Administrative Law

You are a legislative aide to a state legislator who wishes to introduce legislation creating a new state department of drug enforcement. It is intended that, among other authorities, this new administrative agency will have authority to establish a list of controlled drugs, establish rules regarding penalties for possession or use of controlled drugs, establish a process for adjudicating cases involving violators of the rules, and enter into contracts with a private agency or agencies to establish and manage a system of one or more incarceration facilities to which violators of these rules may be sentenced upon a finding of guilt.

courts therefore have allowed the U.S. Congress—and other legislative bodies—to make laws that delegate limited lawmaking authority to administrative agencies.

The substance of an administrative agency's powers must be intelligible, and a system of controls must be in place to limit those powers administrative agencies constitute an unconstitutional, bureaucratic fourth branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary).

In response, supporters of administrative agencies note that agencies are created and overseen by elected officials or the president.

Agencies are created by an enabling statute, which is a state or federal law that gives birth to the agency and outlines the procedures for the agency's rule making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of In your paper be sure to address the following:

1. Identify and analyze any delegation issues. State any assumptions you make in your analysis.

The agency needs to be provided with a beyond intelligible principal and a system of controls must be in place to limit the powers of the administrative agency. The separation of powers doctrine must not be violated. Before delegating authority to a private agency, compliance with civil service, environmental, regulatory and constitutional laws must be taken into consideration.

A private agency cannot try a criminal case; this is a core governmental function that cannot be delegated to a private party. It is still debatable whether a private company can provide jail and prison services.

With sufficient guidance from Congress, an agency may establish a rule declaring an act criminal, but it may not determine what punishment should be imposed for violation of the rule. Monetary penalties may be imposed by an agency, not imprisonment. Only the judiciary has the authority to impose incarceration or other serious penalties.

2. What recommendations would you make to ensure that this legislation will not be found to be an improper delegation of authority? • Include in the policy sanctions for any breach of the policy and procedures. • Review the policy every two years.

• Refer to the use of delegations in all relevant corporate documents such as codes of conduct. • Train all employees with delegated authority in the policy and procedures. • Ensure that the policy includes a requirement for records to be kept of all decisions taken under delegated authority.

• be clear about what delegations actually exist so that delegates and everyone who deals with them know the extent of their authority • allow only as much discretion as is needed to perform the delegated responsibilities • attach accountability controls to delegated authority

• include a review mechanism to check the use of the delegated authority over time.

Review delegations regularly courts therefore have allowed the U.S. Congress—and other legislative bodies—to make laws that delegate limited lawmaking authority to administrative agencies. The substance of an administrative agency's powers must be intelligible, and a system of controls must be in place to limit those powers administrative agencies constitute an unconstitutional, bureaucratic fourth branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary). In response, supporters of administrative agencies note that agencies are created and overseen by elected officials or the president.

Agencies are created by an enabling statute, which is a state or federal law that gives birth to the agency and outlines the procedures for the agency's rule making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of the electorate.

References

Independent Commission Against Corruption.(n.d.) Corruption Prevention. Retrieved March 16, 2013 from http://www.icac.nsw.gov.au/preventing-corruption/knowing-your-risks/delegation-of-authority/4895