Administrative Law- Bureaucracy in a Democracy. 6th Edition By Daniel E. Hall Answers At The End Of

Test Item File Chapter 1 Multiple Choice: 1. Administrative law focuses on the laws governing which part of the government? a. Congress b. Courts c. Administrative agencies d. President Answer: c Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Basic 2. Administrative law is needed because the number of agencies has significantly _______ in recent years. a. increased b. decreased c. stayed the same Answer: a Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Basic 3. Which source of administrative law is a law passed by Congress that establishes an agency and sets forth the responsibilities and authority of that agency? a. Administrative Procedure Act b. Constitution c. Enabling Statute d. Executive Order Answer: c Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 2-3 Level: Basic 4. Which source of administrative law is a comprehensive statute governing the procedures that agencies must follow when performing their functions? a. Administrative procedure act b. Constitution c. Enabling statute d. Executive order Answer: a Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 138

5. Which article under the U.S. Constitution is a source of authority for executive orders issued by the U.S. President? a. Article I b. Article II c. Article III d. Article IV Answer: b Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 6. The Administrative Procedure was enacted in: a. 1926 b. 1936 c. 1946 d. 1956 Answer: c Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 7. Which of the following is not a reason that explains the existence of agencies? a. The government is so large that Congress does not have the time to make all of the laws needed. b. Congress is too small to be expert in all areas that it regulates. c. Agencies allow the President and Congress to delegate their responsibilities, allowing a shift of accountability and the establishment of a protective buffer regarding controversial or contentious matters. d. Congress is too busy to be proficient in all areas that it regulates.

Answer: c Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 7 Level: Intermediate 8. Food stamps are distributed by: a. Department of Health and Human Resources b. Department of Agriculture c. Department of Housing and Urban Development d. Food and Drug Administration Answer: b Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 8 Level: Intermediate 139

9. Which type of administrative agency's head answers to the president and may be disciplined or terminated at the president’s will? a. Independent agency b. Executive agency c. Public service agency d. Social welfare agency Answer: b Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8-9 Level: Basic 10. The Federal Communications Commission is a federal agency that determines who may hold a license to broadcast communications. What type of agency is the Communications Commission? a. Regulatory agency b. Public service agency c. Social welfare agency Answer: a Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8-9 Level: Intermediate 11. The Social Security Administration is a federal agency that provides retirement and disability benefits. What type of agency is the Social Security Administration? a. Regulatory agency b. Public service agency c. Social welfare agency Answer: c Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8-9 Level: Difficult 12. The highest officer of an executive agency is called a: a. Secretary b. Director c. Chairperson d. Principal Answer: a Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Difficult 13. Which U.S. President initiated the creation of many new agencies as part of his New Deal efforts to revive the economy during the Great Depression? a. Theodore Roosevelt 140

b. Franklin D. Roosevelt c. Woodrow Wilson d. Harry S. Truman Answer: b Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Basic 14. Which of the following agencies was NOT created during the New Deal to revive the economy during the Great Depression? a. Tennessee Valley Authority b. Works Progress Administration c. Civilian Conservation Corps d. Department of Homeland Security Answer: d Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Basic 15. Each of the following was created by the first U.S. Congress except: a. Department of Health and Human Resources b. Department of Patents c. Department of Foreign Affairs d. Department of War Answer: a Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Intermediate 16. Which of the following is not a factor for the growth of administrative agencies? a. Increased mobility b. Increased interdependence of people c. Expectation that government will provide more services and benefits d. Fiscal conservative policies Answer: d Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Intermediate 17. During the 20th century, the number of federal government employees has: a. increased in terms of the population b. decreased in terms of the population 141

c. stayed relatively level in terms of the population d. there are no statistics kept to illustrate this point Answer: a Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 11 Level: Intermediate 18. The highest officer of an executive agency is called a: a. secretary b. director c. chairperson d. principal Answer: a Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Basic 19. The Nuclear Regulatory Commission is a federal agency that is responsible for ratemaking for energy matters of a national scale. What type of agency is the Nuclear Regulatory Commission? a. Regulatory agency b. Public service agency c. Social welfare agency Answer: a Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Intermediate 20. The National Science Foundation is a federal agency that promotes research and provides information to the public. What type of agency is the National Science Foundation? a. Regulatory agency b. Public service agency c. Social welfare agency Answer: b Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Difficult True-False: 1. Administrative law defines the powers, limitations, and procedures of administrative agencies. a. True b. False Answer: a 142

Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Basic 2. Administrative law focuses on the substantive laws of administrative agencies. a. True b. False Answer: b Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Basic 3. A lawfully issued executive order has the effect of a statute. a. True b. False Answer: b Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3-4 Level: Intermediate 4. All 50 states have adopted the Model State APA. a. True b. False Answer: b Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 5. All states have enacted some form of an administrative procedure statute. a. True b. False Answer: b Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 6. In most cases, where there is a conflict between an executive order and a statute, the executive order will prevail. a. True b. False Answer: b Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3-4 Level: Intermediate 7. Regulatory agencies exist at both the federal and state levels.

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a. True b. False Answer: a Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 8 Level: Basic 8. Agencies exist at all levels of the government. a. True b. False Answer: a Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 5 Level: Basic 9. Agencies may be created by all three branches of the federal government. a. True b. False Answer: b Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 5 Level: Basic 10. The heads of independent agencies may serve at the pleasure of the president and may be fired at the president’s will. a. True b. False Answer: b Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Basic 11. Executive agencies are generally part of the executive branch while independent agencies are generally part of the legislative branch of the government. a. True b. False Answer: b Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Intermediate 12. The president’s cabinet is made up of heads of executive and independent committees.

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a. True b. False Answer: b Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8 Level: Basic 13. The number of federal administrative agencies grew substantially in the time between the Great Depression and World War II. a. True b. False Answer: a Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Basic 14. The U.S. Constitution expressly states all of the federal administrative agencies. a. True b. False Answer: b Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 10 Level: Intermediate 15. The invention of the automobile is one factor that has led to the growth in the number of federal administrative agencies. a. True b. False Answer: a Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 11 Level: Intermediate 16. Administrative agencies have existed since the birth of the United States. a. True b. False Answer: a Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Basic Fill in the Blank: 145

1. One particular concern with administrative law involves the rights of _____ when dealing with administrative agencies.

Answer: individuals Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Intermediate 2. Administrative law defines the powers, limitations, and _____ of administrative agencies.

Answer: procedures Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Basic 3. The Social Security Act of 1935 that sets forth the responsibilities and authority of the Social Security Administration is an example of a(n) ______ statute.

Answer: enabling Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 2 Level: Intermediate 4. The federal Administrative _______ Act is the comprehensive statute governing the procedures that agencies must follow when performing their functions.

Answer: Procedure Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 3 Level: Intermediate 5. While some scholars have referred to administrative agencies as the fourth branch of government, after creation, most administrative agencies fall under the aegis or control of the _____ branch.

