The doctrines of federalism and separation of powers prohibits the federal government from interfering with states where there is no direct connection to a constitutionally delegated federal power. As a result, attempts at federal gun control were found unconstitutional in the cases of United States v. Lopez and Printz v. United States. Assuming that the court’s interpretation of the law was accurate, do you believe that the states power to regulate in these and similar matters should outweigh the federal government’s right to do so? What if anything, should be done?
The U.S. Supreme Court has done an artful job of dodging the underlying issue involved with Federal Attempts to regulate the possession of guns. By interpreting gun regulations, such as the Gun-Free School Zones Act (1990), in terms of Commerce Clause of the constitution, rather than the second amendment. A definitive finding on the ability of the Federal Government to regulate the production, sale or possession of firearms would have huge ramifications for the federal government and, by extension, (and incorporation) state regulations. The court has consistently held that local governments are better at determining guidelines regulating the manner, and location of possession of firearms. Municipalities can pass ordinances which specifically prohibit the possession of firearms in certain locations, such as churches and liquor stores, and they can set licensing conditions for issues such as the possession of concealed weapons. As a matter of principle, it would make sense that the federal government leave such regulation in the hands of those who have the knowledge and experience in the local conditions to formulate reasonable policy. Furthermore, a reading of the Second Amendment would seem to point to an inherent conflict of interest vis-a-vis Federal regulation of firearms. The first part of the Amendment offers a rationale for the right to keep and bear arms. The justification is that a “well-regulated militia” is necessary for the security of the state. Given that the likely use such a militia would be to battle against the forces of an unconstitutional federal government, it would seem illogical that this same government should have a legal right to regulate this militia. Additionally, as the Court pointed out, there seems to be no reasonable way to connect simple possession of firearms to the regulation of interstate commerce.
2. In Gonzales v. Reno the court chose to uphold the INS right to make a policy decision in absence of Congressional direction. They did not make known that they “are not troubled by the degree of obedience that the INS appears to give to the wishes of parents, especially parents who are outside of this country’s jurisdiction.” The court also showed concern with the INS policy of not considering the communist-totalitarian state to itself justify the consideration of Elian’s asylum petition. Ultimately, however, the court found the INS decision not to be unreasonable. Do you believe it is possible for an administrative agency to be able to make fair and constitutionally defendable alternative decisions based on varying fact situations on a case by case basis, or must a single, fairly rigid policy be utilized?
The question is whether federal regulatory agencies ought to be allowed discretion for the interpretation and/or enforcement of regulation on an ad hoc basis, or whether they ought to conform rigidly to regulatory edicts. It would seem obvious that the origin of much of the injustice that occurs in the interaction of any large organization and an individual’s interest lies in the inability or unwillingness of individuals in the large organization to exercise judgment in the face of regulatory edicts whose enforcement would lead to gross injustice. The dichotomy faced by regulatory agents is between the possibility of discretion leading to corruption or other forms of abuse, or slavish adherence to rules that leads to manifest injustice. The prevailing wisdom is that it is better overall for the agency to suffer the occasional embarrassment resulting from hidebound adherence to regulation than to risk pervasive corruption that might follow from allowing individual discretion. In short, the workers in an organization such as INS lack the moral and professional qualities necessary to alter regulation on an ad hoc basis. This being the case, there should always be a mechanism by which an individual might appeal to an authority that has the capacity to consider ad hoc circumstances vis-a-vis individual case issues. In the matter of the federal government, that agency is the Supreme Court. Ideally, the Court would have the discretion to disregard a regulation whose application in particular case would result in a manifest injustice. Lacking that discretion, the court is left with the option of declaring the regulation itself to be invalid. They need constitutional justification of such a determination, which further limits their ability to act on their own judgment. It would seem that an ideal solution would be for federal agencies to employ committees of appeals whose only purpose would be to consider ad hoc circumstances in which injustices appear to have occurred. It would have the discretion to ignore, alter or change the application of regulations in a manner that would be best suited to resolve the injustice. The nature of this committee would consist of multiple people, thus limiting the opportunity for corruption, and it would consist of people who have been vetted and hired on the basis of their skills in reasoning and even-handedness.
