Admin Law Exam #2

Executive branch

(1) Policy making- clarifying an unclear rule/specifying a general rule

-Ex.) you have to pay taxes. but how much? who decides?

(2) Decision making

-Ex.) letter that states your name. before you received the letter, you had no legal obligation, now you do.

Performing an act

Ex.) Parked your car on the street that is deemed a parking spot but maybe a fire breaks out in the vicinity of the house, and then the fire department has to go there. The municipality then has to move your car.

This is NOT an administrative act, it is a normal act

The right to perform the policy and decision making

(1) Attribution

(2) Delegation

(3) Mandate

"Original power"

Originating from either the constitution OR a statute or act passed by parliament

A transfer of power

The organ that transfers the power is no longer in charge

If you hand over power to take decisions, you can no longer do that

In order to be delegated power, you need to be allowed to delegate

A handing down of power

The person handing down the power still remains in charge of the situation and can still overrule it

If it is not a hierarchical relationship, it needs to be shown that the person who receives the mandate accepts it

-Different parties (admin authority)

Ultimately, anyone, unless they are excluded

Existing admin body (ex. ministry foreign affairs, etc.)

-Already in place and functioning as an organization

General body (ex. municipality) or specific (tax authorities?)

Newly created admin body (creating a new organ)

-Very specialized

-Takes a long time to set up

-Unsure if it will be sucessful

Non-administrative body

(1) Territory

-Only within a specific territory: municipality, province, etc.

(2) Time

-Time restriction (starting point of an admin power usually defined in the law- entry into force date)

-If you request after entry of force you can get it, but before not

(3) Content

-If you ask the municipality for child benefits and they don't do that (not their admin power), you must go elsewhere

Ultimately admin power can lead to the creation of obligations and rights of third parties

Because it's a process that affects everyone (e.g. government involvement)

Determined by substantive admin law (will award certain admin powers to a certain admin organ, and limit the decision making power at the same time)

Because the admin organ needs to be checked whether or not they are performing their obligations as they need to

A decision that changes or confirms the legal status of a person (needs to be seen as a legal person)

Refusals of an application (i.e. request for an admin decision)

If you send a request to the admin organ, and they do not reply or tell you that you do not meet the requirements, that still grants you entry into the judicial review process

No

(1) Written decision

-Someone writes down the decision and sends it to the correct place

-Paper decision

-Email? Only if the law says so

-Verbal? NO. Needs to be written, unless you have very clear evidence, such as a recording or if you have a witness. But if you want it to stick legally, needs to be in writing

(2) Individual decision

(3) Application (request)

(4) Policy rule (excluded- because it doesn't aim to change legal status)

NO, because it is not aiming to change legal status

The person awarded powers- through attribution, delegation, mandate

Not just admin. authorities, can be anyone vested w/ public authority

Decision taken under admin law, substantive or procedural

Needs intention to change or confirm legal status (ex. going from a person not having to pay taxes, to a person having to pay taxes)

(1) If the admin organ does not decide, claiming there is no admin power ("we are sorry, that is not our power to decide, or that power does not exist")

(2) Admin organ decides w/o admin powers being awarded (assumption of admin powers)

(3) Admin organ abuses power

Proportionality

Equality

Fairness

Legality

Subsidiarity

(1) Right to be heard (includes the obligation to provide information upon request)

(2) Decision should state reasons decisive for outcome (convincing explanation)

(3) Timely decision making (as defined by the law)

-Object to appeal if not taken in time?

Making sure that the admin implements the law correctly

-Ex ante review= before it happens review (something the legislative wants done, they make a law and tells the executive to do it: "this is what we want done")

-Ex post review= after it happens review, legislature will CLARIFY the rule, so that there is only one way to implement it

-Ex ante review= before the entry of the law, NOT POSSIBLE in all countries

-Ex post= always done in concrete cases (has been passed by parliament and in force), and in them executing the law (applying the law to real cases) someone comes along and says it isn't right & says it is contrary to a law or norm

The will of the people

(1) People make mistakes

-failure to observe the law

-selective enforcement of the law

-unclear laws and policies

-abuse of power

(2) Conflicting norms and competing interests

-Law v Treaties

-Law v Constitution

-Law v Policy

etc.