Answer: executive Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels.

Page number: 7 Level: Intermediate 6. The U.S. Occupational Safety and Health Administration that sets standards for safety in the workplace is an example of a(n) ______ agency.

Answer: regulatory Objective: Distinguish agencies using the models presented in the chapter.

Page Number: 8 Level: Intermediate 7. The U.S. Department of Veterans Affairs that provides benefits for veterans is an example of a(n) ______ welfare agency.

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Answer: social Objective: Distinguish agencies using the models presented in the chapter.

Page Number: 8 Level: Intermediate 8. Heads of executive agencies are nominated by the _____ of the United States and confirmed by the Senate of the United States.

Answer: President Objective: Distinguish agencies using the models presented in the chapter.

Page Number: 8 Level: Intermediate 9. President Franklin D. Roosevelt initiated the creation of many new agencies as part of his _____ efforts to revive the economy and to correct other social problems the nation was experiencing.

Answer: New Deal Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Intermediate 10. The boom era for federal administrative agencies was during the Great Depression and ______.

Answer: World War II Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9 Level: Intermediate Matching: Match the source of administrative law listed in Column 1 to its description in Column 2.

Column 1 1. Enabling Statute

2. Executive Order

3. Constitution

4. Administrative Procedure Act

Column 2 a. The law that sets forth the concepts of due process of law and equal protection of laws b. Law passed by Congress that establishes an agency and sets forth the responsibilities and authority of that agency c. A comprehensive statute governing the procedures that agencies must follow when performing their functions d. A declaration issued by the President without the approval of 147

Congress 1. *b 2. *d 3. *a 4. *c Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 2-5 Level: Intermediate Match the type of administrative agency listed in Column 1 to its description in Column 2.

Column 1 5. Social welfare agencies

6. Regulatory agencies 7. Public service agencies

8. Executive agencies

9. Independent agencies

Column 2 a. Administrative agencies responsible for proscribing or requiring certain behavior, determining compliance with the law, and prosecuting (and occasionally punishing) those who violate the law b. Administrative agencies that provide special, nonredistributive services such as research c. Administrative agencies responsible for promoting the general welfare of the people. Such agencies’ missions often include providing services or cash distributions to persons who qualify for assistance. d. Administrative agencies over which the president exerts less control; often headed by a board or commission e. Administrative agencies whose head answers to the president and may be disciplined or terminated at the president’s will

5. *c 6. *a 7. *b 8.*e 9.*d Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8-9 Level: Intermediate Essay: 1. Explain what administrative law does not cover.

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Answer: Administrative law does not delve into the substantive laws of administrative agencies. For example, the standards used to decide whether a person is eligible for welfare benefits are not covered by administrative law.

Objective: Define what administrative law is and isn’t.

Page number: 2 Level: Intermediate 2. Compare and contrast the different sources of administrative law in the United States.

Answer: The U.S. Constitution establishes many the powers of the national government, specifically the power of Congress to regulate interstate commerce and other matters. The Fifth Amendment and Fourteenth Amendments provide for the protections of due process of law and equal protection of laws. An enabling statute is a law passed by Congress that establishes an agency and sets forth the responsibilities and authority of that agency. The federal Administrative Procedure Act is a comprehensive statute governing the procedures that agencies must follow when performing their functions. An executive order is a declaration issued by the President without the approval of Congress.

Objective: Identify and distinguish the sources of administrative law in the United States.

Page number: 2-4 Level: Difficult 3. Discuss the differences between executive agencies and independent agencies.

Answer: The heads of executive agencies are directly answerable to the president and may be fired at the president’s will. The heads are therefore often very political. The heads can be influenced to act in a particular way for job survival where the President's direct control can influence policy. This can be positive or negative depending on whether one supports or opposes presidential policy. Independent agencies have presidential oversight but the President cannot fire a head without just cause. Politics is less of an issue in terms of imposing regulations and enforcing policy. Heads are more influenced by public opinion than political agendas. Heads have more freedom and autonomy to make decisions. This can be positive or negative depending on whether one supports or opposes increased or comprehensive regulation.

Objective: Distinguish agencies using the models presented in the chapter.

Page number: 8-9 Level: Intermediate 4. Explain the factors that have led to the growth in the number of federal administrative agencies.

Answer: Several factors have contributed to the growth in government and administrative agencies. First, the increasing interdependence of people is a significant factor. The second factor is the growing expectation of the public for its government to regulate in new ways. A third factor is the expectation that government will provide more services and benefits than in the early years of the Republic. A fourth factor is the increasing mobility of people.

Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

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Level: Intermediate Critical Thinking: 1. Discuss the impact of federal agencies that affect the life of a college student.

Answer: Student answers will vary.

Objective: Distinguish agencies using the models presented in the chapter.

Page number: 13-14 Level: Difficult 2. Discuss which single factor you think has contributed the most to the growth of administrative agencies.

Answer: Student answers will vary.

Objective: Identify the most significant factors that have contributed to the growth of the administrative state in the United States.

Page number: 9-12 Level: Difficult MC: 1. c 2. a 3. c 4. a 5. b 6. c 7. c 8. b 9. b 10. a 11. c 12. a 13. b 14. d 15. a 16. d 17. a 18. a 19. a 20. b T/F: 1. a 2. b 3. b 4. b 5. b 6. b 7. a 150

8. a 9. b 10. b 11. b 12. b 13. a 14. b 15. a 16. a Fill in the Blank: 1. individuals 2. procedures 3. enabling 4. Procedure 5. executive 6. regulatory 7. social 8. President 9. New Deal 10. World War II Matching: 1. b 2. d 3. a 4. c 5. c 6. a 7. b 8. e 9. d Essay: 1. Administrative law does not delve into the substantive laws of administrative agencies.

For example, the standards used to decide whether a person is eligible for welfare benefits are not covered by administrative law.

2. The U.S. Constitution establishes many the powers of the national government, specifically the power of Congress to regulate interstate commerce and other matters. The Fifth Amendment and Fourteenth Amendments provide for the protections of due process of law and equal protection of laws. An enabling statute is a law passed by Congress that establishes an agency and sets forth the responsibilities and authority of that agency. The federal Administrative Procedure Act is a comprehensive statute governing the procedures that agencies must follow when performing their functions. An executive order is a declaration issued by the President without the approval of Congress.

3. The heads of executive agencies are directly answerable to the president and may be fired at the president’s will. The heads are therefore often very political. The heads can be influenced to act in a particular way for job survival where the President's direct control can influence policy. This can be positive or negative depending on whether one supports 151

or opposes presidential policy. Independent agencies have presidential oversight but the President cannot fire a head without just cause. Politics is less of an issue in terms of imposing regulations and enforcing policy. Heads are more influenced by public opinion than political agendas. Heads have more freedom and autonomy to make decisions. This can be positive or negative depending on whether one supports or opposes increased or comprehensive regulation.