Name three tests that courts use to determine whether a law or action violates the Equal Protection Clause. How do they differ and do you believe that it is necessary to have three separate tests or would one test suffice?
The three “tests’” developed by the courts to determine whether an act or action violates the equal protection cause are organized by level of scrutiny. The first of these is the test of “strict scrutiny”. In order for an act or action to pass the test of “strict scrutiny”, the agent of the act or action bears the burden to prove that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. Groups that are subject to the “strict scrutiny” standard are Race, national origin, religion, alienage. The rights that are protected under the “strict scrutiny” standard include the right to vote, the right to travel between the states, access to courts, and any other right deemed by the court to be “fundamental”. The second test is known as “Middle-Tier” or “Moderate scrutiny. Under this standard, the agent of the act or action must show that the classification serves a valid interest and that the classification is at least substantially related to that interest. The classifications under this level of protection are gender and illegitimacy. The final test, or standard is the “minimum” or “rational basis” standard. Under this test the burden of proof shifts to those claiming discrimination. The agent of the discrimination need only demonstrate a rational connection between the classification and the interest of the state. Groups evaluated under this standard include homosexuals, the mentally impaired, and children of illegal aliens. It is unnecessary for the courts to three standards for determining what level of discrimination is “acceptable” under the law. The very existence of different standards for different groups is in itself a violation of Equal Protection, as, it is clear, different classifications are entitled under the system to different levels of protection. It would seem obvious that having one set of rules for one “suspect groups” and a different one ofor others is in itself discriminatory, and reflects nothing more than the court’s attitude that certain groups are more deserving of constitutional protection than are others.
4. In today’s world, there is a growing trend toward privatization of governmental services. What are some of the benefits and detriments of privatization? What is your position on privatization and why?
There is a general perception that the federal government is incapable of successfully running any enterprise. True or not, this perception typically leads to speculation that certain government functions are better privatized than run by government agencies. In general, it would seem that such a determination would depend on the overall goals of the agency itself. The key characteristic of private enterprise is the standard of profit as the goal. In the case of government agencies, funding, or self-sufficiency is secondary to the stated goals of the agency. This distinction is the source of both the advantages and disadvantages of privatization. To the extent that an agency or project ought to be run with efficiency and cost–effectiveness, privatization offers a clear advantages. The drive for profit compels private enterprises to perform their services in the most cost-effective manner possible. While this practice saves money, it tends to reduce the quality of services provided. One example of this is the relatively low quality of privatized corrections institutes as compared to those run by the government. There are also issues of accountability to be considered when addressing the notion of privatization. Privatizing certain services would lead to the circumstances where the acting agency is no longer accountable at law the way the government itself would be. Additionally, private organizations are more prone to institutional corruption than are government agencies. On the other hand, public organizations are far more likely to be bloated, inefficient, and in some cases, incompetent. It would seem that the notion of privatization ought to be considered in the context of the functional goals of the agency in question. Generally, it would appear that in the areas of law enforcement and corrections, the inefficiency may be tolerated to avoid a private entity controlling police or corrections. In other areas, such as health care and financial management, privatization may hold certain advantages. Competition for government contract in these areas would lead to an overall improvement in the quality of the performance of these organizations.
In general, it would seem that the most logical approach to privatization would be one that recognizes when the goals of the state versus those of a private agency. Privatization should only be allowed where those benefits of privatization outweigh the disadvantages.
5. How does formal and informal rulemaking differ? When is formal rulemaking required and which occurs more often and why?
