Administrative Law Questions - Term Paper Example

Midterm Paper: Administrative Law Questions `Question-2 Oil Spill in the Gulf of Mexico: The Department of Energy (DOE) has hired underwater photographers and monitored the activities of the company to determine whether there is oil spill or any other contamination. Their concern in this case, just like the Dow Company case, is to “regulate, not compete” with any firm so that the possible oil spill that is hazardous to the public can be avoided (Harrington & Carter, 2009, p.146). The DoE does have powers to monitor and regulate the operations of a firm if it has reasonable grounds to believe that the safety of clean air and water standards are being compromised by a commercial activity and it is up to them to decide the methods of such monitoring. Similarly, DoE is in no way prohibited from taking pictures underwater in the same manner as it is accessible to public. This is more so because their space is not enclosed within the premises of a firm and hence it is open to the scrutiny of the public. Thus, photographing such an area does not envisage protection available under the Fourth Amendment against interference or surveillance. Besides, underwater photographs will not be able to capture any intimate details of the activities of the firm and, therefore, this cannot be construed as a constitutional violation. Moreover, the interests of the public have been the guiding factor in this case and DoE has a primary responsibility to ensure that public safety is not put in hazard by the activities of a commercial organization. On the other hand, the underwater area where the photograph has been taken does not constitute a reasonable expectation of privacy and hence it involves no violation of privacy. As such, the underwater photographing, a necessary activity to safeguard public interest, in no way violates the privacy of the company and must be allowed. This case is similar because, in both cases the area that has been monitored is the space open to public and as such both cannot be considered as the premises of the companies. The court has ruled the way it did because, an action that did not involve any violation of the privacy, as the space is open to public, cannot be considered as the breach of the privacy or infringement of the rights of the company. Question-3 Advice to Felicia: Freedom of Information Act is one of the salient laws enacted for extending the access of “information about the government” to the public (p.157). Under this act, a citizen can request a copy of documents in the custody of the government and in the normal circumstances he or she will be provided with the same unless it is “expressly exempt” under any special provisions of the law (p.157). In 2007, the government has added another amendment called the “Openness promotes Effectiveness in Our National Government Act” also known as the “Open Government Act” (p.158). However, the relevant rules exempt nine types of document including “internal personnel rules and practices” and “personnel and medical files” (p.158). However, individuals’ “right to privacy” also needs to be considered in this context, before any information is passed to the public (p.158). In the backdrop of the above position of the relevant rules and regulations governing the access of information by public, in the instant case, I would advise Felicia the following: i) She is free to refuse to provide Steve with the copies of annual salary including perks, performance appraisals and disciplinary proceedings against him. ii) However, I will suggest she be very polite in communicating this decision. iii) I will also advise her to apprise Steve that the documents relating to personnel and connected policies are exempt documents under the FOIA. iv) I will further counsel her to inform Steve that providing the details of his salary or other information will amount to breach of his privacy, which the government is bound to protect. It needs to be appreciated that while citizens are entitled to access information about the matters that concern their interests, government also has the right to withhold information that is not of relevance to them. Also, public officials can withhold the information that they thin need not be shared with private individuals. Question-4 ABC College Wisconsin: The government creates administrative agencies through the legislations of Congress for the purpose of implementing or executing the “goals set for them” by people’s representatives (p.96). The US Department of Education is such an agency, entrusted with the responsibility to oversee the education system in the country. The Elimination of Drugs in Higher Education Act (EDHEA) has been enacted by Congress with the intention to support an objective of eliminating the use of drug by students pursuing higher education. The USDE was also required under this Act to promulgate and implement appropriate regulations that will lower the incidence of drug abuse and other such activities by the students. Thus, the USDE is expected to make sure that they take all the appropriate measures to prevent the use of drug abuse by students, especially those pursuing higher education. Subsequently, after serving notice and inviting comments, the USDE has passed the final rule mandating that colleges and universities to conduct screening or drug test of all applicants for federal financial aid before any such aid is disbursed to them. The rule stipulates that financial aid will be denied to the applicants who test