4. Several factors have contributed to the growth in government and administrative agencies. First, the increasing interdependence of people is a significant factor. The second factor is the growing expectation of the public for its government to regulate in new ways. A third factor is the expectation that government will provide more services and benefits than in the early years of the Republic. A fourth factor is the increasing mobility of people.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

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Test Item File Chapter 2 Multiple Choice: 1. A direct popular government where the people vote on and decide all important issues is called: a. a republic b. socialism c. a democracy d. capitalism Answer: c Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 17 Level: Basic 2. The concept that federal law shall overrule any state or local law is based on: a. the Necessary and Proper Clause b. the Bill of Rights c. the Tenth Amendment d. the Supremacy Clause Answer: d Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 20 Level: Intermediate 3. Written judicial opinions are published in: a. reporters b. codes c. the Federal Register d. compendiums Answer: a Objective: Become familiar with the basic architecture and style of judicial opinions.

Page number: 19 Level: Intermediate 4. When the federal and state governments share the same power they are said to have: a. communal jurisdiction b. common jurisdiction c. combined jurisdiction d. concurrent jurisdiction Answer: d 153

Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 32 Level: Intermediate 5. Which amendment to the U.S. Constitution preserves state authority? a. the First Amendment b. the Fifth Amendment c. the Ninth Amendment d. the Tenth Amendment Answer: d Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 18 Level: Intermediate 6. Which article in the U.S. Constitution contains the Necessary and Proper Clause, which provides that Congress may enact all laws necessary and proper to carry out Congress’s other enumerated powers? a. Article I b. Article II c. Article III d. Article IV Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 20 Level: Intermediate 7. Executive prerogative to remove individual expenditures from a budget is called a: a. line item veto b. legislative item veto c. column item veto d. row item veto Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 48 Level: Intermediate 8. Which article in the U.S. Constitution provides for the appointment power of the President?

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a. Article I b. Article II c. Article III d. Article IV Answer: b Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 41 Level: Intermediate 9. Assuming concurrent jurisdiction, which of the following is not an example of when federal preemption exists? a. The federal government establishes a comprehensive scheme to regulate the area. b. Congress expressly preempts the area through legislation. c. The federal government regulates the area before the state. d. State law is inconsistent with federal law.

Answer: c Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 33 Level: Intermediate 10. The decision in INS v. Chadha established that: a. only the House of Representatives may invalidate a decision of an executive agency b. only the Senate may invalidate a decision of an executive agency c. only a bicameral legislative decision may invalidate a decision of an executive agency d. decisions of an executive agency may not be invalidated by anyone except the president Answer: c Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 48 Level: Intermediate 11. Which clause in the U.S. Constitution provides the president with a limited and qualified power to nullify proposed legislation by veto? a. Necessary and Proper Clause b. Supremacy Clause c. Presentment Clause d. Commerce Clause Answer: c Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

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Level: Difficult 12. Pursuant to statute, the power of appointment of special independent investigatory counsel is vested in: a. the president b. a special panel of House of Representative members c. a special panel of Senate members d. a special panel of federal judges Answer: d Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 41 Level: Difficult 13. What is the name of the federal statute enacted in 1883 that created the civil service system for federal employees?

A. Sarbanes-Oxley Act b. Pendleton Act c. Line Item Veto Act d. Patient Protection and Affordable Care Act Answer: b Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 45 Level: Intermediate 14. Which of the following is most accurate about James Madison and Alexander Hamilton’s views of federalism? a. Madison believed in dual federalism and Hamilton in hierarchical federalism. b. Madison and Hamilton both believed in dual federalism. c. Madison and Hamilton both believed in hierarchical federalism. d. Madison believed in hierarchical and Hamilton in dual federalism.

Answer: a Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 18 Level: Intermediate 15. The concept of separation of powers is based on a _____ division of power. a. horizontal b. vertical c. circular d. parallel Answer: a

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Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 38 Level: Intermediate 16. The President of the United States vetoes a law passed by Congress. Congress can override the presidential veto by a ____ majority vote. a. simple b. 2/3 c. 3/4 d. 4/5 Answer: b Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 39 Level: Basic 17. What is the name of the U.S. Supreme Court case where the Court invalidated the single-house legislative veto? a. Clinton v. New York b. INS v. Chadha c. Myers v. U.S. d. Buckley v. Valeo Answer: b Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 48 Level: Intermediate 18. What is the name of the U.S. Supreme Court case where the Court found the line-item veto unconstitutional? a. Clinton v. New York b. INS v. Chadha c. Myers v. U.S. d. Buckley v. Valeo Answer: a Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 48 Level: Intermediate

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19. Which of the following is NOT a power that the President of the United States can use to exercise control over administrative agencies? a. Recommend to Congress agency reorganization b. Establish policy c. Appoint agency heads d. Reverse agency-created rules Answer: d Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 47 Level: Intermediate 20. Which of the following is NOT a power that Congress can use to exercise control over administrative agencies? a. Create a new agency b. Establish the budget c. Unicameral legislative veto d. Call the agency head to testify before a Congressional committee Answer: c Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 47 Level: Intermediate True-False: 1. The purpose of separating powers among different branches of government is to prevent the centralization of power and abuse of citizens by government. a. True b. False Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 48 Level: Basic 2. Under the Commerce Clause, the federal government may compel a state to enact or administer a federal regulatory program. a. True b. False Answer: b Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

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Page number: 21 Level: Basic 3. Article II of the Constitution gives Congress the power to delegate the appointment of inferior agency officers to agency heads. a. True b. False Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 41 Level: Intermediate 4. Federal judges appointed under Article III of the Constitution are appointed for tenyear renewable terms. a. True b. False Answer: b Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 39 Level: Intermediate 5. The Necessary and Proper Clause of the Constitution is designed to provide that Congress may enact any laws it deems necessary and proper to ensure the health and welfare of the American people. a. True b. False Answer: b Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 20 Level: Intermediate 6. Article I, section 8 of the U.S. Constitution lists the powers of Congress. a. True b. False Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

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7. The power to regulate general health and welfare is an exclusive state power. a. True b. False Answer: a Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 19 Level: Basic 8. A legislative veto is a mechanism used by the president to invalidate Congressional enactments deemed procedurally unconstitutional. a. True b. False Answer: b Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 47 Level: Intermediate 9. Both federalism and separation of powers are structural elements found in the Constitution intended to keep any single group or person in government from becoming too powerful. a. True b. False Answer: a Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 18 Level: Intermediate 10. According to decisions of the Supreme Court, all federal employees are considered “officers” of the United States. a. True b. False Answer: b Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 43 Level: Intermediate 11. Congress can validly enact a statute that gives it the right to fire or remove heads of executive agencies. a. True b. False Answer: b 160

Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 41 Level: Intermediate 12. The Federal Trade Commission is an independent agency. a. True b. False Answer: a Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 42 Level: Basic 13. Generally, the U.S. Constitution does not address federal or state agencies. a. True b. False Answer: a Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 19 Level: Basic 14. The case of Clinton v. New York established that the independent counsel law was a valid and legal exercise of Article II of the Constitution. a. True b. False Answer: b Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 46 Level: Difficult 15. Borrowing money is an exclusive federal power. a. True b. False Answer: b Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 32 Level: Intermediate

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Fill-in-the-blank: 1. The concept of separation of powers is based on a _____ division of power.

Answer: horizontal Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 38 Level: Intermediate 2. A written law enacted by a legislative body is called a(n) _____.

Answer: statute Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 38 Level: Basic 3. The Attorney General of the United States is appointed by the _____.

Answer: President Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 41 Level: Basic 4. One provision found in Article I, section 8, clause 3 of the U.S. Constitution that has contributed to the growth of federal power is the _____ Clause.

Answer: Commerce Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 21 Level: Intermediate 5. The Secretary of the U.S. Department of Labor is called to testify before Congress concerning activities of the agency. Congress engages in oversight of agencies through _____.

Answer: committees Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 47 Level: Difficult 6. Federal judges are appointed for life and have lifetime tenure pursuant to Article ______ of the U.S. Constitution.

Answer: III 162

Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 39 Level: Intermediate 7. In INS v. Chadha, the U.S. Supreme Court invalidated the _____ veto, a mechanism used by Congress to invalidate agency action.

Answer: legislative Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 47-48 Level: Difficult 8. In Myers v. United States, the U.S. Supreme Court invalidated a statute that required Senate approval to fire postmasters holding that Article ______ of the U.S. Constitution grants to the President the executive power of the government.

Answer: II Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 42 Level: Difficult 9. In Morrison v. Olson, the U.S. Supreme Court upheld the validity of the ______ statute where a federal prosecutor is charged with investigating and prosecuting a government official.

Answer: independent counsel Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 41-42 Level: Difficult 10. In Clinton v. City of New York, the U.S. Supreme Court found that Congress violated the separation of powers in passing the _____ Act, a law that delegated to the president the power to strike individual expenditures from the congressionally enacted budget.

Answer: Line Item Veto Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 46 Level: Difficult Matching: 163

Match the clause in the U.S. Constitution in Column 1 to its description in Column 2.

Column 1 1. Commerce Clause

2. Necessary and Proper Clause

3. Supremacy Clause

Column 2 a. Provides that Congress may enact all laws necessary and proper to carry out Congress’s other enumerated powers b. States that Congress has the power to regulate interstate commerce, commerce with foreign nations, and commerce with Indian tribes c. Provides that properly enacted federal laws are superior to all state and local laws

1. *b 2. *a 3. *c Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: passim Level: Intermediate Match the governmental power in Column 1 to its category in Column 2.

Column 1 4. General Health and Welfare 5. Providing Education 6. Borrowing Money 7. Taxation

Column 2 a. Exclusive federal power b. Exclusive state power c. Concurrent power d. Power denied to both federal and state governments

8. Making treaties 9. Ex Post Facto Laws 10. Regulating Bankruptcy 4. *b 5. *b 6. *c 7. *c 8. *a 9. *d 10. *a Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

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Page number: passim Level: Intermediate Essay: 1. The doctrines of federalism and separation of powers prohibit 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 matters should outweigh the federal government’s right to do so? What, if anything, should be done?

Answer: Student answers will vary based on whether they believe in states’ rights or in increased federal regulation. The student should be able to state the facts and reasoning in the cases. Lopez involved an attempt to create federal legislation making the possession of a gun in a school zone a crime. Printz invalidated a provision of the Brady Handgun Violence Protection Act establishing a system of background checks on gun buyers and delegating to the states the responsibility to administer the programs until the federal government could take over. In both cases, the federal government claimed jurisdiction based on the Interstate Commerce Clause and the argument was rejected by both courts.

In answering this question, the student should give a logical and thoughtful explanation of federalism and what it means in the U.S. system. Many students will come to realize the quality of visionary thought exhibited by the constitution’s framers and the true separation of powers we have in this country. Students should also recognize the true inconsistencies that exist both from state to state and between the state and federal governments. Those who wish to grant the federal government more power will need to recognize that a change in policy will require a constitutional amendment and how difficult change actually is.

Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: passim Level: Difficult 2. Explain why the U.S. Supreme Court invalidated the legislative veto in INS v. Chadha.

Answer: The U.S. Supreme Court held that Congress could not bypass the bicameralism requirement (both the House and Senate must pass laws), nor could it remove the president from the process of making laws. The Court took a strict adherence to the doctrine of separation of powers.

Objective: Fully explain why agencies pose a challenge to the separation of powers control model. You should also be able to identify and describe this problem as it appears in a real-life setting.

Page number: 47-48 Level: Intermediate 3. Explain why the U.S. Supreme Court invalidated the line item veto in Clinton v. City of New York.

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Answer: Based on the same reasoning in INS v. Chadha, the U.S. Supreme Court held that Congress could not bypass the bicameralism requirement (both the House and Senate must pass laws) with the line item veto. The Court took a strict adherence to the doctrine of separation of powers.

Objective: Identify and describe the major structural characteristics of the U.S. government and provisions of the Constitution of the United States that are intended to divide governmental authority and, hence, reduce abuses of authority.

Page number: 46-47 Level: Intermediate Critical Thinking: 1. Which method do you think is the most effective power of Congress to control the federal bureaucracy? Explain.

Answer: Student answers will vary.

Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 47 Level: Difficult 2. Which method do you think is the most effective power of the President to control the federal bureaucracy? Explain.

Answer: Student answers will vary.

Objective: List and describe the structural controls of administrative agencies that exist in the U.S. government.

Page number: 40 Level: Difficult MC: 1. c 2. d 3. a 4. d 5. d 6. a 7. a 8. b 9. c 10. c 11. c 12. d 13. b 14. a 15. a 16. b 17. b 18. a 166

19. d 20. c T/F: 1. a 2. b 3. a 4. b 5. b 6. a 7. a 8. b 9. a 10. b 11. b 12. a 13. a 14. b 15. b Fill in the Blank: 1. horizontal 2. statute 3. President 4. Commerce 5. committees 6. III 7. legislative 8. II 9. independent counsel 10. Line Item Veto Matching: 1. b 2. a 3. c 4. b 5. b 6. c 7. c 8. a 9. d 10. a Essay: 1. Student answers will vary based on whether they believe in states’ rights or in increased federal regulation. The student should be able to state the facts and reasoning in the cases. Lopez involved an attempt to create federal legislation making the possession of a gun in a school zone a crime. Printz invalidated a provision of the Brady Handgun Violence Protection Act establishing a system of background checks on gun buyers and 167

delegating to the states the responsibility to administer the programs until the federal government could take over. In both cases, the federal government claimed jurisdiction based on the Interstate Commerce Clause and the argument was rejected by both courts.

In answering this question, the student should give a logical and thoughtful explanation of federalism and what it means in the U.S. system. Many students will come to realize the quality of visionary thought exhibited by the constitution’s framers and the true separation of powers we have in this country. Students should also recognize the true inconsistencies that exist both from state to state and between the state and federal governments. Those who wish to grant the federal government more power will need to recognize that a change in policy will require a constitutional amendment and how difficult change actually is.

2. The U.S. Supreme Court held that Congress could not bypass the bicameralism requirement (both the House and Senate must pass laws), nor could it remove the president from the process of making laws. The Court took a strict adherence to the doctrine of separation of powers.

3. Based on the same reasoning in INS v. Chadha, the U.S. Supreme Court held that Congress could not bypass the bicameralism requirement (both the House and Senate must pass laws) with the line item veto. The Court took a strict adherence to the doctrine of separation of powers.

Critical Thinking: 1. Student answers will vary.

1. Student answers will vary.

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Test Item File Chapter 3 Multiple Choice: 1. When an agency has authority to choose between two or more alternatives, the agency is said to have _____. a. enablement b. discretion c. statutory prerogative d. administrative privilege Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 54 Level: Basic 2. Which of the following is not a limitation on agency discretion? a. The law b. Enforcement of criminal sanctions against the agency head c. Public accountability d. All of the above are limitations on agency discretion.

Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 56 Level: Basic 3. What is the administrative equivalent of a judicial declaratory judgment? a. Declaratory order b. Private letter ruling c. Executive order d. Advisory opinion Answer: a Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 4. What is an opinion issued by an agency, upon request, that offers the agency’s interpretation of law or asserts the agency’s policy, practices, or procedures? a. Declaratory order b. Judicial opinion c. Executive order 169

d. Advisory opinion Answer: d Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 5. Private letter rulings are issued by high officials of the: a. U.S. Department of Commerce b. Internal Revenue Service c. Occupational Safety and Health Administration d. Federal Mediation and Conciliation Service Answer: b Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 6. What is the name of the federal law that limits the issuance of declaratory orders to situations in which a formal adjudication is required? a. Declaratory Order Act b. Administrative Procedures Act (APA) c. Federal Arbitration Act d. Declaratory Procedure Act Answer: b Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 67 Level: Intermediate 7. Which of the following limits the exercise of agency discretion? a. The Due Process Clause b. The Equal Protection Clause c. The Due Process Clause and the Equal Protection Clause d. Agency discretion is not limited by anything other than its enabling statute.

Answer: c Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 63 Level: Intermediate 8. What type of agency actions is considered the lifeblood of the administrative process? a. Formal processes b. Informal processes c. Formal rulemaking 170

d. All of the above Answer: b Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process.

Page number: 54 Level: Intermediate 9. Disagreement with an agency’s policy decision is not the proper basis for a lawsuit. a. The ultra vires doctrine b. Elian’s Law c. The Chevron Doctrine d. Agency immunity Answer: c Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 58 Level: Intermediate 10. Which term describes a situation where an agency exceeds its statutory mandate and acts outside of the scope or legal limits? a. Ultra vires b. Advisory opinion c. The Chevron Doctrine d. Agency immunity Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 58 Level: Intermediate 11. When agencies act informally: a. fairness is rarely an issue b. there are often few or no procedures to protect individuals c. there are always defined rules and standards designed to protect individuals d. Because they are created by statute, agencies never act informally.

Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 54 Level: Intermediate 12. In which of the following cases did the court state “the courts retain the authority to check agency policymaking for procedural compliance and for arbitrariness.

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But the courts cannot properly reexamine the wisdom of an agency-promulgated policy…”? a. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. b. Brock v. Roadway Express, Inc. c. Gonzalez v. Reno d. General Motors v. Federal Energy Regulatory Commission Answer: c Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 61 Level: Difficult 13. The Federal Mediation and Conciliation Service acts as the mediator in labor disputes regarding: a. any disputes involving interstate commerce b. any disputes involving intrastate commerce c. any disputes involving foreign commerce d. all of the above Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Intermediate 14. Which type of dispute resolution involves a process of having the parties to a dispute present their evidence and arguments to a neutral third party for decision? a. Mediation b. Conciliation c. Arbitration d. Mini-trial Answer: c Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Intermediate 15. Which of the following may a prosecutor consider when making a decision on whether to prosecute? a. race b. gender c. religion d. expense of prosecution Answer: d 172

Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 57 Level: Basic 16. Which of the following cases stated that, “If an agency considers all of the relevant factors so that a court can satisfy itself that the agency has actually exercised its discretion, an agency’s decision to refrain from investigation is unreviewable…”? a. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. b. Brock v. Roadway Express, Inc. c. Gonzalez v. Reno d. General Motors v. Federal Energy Regulatory Commission Answer: d Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 57 Level: Difficult 17. Joseph is a physician. His state’s licensing agency has received a large number of complaints about him, and recently two of his patients have mysteriously died while under his care. The licensing agency revokes his license to practice medicine in a summary proceeding without a hearing. a. Summary protective actions are always per se violative of equal protection. b. Summary protective actions are always per se violative of due process. c. Summary protective actions are not per se violative of equal protection if an immediate post-action hearing is conducted. d. Summary protective actions are not per se violative of due process if an immediate post-action hearing is conducted.

Answer: d Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 64 Level: Difficult 18. Which of the following is not a method that may be available to an agency charged with protection of the public? a. A mandatory recall of a defective product b. Imposing mandatory and binding arbitration regarding the agency’s dispute with a manufacturer producing a defective product without prior agreement c. Issuance of a cease and desist order stopping production of a defective product d. All of the above can be valid exercises of an agency’s right to protect the public.

Answer: b

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Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Difficult 19. Agencies are often charged with the establishment of testing and inspection to monitor legal compliance. Assuming a valid exercise of the agency’s discretion, which of the following may be successfully challenged? a. Whether a test should be conducted b. The validity or reliability of a test c. When a test should be performed d. Where a test is to be performed Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 65 Level: Intermediate 20. If Congress has left a gap in an agency’s enabling statute regarding the making of rules necessary for the formulation of agency policy: a. the statute is rendered void due to vagueness b. the court may fill any gaps by interpreting the statute c. the agency is given an express delegation of authority to create any necessary provisions to fulfill the agency’s function d. the statute is sent back to Congress for further explanation and repair Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 58 Level: Intermediate 21. Which of the following is known as the “lifeblood of the administrative process?” a. Formal rulemaking b. Adjudication c. Informal procedures d. Ultra vires Answer: c Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process.

Page number: 54 Level: Basic

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True-False: 1. All agency actions, both formal and informal, are strictly governed by the agency’s enabling statute. a. True b. False Answer: b Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 58 Level: Intermediate 2. Agency decisions not to act are rarely successfully challenged. a. True b. False Answer: a Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 56 Level: Basic 3. The Department of Justice is responsible for enforcing criminal and civil statutes. a. True b. False Answer: b Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 56 Level: Intermediate 4. Prosecutorial discretion to plea bargain in criminal cases is constitutionally protected and therefore valid in all 50 states. a. True b. False Answer: b Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 56 Level: Basic 5. A great majority of agency actions are informal. a. True b. False Answer: a Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process.

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Level: Basic 6. The processing of claims and applications by individual agencies is required to be strictly uniform from agency to agency to reduce the public’s confusion and to promote due process and equal protection. a. True b. False Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 63 Level: Basic 7. Depending upon its enabling statute, an agency charged with protecting the public may have the right to represent the public and seek civil and/or criminal penalties against wrongdoers. a. True b. False Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 63 Level: Intermediate 8. Mediation is also known as conciliation. a. True b. False Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Basic 9. When a court reviews an agency’s application of a statute that it administers, if Congress has not specifically addressed the question at issue, the court may use its own interpretation of the statute’s application to decide the issue. a. True b. False Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

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Level: Intermediate 10. A declaratory order has the same effect as an order resulting from adjudications. a. True b. False Answer: a Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 11. An advisory opinion has the same effect as an order resulting from adjudications. a. True b. False Answer: a Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 12. If it appears that a crime has been committed, the prosecutor is required to conduct an investigation and may not selectively investigate or prosecute suspected criminals. a. True b. False Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 56 Level: Difficult 13. Arbitration results in a final decision. a. True b. False Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Basic 14. Mediation results in a final decision. a. True b. False Answer: b

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Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Basic 15. The Federal Mediation and Conciliation Service has no authority to compel arbitration but it is charged, by statute, to encourage arbitration. a. True b. False Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Intermediate 16. Declaratory orders are subject to judicial review. a. True b. False Answer: a Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 66 Level: Basic 17. Private letter rulings are formal and binding rulings. a. True b. False Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 66 Level: Basic 18. Agencies may not interpret statutes unless expressly authorized to do so by Congress. a. True b. False Answer: b Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

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19. Formal rulemaking is known as the “lifeblood of the administrative process.” a. True b. False Answer: b Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process.

Page number: 54 Level: Basic Fill-in-the-blank: 1. An agency has ______ when it has the authority to choose between two or more options.

Answer: discretion Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 54 Level: Intermediate 2. Informal agency procedures that fall outside of rulemaking and adjudication constitute the bulk of administrative work and are considered the _____ of the administrative process.

Answer: lifeblood Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process.

Level: Intermediate 3. A taxpayer that is not sure if a particular deduction is valid can request a(n) _____ opinion from the agency that offers the agency’s interpretation of law or asserts the agency’s policy, practices, or procedures.

Answer: advisory Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 4. The APA provides that an agency may issue a(n) _____ order to resolve questions of law that have arisen but have not yet been contested.

Answer: declaratory Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate 5. The Federal Mediation and Conciliation Service (FMCS) acts as ____ in labor disputes

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that affect interstate commerce and encourages parties to engage in arbitration to resolve their disputes.

Answer: mediator Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 67 Level: Difficult 6. After denial of a claim by agency officials, a dissatisfied claimant for government benefits may have a hearing before a(n) ____.

Answer: administrative law judge Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 63 Level: Difficult 7. As a general rule, the courts are to defer to an agency’s _____ of its congressional mandates.

Answer: interpretation Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 58 Level: Intermediate 8. Prosecutorial discretion includes deciding whom to _____ and prosecute.

Answer: investigate Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 56 Level: Intermediate 9. A prosecutor may not consider a person's ____, gender, or religious affiliation when making a decision on whether to prosecute.

Answer: race Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 57 Level: Intermediate 10. Under the APA, declaratory orders are subject to ____ review by the courts for abuses of discretion.

Answer: judicial Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

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Level: Difficult 11. A declaratory order is a(n) _____ equivalent of a judicial declaratory judgment.

Answer: administrative Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Basic Matching: Match the key term in Column 1 to its description in Column 2.

Column 1 1. Arbitration

2. Ultra Vires 3. Advisory Opinion

4. Mediation

5. Declaratory Order

Column 2 a. Process of having a neutral third party intervene in a dispute in an attempt to assist the parties in reaching a resolution b. Administrative equivalent of a judicial declaratory judgment c. Opinion issued by an agency, upon request, that offers the agency’s interpretation of law or asserts the agency’s policy, practices, or procedures d. Process of having the parties to a dispute present their evidence and arguments to a neutral third party for decision e. Acting outside the scope or legal limits

1. *d 2. *e 3. *c 4. *a 5. *b Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: passim Level: Intermediate Essay: 1. Discuss the different factors that can and cannot be used by an agency in determining who shall be prosecuted.

Answer: Factors include the likelihood of victory at trial, the seriousness of the violation, the expense of prosecution, the deterrent effect of such a prosecution, and the need to 181

resolve presented legal or factual issues. A prosecutor may not employ unconstitutional criteria, such as race, gender, or religious affiliation, when making a decision on whether to prosecute.

Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: 57 Level: Difficult 2. Discuss the three different forms of commonly exercised discretion by agency officials.

Answer: Three different forms of commonly exercised discretion by agency officials are policy discretion, prosecutorial discretion, and processing claims and applications. If Congress is not clear on a subject within an agency’s jurisdiction, the agency’s decision is to be respected by a reviewing court unless that decision is unreasonable. Agencies exercise discretion to decide who shall be prosecuted. Agencies also have discretion for establishing policies to govern the processing of claims and applications.

Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: passim Level: Difficult 3. In Gonzales v. Reno the court chose to uphold the INS right to make a policy decision in the absence of Congressional direction. They did make known that they “are not untroubled 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?

Answer: Student answers will vary; however, certain points should be addressed. These points might include: Due process and equal protection must always be preserved when decisions are made.

It is difficult if not impossible to allow total decision making discretion absent any guidelines and still maintain any consistency.

A lack of consistency will lead to public confusion and public distrust.

Fairness is often subject to interpretation, so inconsistent application of rules will lead to innumerable lawsuits and controversies.

Workload, time, and costs will limit an agency's ability to do individual investigations in every case.

Too much discretionary leeway can lead to the influx of politics into agency decision making.

General potential discretionary abuse situations might include:

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If Elian were granted asylum solely because it’s better to live in a democracy rather than a dictatorship, might it be also true that a rich parent should get custody of a child rather than the poor parent because it's better to have money than not?

Might a divorced parent who remarries get custody over the single-parent exspouse solely because a two-adult home is often more stable than a one-parent home?

Although unconstitutional, might an absence of guidelines lead to the subtle reintroduction of race, sex, religion, and other attributes into decision-making in a covert or indirect fashion?

Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: 58-62 Level: Difficult 4. Discuss how the Internal Revenue Service (IRS) uses advisory opinions.

Answer: An advisory opinion is an opinion issued by an agency, upon request, that offers the agency’s interpretation of law or asserts the agency’s policy, practices, or procedures. The Internal Revenue Service (IRS) has two forms of advisory opinions: private letter rulings, which can be relied on only by the requesting party; and formal rulings, which are for the public at large. Private letter rulings may be issued by agents in the field, but formal rulings must be cleared by officials higher in the IRS administration.

Objective: Define advisory opinions and declaratory orders and explain how they are used in practice.

Page number: 66 Level: Intermediate Critical Thinking: 1. Which form of agency discretion do you think is the more powerful tool for an agency—prosecutorial discretion or policy discretion? Explain your position.

Answer: Student answers will vary.

Objective: Identify three different forms of commonly exercised discretion by agency officials.

Page number: passim Level: Difficult 2. In 2013, the Internal Revenue Service (IRS) revealed that it had targeted political groups applying for tax-exempt status for closer scrutiny based on their names or political themes. Discuss how too much discretion afforded to the IRS caused this abuse of authority.

Answer: Student answers will vary.

Objective: Explain why too little discretion and too much discretion in government officials both present the possibility of abuse of authority. You should also be able to apply this understanding to real-life scenarios.

Page number: passim Level: Difficult

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MC: 1. b 2. b 3. a 4. d 5. b 6. b 7. c 8. b 9. c 10. a 11. b 12. c 13. a 14. c 15. d 16. d 17. d 18. b 19. b 20. b 21. c T/F: 1. b 2. a 3. b 4. b 5. a 6. b 7. a 8. a 9. b 10. a 11. a 12. b 13. a 14. b 15. a 16. a 17. b 18. b 19. b Fill in the Blank: 1. discretion 2. lifeblood 184

3. advisory 4. declaratory 5. mediator 6. administrative law judge 7. interpretation 8. investigate 9. race 10. judicial 11. administrative Matching: 1. d 2. e 3. c 4. a 5. b Essay: 1. Factors include the likelihood of victory at trial, the seriousness of the violation, the expense of prosecution, the deterrent effect of such a prosecution, and the need to resolve presented legal or factual issues. A prosecutor may not employ unconstitutional criteria, such as race, gender, or religious affiliation, when making a decision on whether to prosecute.

2. Three different forms of commonly exercised discretion by agency officials are policy discretion, prosecutorial discretion, and processing claims and applications. If Congress is not clear on a subject within an agency’s jurisdiction, the agency’s decision is to be respected by a reviewing court unless that decision is unreasonable. Agencies exercise discretion to decide who shall be prosecuted. Agencies also have discretion for establishing policies to govern the processing of claims and applications.

3. Student answers will vary, however certain points should be addressed. These points might include: Due process and equal protection must always be preserved when decisions are made.

It is difficult if not impossible to allow total decision making discretion absent any guidelines and still maintain any consistency.

A lack of consistency will lead to public confusion and public distrust.

Fairness is often subject to interpretation, so inconsistent application of rules will lead to innumerable lawsuits and controversies.

Workload, time, and costs will limit an agency's ability to do individual investigations in every case.

Too much discretionary leeway can lead to the influx of politics into agency decision making.

General potential discretionary abuse situations might include: If Elian were granted asylum solely because it’s better to live in a democracy rather than a dictatorship, might it be also true that a rich parent should get custody of a child rather than the poor parent because it's better to have money than not?

Might a divorced parent who remarries get custody over the single-parent ex-spouse solely because a two-adult home is often more stable than a one-parent home?

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Although unconstitutional, might an absence of guidelines lead to the subtle reintroduction of race, sex, religion, and other attributes into decision-making in a covert or indirect fashion?

4. An advisory opinion is an opinion issued by an agency, upon request, that offers the agency’s interpretation of law or asserts the agency’s policy, practices, or procedures. The Internal Revenue Service (IRS) has two forms of advisory opinions: private letter rulings, which can be relied on only by the requesting party; and formal rulings, which are for the public at large. Private letter rulings may be issued by agents in the field, but formal rulings must be cleared by officials higher in the IRS administration.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

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Test Item File Chapter 4 Multiple Choice: 1. Requirements that a law be related to a governmental purpose are described as: a. procedural due process b. substantive due process c. practical due process d. substantial due process Answer: b Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 71 Level: Intermediate 2. Which of the following is the least stringent due process test? a. The substantial relationship test b. The strict scrutiny test c. The reasonable relationship test d. The rational relationship test Answer: d Objective: Describe the three review standards for due process and equal protection cases.

Page number: 71 Level: Basic 3. A person’s interest in their good name and reputation is considered: a. a protected liberty interest b. a tangible property interest c. a protected life interest d. all of the above Answer: a Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 73 Level: Intermediate 4. When the government decides to impose a licensure requirement: a. due process must be satisfied b. equal protection must be satisfied c. due process and equal protection must be satisfied d. None of the above. The government is not subject to limitations when setting rules or requirements for conduct.

Answer: c Objective: Apply the correct due process and equal protection review standard to factual 187

scenarios.

Page number: 80 Level: Intermediate 5. Which of the following cannot be revoked or terminated without a formal predetermination hearing? a. A driver’s license when substantial violations have occurred b. Public education opportunities when facing a ten-day suspension c. An individual's job when the individual faces a felony indictment d. Welfare benefits Answer: d Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 85 Level: Intermediate 6. Which of the following is not a factor that a court examines when determining the need for a predetermination or postdetermination hearing? a. Additional harm to the individual from not requiring the hearing b. Likelihood of error without additional safety aids c. The historical accuracy of past agency decisions d. The costs and burdens imposed by requiring additional procedures Answer: c Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 85 Level: Difficult 7. Courts have determined that a predetermination hearing is required in which of the following? a. Disability benefits b. Welfare benefits c. Unemployment benefits d. All of the above require a predetermination hearing. e. None of the above requires a predetermination hearing.

Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 85 Level: Intermediate

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8. A condition that is permanent or outside a person’s control is called a/an: a. immutable condition b. integral condition c. fundamental condition d. primary condition Answer: a Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 97 Level: Intermediate 9. When a fundamental right is being significantly burdened, which test is applied to determine the validity of the rule or law? a. The substantial relationship test b. The strict scrutiny test c. The reasonable relationship test d. The rational relationship test Answer: b Objective: Describe the three review standards for due process and equal protection cases.