Formal rulemaking occurs when the controlling parties set forth a basis for regulation, often formally debating the merits of provisions and arriving at a conclusion that meets the satisfaction of the stakeholders involved. In contrast, informal rulemaking is a result of the codification of habitual responses to given conditions and the preferences of the decision-makers on hand. Often times, these informal rules become formalized as they are eventually considered as part of a process of formalization of standards and practices within an organization. The advantages of formal rulemaking are that the rules made therein are subject to the intellectual parsing by individuals who have the knowledge and ability to create rational and reasonable rules. The main disadvantage of formal rule-making is that those responsible for the rules in these circumstances may not have hands-on experience necessary to properly consider contingencies and circumstances that ought by rights effect the final formation of the rules. On the other side of the coin, informal rule making has advantages and disadvantages as well. The authors of an informal rule have most likely based the rule on extensive circumstantial experience, rather than abstractions and ideals that may not be realistic. As a negative, the authors of such rules may be unaware of institutional or legal considerations that may be necessary for the rule to have functional application across the board. Ideally, formal rule makers should seek the input of those with procedural knowledge who can assess the practicality of those provisions, while the formal rule makers can assure compliance with relevant laws, standards and practices that may escape the notice of the “on the street” executors of these rules.
6. How do the rules pertaining to evidence differ between federal judicial trials and administrative hearings? Do you agree that there should be differences?
There are set rules for evidence and testimony in federal judicial trials. The rules are outlined in the Federal Rules of Evidence. These rules set parameters for the admittance of testimonial, documentary and scientific evidence. In addition to these rules, the federal courts rely on the entire body of Court precedent in applying the rulings from previous cases with respect to evidentiary rules. Administrative hearings have fewer formal rules with respect to evidentiary matters. They have a great deal more flexibility with respect to testimonial evidence, and reduced standards of admissibility apply. In administrative hearings, the mediating body has a much greater discretion as to what evidence they will or will not consider. Limits regarding chain of evidence, best evidence, and other limitations may not apply in administrative hearings. Additionally, since administrative hearings are not adjudicated with juries, presentation of the evidence consists of different methodologies and less formality than that of federal judiciary trials. Since administrative hearings are offered as an alternative to federal legal action, and their rules are meant to streamline the process, it is acceptable that the rules in administrative hearings are different. The outcome of administrative hearings are ultimately appealable to the federal courts, where the rules of evidence are sufficiently weighted to ensure fundamental fairness, so the administrative hearings are backstopped by the more fair process.
7. Explain how a court, when reviewing and administrative construction of a statute, applies the Chevron Doctrine. Be sure to specifically show step-by-step thinking model that the court employs.
Derived from the Supreme Court decision of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, the “Chevron Doctrine” a standard by which the court determines whether a particular government agency may interpret its own instruction or mandate. A two-tiered process, the “Chevron Doctrine” is applied in a manner that the Supreme Court deems to be a proper method of making this determination. The first consideration in the process is to determine whether the statute in question is ambiguous, or intentionally left a gap that the agency itself was supposed to fill. If the statute is unambiguous, and the interpretation runs contrary to the intention of the statute governing the agency, then the statute rules and the agency’s policy would be stricken down by the courts. The second element of the test by the courts is whether the agency’s interpretation or application of the statute is reasonable or permissible. If, having passed the first part of the test, the agency’s interpretation or application is found to be reasonable, the court will uphold the agency’s interpretation.
8. What is meant by “ripeness” and “standing” and how are they important in determining is a court has jurisdiction to hear a case?
Refined in Abbott Systems v. Gardner (1967), the term “ripeness” is employed by the legal system to identify a circumstance as to whether a particular action has proceeded far enough to be considered actionable in a given court setting. A standard of “ripeness” comes in the form of a two-tiered test. The first part of the test is a determination of the fitness of the issue for judicial decision, and the harm to the parties in delaying such adjudication. The goal in the consideration of “ripeness’ is to avoid a premature adjudication, which may lead to a legal finding that comes before the full implications and results of a given policy become manifest. On the other side of the coin, “standing” refers to the ability of a party to demonstrate sufficient connection to the elements of the case to justify its participation in the case. Both ripeness and standing effect jurisdiction. Ripeness determination will indicate whether the court has allowed sufficient time to elapse for the disputed act or action to demonstrate its debated characteristic. Standing will ensure that the court does not take a case in which a party asks for consideration that he or she does not have sufficient connection to the issue to claim status in the case.