malfunctions [\[1\]](applewebdata://79AB3155-7F95-438B-84EC-CBA74DBAFCEE#_ftn1) . 6\. Federal agencies and the legislative branch **We can distinguish three types of rules the agencies make:** \- legislative rules, \- interpretative rules,  - general statements of policy.  Legislative rules have the same effect as statutes. Interpretative rules and general statements of policy bind agency employees but do not bind members of the public. **The non-delegation doctrine** The non-delegation doctrine is a principle that Congress cannot delegate its legislative powers to other entities,  typically to administrative agencies or to private organizations.  Examples when the US Supreme Court struck down provisions using the non-delegation doctrine: Panama Refining Co. v. Ryan (1935). Under the authority of the National Industrial Recovery Act, the Roosevelt Administration had issued a code of "fair competition" for the petroleum industry and began the process of setting production quotas for individual oil producers. The court ruled that "Congress has declared no policy, has established no standard, has laid down no rule," but merely delegated its lawmaking function to executive officials. A.L.A. Schechter Poultry Corp. v. United States. The court Court struck down a provision of the National Industrial Recovery Act under which the Administration had created a "Live Poultry Code" to regulate the activities of those raising, buying, selling, and slaughtering chickens. 7\. Agencies and Judicial Functions The Administrative Procedure Act regulates the adjudicatory (formal) process to some extent. Administrative agencies imposed sanctions. A typical procedure held by many federal agencies is that the agency charges a person with a violation of law and then sits as judges to decide whether the defendant committed the violation.  8\. Political question doctrine The political question doctrine asserts that some issues to be brought before the judiciary shall be exempt from judicial review and the scrutiny of the courts due to their political nature and constitutional affiliation to other branches of the government. PQD in the USA  The Court had no power to review Executive actions that did not implicate individual rights.  To determine political questions, the Supreme Court asks not whether the question has political repercussions, but whether the Constitution has committed the question\'s resolution to one or both of the political branches instead of committing its resolution to the judicial branch (Pellegrino v. O\'Neill, 480 A.2d 476, 482 (Conn. 1984). PQD in the UK Miller/Cherry, \[2019\] UKSC 41: -Courts have the particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. \- Every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie.