MIDTERM STUDY DOCUMENT _ ADMIN LAW .pdf

SESSIONS 1+2 | THE CONSTITUTIONAL POSITION OF THE EXECUTIVE What is Administrative Law? Can be defined as the law that disciplines the operation of the executive branch of government 2 Purposes: 1. Ensure the administration discharges its constitutional functions - From this perspective, administrat...

SESSIONS 1+2 | THE CONSTITUTIONAL POSITION OF THE EXECUTIVE What is Administrative Law? Can be defined as the law that disciplines the operation of the executive branch of government 2 Purposes: 1. Ensure the administration discharges its constitutional functions - From this perspective, administrative law is concerned with the effectiveness and efficiency of administrative action 2. Prevent abuse of power and keep the administration in check - From this perspective, administrative law is concerned with the tools that private acts have at their disposal to fight administrative action The position the executive occupies within modern constitutional systems Sorts of Powers ➔ Legislative ➔ Executive in respect to things dependent on the law of nations (executive branch) ➔ Executive in regard to matters that depend on civil law (judiciary) Why → There would be no liberty if the legislative and executive powers are united in the same person or in the same body of magistrates - There must be multi-lateral separation between the executive and the legislative powers - The alternative is dictatorship The Doctrine of Separation of Powers This doctrine is inherent to the democratic rule of law ➔ The legislative power makes laws ➔ The executive power enforces law ➔ The judicial power interprets and applies laws in cases of conflict Dimensions of the SOP ➔ Horizontal → separation between the legislature, judiciary, and executive - Different function allocated to each branch ➔ Vertical → refers to the territorial divisions of the state - Whether the state is federal, decentralized, etc. - Concerns separation between local and central powers - I.e., federal executive vs states’ executive - Three levels (all with their own judicial, legislative, and executive powers) - National level - Regional level (i.e., Catalonia imposed harsher social distancing measures) - Local level (i.e., Ibiza imposed drinking fines) Dimensions of the SOP 2.0 ➔ Functional - The functions carried out through the exercise of each power - Legislative making laws, executive applying them, judiciary interpreting and applying in case of conflict ➔ Institutional - These three functions should be allocated to different organs - Parliament → legislative - Government → executive - Judges → judiciary ➔ Personal - These different organs should be actually staffed by different people How to guarantee + protect the SOP → Federalist Papers - Madison - Independence → “the members of each department should be as little dependant as possible on those of the others” - Constitutional means + personal movies - In order to prevent a gradual concentral of the several powers in the same department - Give the administrators of each department the necessary constitutional means and personal motives to resist encroachments of the others Basic Constitutional Models - Legislative and executive branch intertwine - In presidential, parliamentary, and semi-presidential systems - Judicial branch is always kept independent Implementation of SOP in Different Constitutional Models Why does the degree to which adherence to the principle of SOP is actually acknowledged, vary from one system to another? ➔ Presidential - More in line with the SOP - The process of the parliamentary system described below does not occur in presidential systems ➔ Parliamentary - Members of the executive are themselves members of the legislative - Dependence between the executive and legislative is mutual - Executive requires the assembly’s confidence → PM depends on the legislative’s confluence - Executive may dissolve the assembly + call for new elections ➔ Semi-presidential Presidential - - President and members of the legislature are separately elected President has no authority to remove members of the legislature President appoints his/her cabinet of ministers President is the chief of the executive and symbolic head of government President is directly elected by people and answerable voters Parliamentary - - Semi-presidential (hybrid) PM may be elected to the legislature in the same way as all members PM is also an MP and directly responsible to the Parliament PM appoints cabinet ministers Cabinet ministers are typically legislative members from the ruling party/coalition Usually a clear differentiation between head of government (PM) and head of state - President popularly elected and endowed with meaningful powers President is head of state PM is head of executive President has the power, PM has no real power PM and Cabinet subject to assembly confidence - I.e., the Conservative Party decides they no longer hold confidence in Margaret Thatcher → she was forced to step down Difference between parliamentary and hybrid systems - Even though the distinction between the HOS and HOG exists in the hybrid model the president is popularly elected and has meaningful powers Principle of the rule of law - Private and public individuals should be subject to the law 2 implications for the executive 1. Executive is subject to the laws approved by parliament 2. Executive is subject to the independent control of the judiciary Formal/Thin Conception of the ROL (Rawls) - The laws approved by parliament must comply with all requirements (listed below) - Possibility of compliance - Laws that can actually be followed → accessible and a fair expectation - Regularity - Laws must be regular + provide legal certainty - Publicity - Law should be known so it can be followed - Generality - No exceptions are allowed → equal application to all - Due process - - Right to fair trial → this process must follow specific legal requirements Legality - Government officials should also be subject to the law → nobody is above the law Substantive/Thick Conception of the ROL - Effective recognition + protection of moral and political rights SESSIONS 3+4 | THE STRUCTURE OF THE EXECUTIVE The Head of the Executive Head of State vs Head of Government - Leader of the executive → head of government - Ceremonial figurehead → head of state - The distinction between the HOS and the HOH does not exist in all jurisdictions - But does exist in most, especially parliamentary democracies ➔ HOS → ceremonial figurehead (i.e., monarch or president) - External function → formal international representative of the state - I.e., signing treaties - Internal function → serve an integrative function as ‘figureheads’ who remain above day-to-day politics - Usually perceived to embody continuity and national unity ➔ HOG → holds the more powerful executive office, such as PM - In presidential systems (US, most of Latin America) President is elected as both HOS and HOG Some systems don’t attribute the function of the HOS to a single person, but to a collective body - I.e., Switzerland → does not have an HOS at all → exercised by government collectively Systems where this distinction cannot be easily applied at all - Distribution of functions based on different premises/made obsolete in practice - I.e., Iran → HOS + executive functions carried out by President + ‘Supreme Leader’ (above the President) Parliamentary Confidence Rule - The Cabinet must be at least tolerated in office by a parliamentary majority - Two ways to lose parliamentary majority 1. No confidence vote - Parliament votes to replace the current PM 2. Losing confidence of your own party - The PM’s own party forces the current PM to step down and replaces them - Distinction between the two ways - No confidence vote requires new elections → if Parliament is led by a different party - No new elections required when confidence of own party is lost - I.e., Margaret Thatcher → removed by her own party, no new elections → a replacement put in place by the same party The Cabinet What is a Cabinet? - Group of important government ministers who work together to make decisions + back the executive - Roles of ministers vary from country to country → all play key role in shaping government policies - To define in a specific country → understand which officials are part of the exclusive ministerial group - Ministers can vary in seniority and roles Functional decision-making definition - Boils down to defining what the cabinet actually does - Cabinet is viewed in its basic capacity as the source of coordination of the government policy-making process - Coordination is the main function - But also democratic legitimation of government, creation of channels for political accountability, decision making Legal definition - Defines what the cabinet MUST be - Cabinet is a complex body made up of a number of distinct organs - PM, individual ministers, council of ministers as a whole - In all countries with the governmental makeup described above the three organs share: - The functions of the government - Administrative duties - Coordination of the processes required for both - Different Constitutions bestow somewhat different influences on the three organs - Assign them different functions in ways that are not always clear - Legal definition stresses what the cabinet must be in a twofold sense - Prescribes the way the cabinet is composed + the way its three organs ought to act - Presumes an equilibrium is reached among the three organs Ministerial Portfolios - Each member of the cabinet is normally responsible for a specific portfolio - Foreign affairs, justice etc. - Parliamentary systems → the HOG is responsible for allocating the portfolios among the ministers - Presidential systems → the president allocates (both HOG and HOS) - Allocation is usually a strategic decision made by the HOG - To ensure that each minister is responsible for a specific area that aligns with their expertise and the government’s policy priorities Ministerial Dependence - Ministers are politically appointed and individually or collectively responsible to the parliament - The ministers’ offices are linked to the government’s life - Dependence on the parliament and PM - If the parliament loses confidence in the PM the entirety of the executive steps down - A new cabinet is appointed - However, if new elections are not necessary the cabinet can technically remain - This is unlikely as the cabinet is essentially the PM’s ‘team’ - A new PM will want to appoint their own ‘team’ Significant differences between the French ministerial Model and Anglo-saxon departmental model - French model is closely anchored to the executive - The Anglo-saxon model is more flexible → based on a clear separation of political and administrative duties - No fixed number of cabinet members in either → usually around 15 ➔ Ministers → used in the ministerial model ➔ Secretaries → used in the departmental model Ministers (ministerial model) Secretaries (departmental model) The number of ministers is variable (around 15) The number of secretaries is variable (around 15) Ministers are supported by a cabinet consisting of members chosen by the ministers The departments’ internal structures consist of numerous complex offices with special autonomy, termed Administrations Ministers are personally responsible for the work of the ministry (the principle of ministerial responsibility) Each cabinet has a different internal organization (flexible organization) Ministries have political and administrative duties Secretaries do not usually perform the tasks of rulemaking or adjudication. Secretaries administer financial resources, oversee big infrastructure projects, and perform high administrative functions Each member of the cabinet is normally responsible for one specific portfolio Departments are usually immune to political influence The prime minister, as head of the executive, who allocates the different portfolios amongst ministers The secretaries exercise their duties through delegation from the head of government Two main differences: ➔ Political Influence - Ministries depend on the PM → anchored to the executive → pyramid - Secretaries have more autonomy → less dependant on the executive → more immune to influence ➔ Flexibility - Ministerial model → everything is fixed, no freedom to organize themselves freely - Departmental model → more autonomy, can decide how to organize themselves The Administration The Administration is the complex bureaucratic apparatus on which the government rests - The administration is all the staff below the cabinet → underneath the council of ministers Administration Cabinet Staffed by civil servants and other public officers Staffed by politicians and political elite Selected through an independent process to work for the administration and paid through taxes Selected through electoral processes Performs only administrative functions, not a political body Both a political and administrative body, performs both functions The Structure of the Administration - It would be incorrect to describe the administrations of the UK, France, and Germany as a pyramid - There are administrative departments (i.e., agencies) separate from this ‘pyramid’ - BUT cannot be excluded when describing the administration - Territorial considerations → some competences are not performed at national level - Instead performed regionally or locally State Administration Models ➔ Federal States - Characterized by a central government, regional, and local authorities - Both with their own legislative and administrative competencies - Exercised independently and recognized by the Constitution ➔ Regionalized or ‘Quasi-Federal’ - Have established an intermediate/regional level of government with a wide set of competences ➔ States with ‘Northern Systems’ - Typically Scandinavian - Unitary countries where local governments have a wide range of responsibilities in relation to regional development ➔ Unitary States - Centralized power - Although legislative and executive power may be given to regional and local organs these remain subordinate to the central legislature, may be overridden by it Agencies Agencification → the creation of semi autonomous agencies: organizations charged with public tasks like policy implementation, regulation, and public service delivery, operating at arm’s length of the government. - An example of the above would be the creation of financial agencies such as the central bank - Emerging debate on the autonomy of such agencies - Many argue that regulatory and supervisory agencies should be free from political interference - I.e., the central bank is free from the government and financial services industry so it can fulfill its mandate to achieve and preserve financial sector stability Arguments for the independence of financial agencies ➔ Political Influence - Hinders the ability of regulators to regulate independently - Causes or worsens financial instability ➔ Regulatory Capture - Regulators should not be influenced by the financial industry - Regulatory capture threatens the identification of public interests with industry interests - Undermines the effectiveness of regulation ➔ Accountability - Financial agencies can be held accountable more effectively if they are independent ➔ Financial Stability - Independent regulators increase the efficiency and effectiveness of regulation SESSIONS 5+6 | THE FUNCTIONS OF THE EXECUTIVE The Functions of the Executive ➔ Enforcement of the Law - Primary function of the executive - Implementation of the laws and policies (licenses, sanctions, etc.) - i.e., the Supreme Court of the Canary Islands revokes the annulment of the land concession to install a giant telescope in La Palma (Puntagorda) The City Council of Puntagorda → administrative agency in question - Administrative act in question → administrative concession of the land to the IAC (astrophysical institute building the telescope) - The City Council is enforcing the concession - I.e., the city council of Getafe demands that the government of Madrid quickly process sanctions against the Corrugados for its discharges - Two administrative agencies: the city council of Getafe and the Government of Madrid - The administrative act in question would be the enforcement of sanctions by the Madrid Government against the company due to their failure to comply with the conditions of their license - Why do we say that a company receiving a license is the result of the application of the laws? - A company needs to obey the law and continue to do so in order to have the license - Authorities are obliged to follow the procedure set in the law so they’re granting the law when approving the authorization - The authorities cannot decide themselves to revoke a license or enforce a sanction → need to prove it legally ➔ Law-making - Introducing bills for legislation and approving administrative regulations → delegated legislation - I.e., the right of the executive to propose bills for legislation - E.g., Biden urging congress to pass his economic plans after weak jobs report - I.e., the right of the executive to override/veto bills - E.g., Trump vetoing a bill subverting border patrol security rules passed by congress ➔ Policy-making - Setting the policy direction of the government - I.e., Obamacare ➔ Financial Functions - Preparing the budget and proposing the levy of new taxes or changes in tax structure - I.e., Boris Johnson announcing National Insurance and divided tax hike Case Study 1: German Sausage Cartel Facts - Decades-long collusion between sausage manufacturers in Germany - Agreed to jointly implement price increases → able to demand higher prices for their products - Bundeskartellamt enforced sanctions → ranged from a few hundred thousand to millions Bundeskartellamt - German antitrust/competition authority - As per its function, nature and powers - Function → enforcing German statutory rules for competition - Nature → regulatory body responsible for maintaining fair competition - Powers → requiring undertakings to being an end to infringements, imposing administrative fines - **when the effect of the restrictive or discriminatory conduct or of a competition rule extends beyond the territory of a Land The Wrongful Conduct - The producers were involved in illegal price-fixing agreements - This conduct is in violation of the German Federal Act Against Restraints of Competition - It prevents, restricts, or distorts competition What authority decided that the companies deserved a sanction? - The guidelines of what constitutes conduct deserving of a fine is decided by the legislative and outlined in statute - While the Bundeskartellamt is responsible for imposing said sanctions - The Bunderskartellamt calculates the exact amount of the fine on a case-by-case basis - But has to remain within statutory guidelines imposed by the executive What administrative power was exercised by the Bunderskartellamt? - Sanctioning power → the power to enforce sanctions as a result of a law infringement - “ a reaction of an administrative authority to a law infringement” Sanctioning Power The power to enforce sanctions as a result of: law infringement, such as penalties - the temporary closure of the activity or the premises - the prohibition to be granted with public contracts or subsidies, among others