Assignment: Read Chapters 2 and 3.
Chapter 2: Bureaucracy and Democracy.
The Constitution of the United States recognizes the existence of both federal as well as state governments. The federal government derives its power from the U.S. Constitution only, while each individual state is governed by both the U.S. as well as their respective state constitution. When the two constitutions are in conflict, the legal principle of Federalism controls.
Unlike the three major branches of government, administrative agencies do not comply with the doctrine known as Separation of Powers. As you have read, administrative agencies are unique in this fashion. They function as a judicial, executive and legislative branch of government. So if they act as judge, jury and executioner, how are the agencies controlled?
Administrative agencies do not have free rein to do whatever they please. They are controlled by Congress by Congress’ power to create, fund and dissolve the agency. The executive branch (President), has the ability to appoint and staff the agency while the judicial branch (Courts) are the final voice that will interpret agency action.
Chapter 3: Discretion.
What is meant by agency discretion? As you will see, administrative agencies have great authority to decide what the agency can and can’t regulate, control or oversee.
The greatest power an administrative agency has is Prosecutorial Discretion. Prosecutorial discretion takes shape in many forms, but one sanction an administrative agency usually does not impose is imprisonment. However, some agencies such as ICE (Immigration and Customs Enforcement) can detain. Imprisonment for a violation of administrative agency policy is usually the duty of the courts, not the agency. The exercise of prosecutorial discretion in the administrative law sense concerns mostly who the agency investigates as opposed to the punishment involved. Typically, an agency will not investigate a claim unless a large number of people are affected by the violation. However, if the violation is in direct conflict with an agency rule or regulation, the agency is more likely to investigate the complaint.
Another form of agency discretion has to deal with license application and revocation. For example, an agency is not obligated to accept an application unless the applicant meets the criteria (a convicted felon’s application for a concealed weapon permit will be rejected) and no hearing is necessary. However, once you have a concealed weapon permit and the agency proposes to take negative action regarding the permit, the agency is mandated to conduct an inquiry into the matter before revocation in most circumstances.
Should a person not be sure of their rights regarding an agency rule or regulation, the agency will sometimes issue an “Advisory Opinion.” The advisory opinion is binding upon the agency, however, one must remember that if the matter is subsequently reviewed by the court, the advisory opinion is not binding on the court.
This is a monitored discussion.
Give an example of a policy issue in which the federal government and the state government share jurisdiction, naming the respective administrative agency for both.
- Your single Original Post shall address the question(s).
- Your Original Post to the discussion questions must be at least 200-words using specific examples from the book or other resources to support your answers.
- Cite references according to APA requirements.