(1) Administrative decision

-Present case to whatever administrative authority you want to decide, then they will do a first assessment and look at the substance of the case, whether or not they have the competence to look at the case

-They take into account societal interests, and test the application against the law and policy

(2) Administrative objection

-Done by the administrative organ, full review, all new facts included.

-Look at ALL aspects of the case

-Must go back to when you first made yourself known to the government that you want help, all the way to the point of objective

-It is an ex nunc test

(3) Appeal

-Done by a court

-They do not hold the full power, they cannot do a full review

-They can just do a marginal review (i.e. has the admin organ, in light of the knowledge that they had at the time of the decision, taken the right decision)?

-Ex tunc decision (NO NEW FACTS!)

(4) Final appeal

-Not always existing (in some countries you only have objection and appeal)

-First instance court

-May be "regular appeal" (ex tunc- moment of the original decision)

-Or a review of the procedure (has it been followed)

Pending stages 2,3,4 you can ask for a provisional (interim) measure

I.e. something you want, ex. giving shelter to someone- can prevent damage from happening

Objective stage:

-The outcome must be a complete reconsideration

-May result in an outcome where the administration says "we leave the decision in tact"

-If there is a new decision, it replaces the old one

Appeal stage:

-Confirmation that the outcome and reasoning are correct

-They can also say that they agree with the outcome, but not the reasoning (i.e. outcome won't change)

-Annulment of the decision

-Restore the situation to be in line with the outcome

-Awarding of damages

Can look at the substance and conduct, determines unlawful conduct (may lead to liability)

National as well as local

Complaint handling mechanism: can have a view towards substance or conduct (mostly conduct)

The substance can sometimes be problematic (i.e. no jurisdiction)

Ombudsman must be neutral (protection against bias)

Sanctions

Ex.) you will have to remove your building by such and such date or we will fine you, and you will receive a fine every week until it is still there. Or maybe you have to pay a sanction and remove it anyways

(1) Fines (ex. speeding ticket)

(2) Enforcement (action)

(3) Imprisonment? (to force you to pay)

Establishes both primary rules governing how the admin. is authorized to work as well as secondary rules governing the remedies (judicial or other) available in cases of a failure to observe the primary rules

Aspects that involve the exercise of state authority or the organization of public services, rather than on everything that a state body might do

Constitutional law

Conformity to law

An admin act is authorized by a higher norm

Further values that the admin must respect, and, in some cases, actively promote

Setting right an unjust situation or to satisfaction sought or gained for a wrong suffered

(1) Common Law Model

(2) Traditional Model

(3) New Deal Model of Regulating Management

(4) Interest Representation Model

(5) Analytic Management of Regulation

Individuals brought actions as a means for judicial review of admin legality

Tort actions

Time of industralization (railroads)

Agencies required trial type adjudicatory hearings before adopting rate orders or other regulatory requirements

Ensured judicial review

Raft of new federal regulatory agencies

VERY broad powers-too wide- democratic deficit

Intensified democratic anxieties to point of crisis

"Fourth branch of government"

Agencies shifted in accordance w/ congressional mandates from case-by-case adjudication to rulemaking as more efficient (esp. legislative procedure)

Agencies needed to address & respond to the factual, analytical and policy submissions made by the various participating interests and justify their decision w/ detailed reasons

Reagan

Required agencies to perform cost-benefit analyses of proposed major regulations & alternatives

Cure is to discipline regulatory decision- making and eliminate unjustified regulation through cost-benefit analysis & centralized review & oversight from the executive office of the president

Limits its ethical agenda to the protection of private property & basic market freedoms

Emphasizes the benefit of an economic constitution based on intl. free trade but is not opposed to the protection of fundamental rights of the environment

Accepts government regulation & is skeptical of the market as an accountability vehicle

Requiring the fixed & stable general principles of law plus formal rights of access to courts for the resolution of disputes

Focuses on the supremacy of law as expressed through courts & the binding nature of judicial resolutions