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ADMINISTRATIVE LAW
GENERAL COMMENTS
Keeping students engaged and interested while discussing the topic of administrative law can be
challenging. Students may see only an abstract concept and ignore the very real impacts of administrative
agencies and administrative law on their lives. For that reason, this chapter is written with a goal towards
providing relevant and topical examples of the role of administrative law in students’ lives. To fully grasp
the nature of the society in which they live, students need to realize that administrative agencies affect
their lives, liberty, and property with a multiplicity of rules and regulations, more frequently and often
more profoundly, than any of the other major organs of government. Although the actions of
administrative agencies are subject to judicial review, the agencies’ regulations and rulings in actual cases
are seldom overturned by the courts.
In this chapter, the case of Nash v. Auburn University brings the reality of the law to students, as the
constitutional requirements of fair hearing at a public university are challenged by two students accused
of cheating on their Anatomy examinations.
CHAPTER SUGGESTIONS
1. Some chapters lend themselves to Internet use more than others; this chapter is one that begs for
Internet use. All federal administrative agencies have extensive Internet sites and most state
agencies do as well (or will have them soon). A very useful entry point is http://www.usa.gov.
Assignments could include asking students to access a site and extract certain information such as:
a. What is the agency mission?
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2. Review of areas regulated by agencies (e.g., auto exhaust emissions) may be assigned as student
projects, or may simply be used for in-class discussion exercises. Such exercises are useful for
connecting students to the concept of administrative law.
3. In lecture, discussion, or with student research assignments, illuminate the beginning and the
evolutionary development of government regulation of the private sector of the national economy.
4. Using a lecture about the social unrest of the 1960s as an introduction, present the case of Heart of
7. Have students do a critical investigation of agencies that are subject to major criticism.
FEMA for the handling of Hurricane Katrina.
The FDA for recent disclosures of approved pharmaceuticals that although approved have harmful
affects.
The EPA for the costs associated with environmental impact reports and building projects.
Local development agencies using eminent domain to take property of an existing business to
promote another business that might provide a more significant tax base,
FOR CRITICAL ANALYSIS
Nash v. Auburn University
This question should facilitate discussion of Judge Friendly’s list of attributes of a fair hearing (text
pages 225-226). Compare these attributes to those used in the Nash case (a situation of clear relevance to
your students). The discussion below considers answers determined by other related cases. Like most
class discussions, the answers are less important than a spirited discussion.
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1. Protection guaranteed by the Constitution is not waived by simple enrollment at the university. Any
attempt to waive constitutional protection would require justification, would need to be reasonable
under the circumstances, and would need to be accompanied by proof that the waiver was made
after full opportunity to appreciate its effect.
2. The position may be reasonable but it is doubtful that this right exists in this type of hearing.
“…[T]he weight of authority is against the representation by counsel at disciplinary hearings,
unless the student is also facing criminal charges stemming from the incident in question.” Gorman
at 16.
3. The right of cross-examination coupled with the right to be aware of the evidence offered against an
individual is a critical right. However, what is meant by cross-examination? Knowledge of evidence
offered against one and the right to counter that evidence may be the extent of the constitutional
protection in this type of hearing. “…[T]he right to unlimited cross-examination has not been
Gorman at 15.
5. “The Fifth and Fourteenth Amendments of the Constitution apply only to the federal government
and to the state, respectively — and derivatively, to those whose actions can fairly be attributed to
federal or state government.” Russell v. Salve Regina College, 649 F. Supp. 391, 396 (1986). If the
disciplinary action took place in a private university, arguments sounding in contract and the tort of
breach of covenant of good-faith fair dealing (if existing in that state) would be the probable
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ANSWERS TO QUESTIONS AND PROBLEMS
1. The distinguishing characteristic is the appointment term. Most appointees to executive leadership
positions at executive departments serve at the pleasure of the executive, whereas appointments to
independent agencies are for specific periods of time and the appointees cannot be discharged
2. The U.S. Supreme Court, and all other courts at lower levels, evidently respect the fact that
administrative agencies have the technical expertise to write appropriate rules in their specialized
fields. Moreover, these agencies have generally been able to follow through with appropriate and
3. The requirement that government obtain search warrants creates a time delay between the point
where a suspect is identified and the monitoring system can be put in place. The federal government
has also argued that fighting the war on terror requires a more mobile and responsive defense. It is
also argued that the risks, i.e. the quantity of harm that one terrorist can cause, weighs in favor of
granting the government more leniency and power to conduct warrantless searches. Others worry
that liberty rights are on a slippery slope, meaning that once a society starts going down a path of
lessened liberty rights it is often difficult to stop that direction before nearly all rights are lost.