positive in the drug screening. In this context, ABC College Wisconsin has filed the law suit, challenging the rule on the pretext that the test @ $50 per candidate will be highly expensive and that the USDE exceeded their authority under the EDHEA. The USED has contended that colleges are receiving higher budget to meet such expenditure and the district court has ruled the case in favor of the USED. In the appeal, the Circuit Court will consider the following aspects of the case: i) The objective of the Congress in enacting the EDHEA was to ensure none of the students pursuing higher education and receiving financial aid from the federal funding abuses drug. ii) The Congress directive is specifically authorizes the USDE has to adopt policies that will lower the incidence of illicit drug use among students receiving financial aid to the “extent feasible.” iii) Is there an exceeding of authority by the USDE as alleged by the appellant? iv) Is the allegation of the test being expensive a matter to be considered for the purpose of this rule? Considering all the relevant aspects of the case, the Circuit Court is like to decide the case as under on the above considerations: i) USDE has issued the rule to meet the objectives of the EDHEA to ensure that the students pursuing higher studies are dissuaded from taking drugs. ii) USDE was trying to implement policies that will ensure that students pursuing higher studies eschew the habit of drug abuse to the extent feasible. iii) Since the USDE has passed the rule in keeping with the directions of the EDHEA, and the relevant provisions of their guidelines are within the purview of relevant powers bestowed with them As such, the USDE has, in no way exceeded their authority. iv) The test being expensive is not a consideration here as the objective of the USDE is to deny the benefits of federal financial aid to drug abusing students as the main objective was to discourage students from drug abusing. Question-5 Jerry’s Brewery, New Castle: Part-A: The freedom against acquisition of private property by the government for “public use,” without adequately compensating the owner, is protected by the Fifth Amendment (p.52). In this context, several clauses exist in the law such as the government may not acquire the property of a citizen “without due process of law” and also that any acquisition of private property of citizens will be done with a “just compensation” (p.54). These limitations have also been applied to state as well as local government through Fourteenth Amendment (p.54). On the other hand, the New Castle authorities have a statute that permits the city to purchase land through eminent domain for the purpose of any developmental activities. However, the guiding principle in the matter of property purports that when public interest affects private property, it “ceases to be juris privati only” and needs to be used for common good (p.56). However, similar cases discussed in Chapter 3 also enjoin that where such private property is acquired for public or common good, the owner of the private property should be provided a “reasonable compensation” and further that what is reasonable compensation needs to be determined by a judicial rather than legislative decision (p.58). In the instant case, if the New Castle Development Commission is acquiring the private property of Stinky for developing the area, they can acquire the property only after compensating the owner reasonably. On the other hand, transmitting the acquired property to Jerry for the development of an eco-friendly restaurant does not seem to be a legally viable proposition as in this case, it does not exclusively serve a public interest. On the other hand, the authorities have required Jerry to undertake refurbishing activities and deed back the employee parking lot to them as compensation to transferring the property to Jerry. Jerry has already negotiated the deal with Stinky but the later has demanded a larger compensation. As such, if at all the New Castle authorities acquire the property and transfer it to Jerry, Stinky will challenge it in the court and ask for higher compensation. Part-B: It is not clear what compensation the New Castle Development Commission has offered Stinky as a compensation for the acquisition of his. In order to determine the appropriateness of the City of New Castle’s acquisition plan, the compensation should be stated clearly. It is also to be noted in this case that Stinky has already declined an offer by Jerry and expected a higher rate of compensation for the property. On the other hand, the New Castle Development Commission has demanded that Jerry to refurbish the outside of his current building to match the eco-friendly outlook of the whole area besides deeding back his current employees parking lot. The amount of compensation, if any proposed, has not been stated. The legal aspects discussed in Chapter 3 in the context of compensation are relevant here. A city authority cannot acquire the property of a citizen without adequately compensating him. As such a court hearing this case will order the New Castle city to compensate Jerry as they cannot compel Jerry to comply with the stated requirements without compensation. In the absence of reasonable compensation it will amount to deprivation of his constitutional rights, as ruled by the Supreme Court in the case of Dolan Vs City of Tigard. References Harrington, C. B. & Carter, L. H. (2009). Administrative Law and Politics: Cases and Comments. 4th ed. California: CQ Press. Read More