4. The affected person or persons can appeal to the agency for a review and a change in the standards.
This can be successful, especially if a sufficiently large number of affected persons complain.
Appeals to courts will not likely be fruitful. Therefore, affected persons (including business firms)
5. Congress enacted the Occupational Safety and Health Act (OSHA) of 1970, which imposed
statutory duties to avoid unsafe working conditions on employers. Two remedies were included in
OSHA that permit the federal government (1) to obtain abatement orders requiring employers to
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6. Yes. In the language of the court, “Congress could validly delegate such authority to a reservation’s
tribal council. The independent authority of Indian tribes over matters that affect the internal and
social relations of tribal life is sufficient to protect Congress’ decision to vest in tribal councils this
portion of its own authority ‘to regulate Commerce…with the Indian tribes’ under Art. I. It is an
important aspect of this case that Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory; they are ‘a separate people’ possessing ‘the
power of regulating their internal and social relations….’”
“[W]hen Congress, delegated its authority to control the introduction of alcoholic beverages
into Indian country, it did so to entities which possess a certain degree of independent authority
over matters that affect the internal and social relations of tribal life. Clearly the distribution and use
of intoxicants is just such a matter.”
“In holding that the authority of tribal courts could extend over non-Indians, insofar as
concerned their transactions on a reservation with Indians, we stated: ‘It is immaterial that
respondent is not an Indian. He was on the Reservation and the transaction with an Indian took
place there.’ The cases in this Court have consistently guarded the authority of Indian governments
over their Reservations. Congress recognized this authority in the Navajos in the Treaty of 1868,
and has done so ever since. If this power is to be taken away from them, it is for Congress to do it.”
7. The court held that the public defenders lacked standing to challenge the sentencing guidelines.
“[P]laintiffs have failed to meet the threshold, constitutional requirement of injury in fact. It is not
possible to ‘find’ constitutional standing for two reasons. First, and foremost, the type of injury or
harm alleged by these plaintiffs, who are in essence a collective body of criminal lawyers, cannot
be distinguished from the sort of harm or injury absorbed by any legal specialist or group of
8. Wilson was arguing both due process and unlawful delegation. The unlawful delegation argument
was that the decision-maker in this case was a private corporation performing a public function and
they had an economic interest in deciding to boot the car. The heart of the due process argument
was his contention that he had a right to pre-boot hearing. The court did not address the delegation
question, but you might want to raise it in the context of the movement toward private jails. On writ
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9. Yes. So long as a statute has provided for such inspections, they should pass constitutional muster
even if warrantless. The greater latitude in conducting warrantless inspections of commercial
property reflects the fact that any expectation of privacy of an owner of commercial property differs
significantly from the expectation of privacy of the owner of a home. U.S. v. Biswell, 406 U.S. 311,
92 S.Ct. 1593 (1972).
10. NMFS was required to make the film available. The court held:
a. The motion picture film was a “record” subject to the disclosure requirements of the Freedom
of Information Act. The term “records” in common parlance includes various means of storing
information for future reference. There does not appear to be any good reason for limiting
“records” as used in the act to written documents. The motion picture film in question was
made in order to store the information it now contains; it therefore falls within the definition of
“records.”
b. The agency was subject to the act and was required to make records available to members of
the public upon request. This requirement included records that were obtained from an
individual upon the express promise by the agency that the records would be kept confidential.
The court held to conclude otherwise, an agency, handing out promises of confidentiality, could
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