Page number: 97 Level: Intermediate 10. Interpretation of the Fifteenth Amendment was the primary issue in: a. Goss v. Lopez b. Perry v. Sindermann c. Goldberg v. Kelly d. Rice v. Cayetano Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 107 Level: Difficult 11. Which of the following is not a required, integral part of due process notice? a. Date, time, and location of the hearing b. Basic facts and charges that the hearing will address c. The name and position of the specific person in charge of the hearing d. All of the above are required, integral parts of due process notice. e. None of the above is a required, integral part of due process notice.

Answer: c Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 83 Level: Intermediate 189

12. Notice of a hearing, in most cases, is accomplished by: a. telephone call b. e-mail c. first-class or registered mail d. subpoena Answer: c Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 84 Level: Basic 13. All racial classifications are subject to: a. the substantial relationship test b. the strict scrutiny test c. the reasonable relationship test d. the rational relationship test Answer: b Objective: Describe the three review standards for due process and equal protection cases.

Page number: 97 Level: Basic 14. Which of the following cases specifically addressed the issues of quotas in affirmative action cases, declaring quotas violative of equal protection? a. Regents of University of California v. Bakke b. Grutter v. Bollinger c. Gratz v. Bollinger d. All of the above e. None of the above. Quotas are permissible to achieve Affirmative Action goals.

Answer: b Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 100 Level: Difficult 15. Government entitlements such as welfare are viewed as: a. rights b. privileges c. rights and privileges d. neither rights nor privileges Answer: b Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 73 Level: Intermediate 190

16. Following the Goldberg decision, which of the following is an incorrect statement? a. Eighty percent of those who demanded a Goldberg hearing were determined ineligible for welfare benefits, as initially determined. b. Ninety-two percent of Goldberg-type appeals were lost. c. The cost to provide benefits to the 92% of applicants who lost their appeals in Michigan alone was approximately half a million dollars in 1971. d. Most termination decisions were appealed.

Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 86 Level: Difficult 17. The equal protection clause applies to: a. state law only regardless of the source b. federal law only regardless of the source c. state law and federal law only regardless of the source d. state law and federal law only in relation to administrative agencies Answer: c Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 70 Level: Intermediate 18.Which of the following is violative of equal protection? a. A law requiring a person to be 21 years old to buy or consume beer or liquor b. A rule requiring a person applying for a bar examination to have graduated law school c. A law requiring a person to be 17 years old to obtain a driver’s license d. A law requiring a city police force to be at least 40% female Answer: d Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 71 Level: Intermediate 19. Which test does the United States Supreme Court require to be used when examining laws involving illegitimate children? a. The substantial relationship test b. The strict scrutiny test c. The reasonable relationship test d. The rational relationship test Answer: a Objective: Apply the correct due process and equal protection review standard to factual 191

scenarios.

Page number: 97 Level: Intermediate 20. Which test does the United States Supreme Court require to be used when examining laws involving gender-based classifications? a. The substantial relationship test b. The strict scrutiny test c. The reasonable relationship test d. The rational relationship test Answer: a Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 97 Level: Intermediate 21. Which of the following is a consideration in due process cost-benefit analysis? a. Where the hearing is held b. When the hearing is held c. What type of hearing is held d. All of the above Answer: d Objective: Describe due process cost-benefit analysis.

Page number: 84 Level: Basic 22. Which of the following best describes the applicability of the First Amendment’s Free Speech Clause to work-related speech of government employees? a. The First Amendment is fully applicable to work-related speech. b. The First Amendment does not apply to work-related speech. c. The First Amendment does not apply to work-related speech if the government can show a compelling interest for its nonprotection. d. The First Amendment protects only work-related speech and not other speech of government employees.

Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 78-79 Level: Difficult 23. When a government employee speaks out about his agency, but not as part of his or her duties, the expression: a. is not protected by the First Amendment b. is not protected by the First Amendment unless the employee is a recognized expert in the subject 192

c. is protected by the First Amendment in all circumstances d. is protected by the First Amendment if the speech rises to the level of a public concern Answer: d Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 78-79 Level: Difficult True-False 1. At one time, interests in receiving governmental rights or entitlements were not covered by due process requirements. a. True b. False Answer: a Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 73 Level: Basic 2. A legitimate expectation of receiving a benefit is called an entitlement. a. True b. False Answer: a Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 73 Level: Basic 3. The government must satisfy the Due Process and Equal Protection Clauses when issuing, suspending, or revoking licenses. a. True b. False Answer: a Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 80 Level: Basic 4. In Perry v. Sindermann, the court determined that college and university tenure rules and requirements must be in writing and may not be informal or casually applied for the faculty to have a legitimate interest or expectation. a. True b. False 193

Answer: a Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 74 Level: Difficult 5. The Equal Protection Clause has been interpreted to apply to both states and the federal government. a. True b. False Answer: a Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 94 Level: Intermediate 6. Evidentiary hearings are not necessary when the central facts of the case are test results or other scientific information. a. True b. False Answer: a Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 85 Level: Intermediate 7. If an issue is purely legal, an agency may limit the party’s participation in a hearing to a written submission arguing the law. a. True b. False Answer: a Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 85 Level: Basic 8. Due process always requires that a formal hearing be conducted. a. True b. False Answer: b Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 85 Level: Intermediate

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9. Protection of the public health and safety is the most common justification for summary administrative action. a. True b. False Answer: a Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 84 Level: Intermediate 10. Any time that a law is enacted or a decision is made that is based on classifications, equal protection is violated. a. True b. False Answer: b Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 94 Level: Intermediate 11. Any time that race is used directly or indirectly to formulate policy, the law is violated and the policy is illegal. a. True b. False Answer: b Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 100 Level: Intermediate 12. The APA mandates allowing counsel at all federal hearings. a. True b. False Answer: a Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 94 Level: Intermediate 13. The Equal Protection Clause is implicitly applied to federal government actions through the Fifteenth Amendment. a. True b. False Answer: b

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Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 94 Level: Basic 14. The APA requires that all federal administrative hearings be held in Washington, DC. a. True b. False Answer: b Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 84 Level: Intermediate 15. Nonprobationary government employees are entitled to evidentiary presuspension hearings. a. True b. False Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 88 Level: Intermediate 16. The cost of an additional procedure is a factor in due process cost-benefit analysis. a. True b. False Answer: a Objective: Describe due process cost-benefit analysis.

Page number: 83 Level: Basic 17. Affirmative action programs encourage the use of quotas to attain hiring goals designed to provide advantages to historically disadvantaged groups. a. True b. False Answer: b Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 100 Level: Intermediate

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18. A federal law classifies people by religion. The strict scrutiny test is applied to determine if the action is constitutional. a. True b. False Answer: a Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 110 Level: Intermediate 19. All racial classification systems are subject to the rational basis test. a. True b. False Answer: b Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 100 Level: Intermediate 20. A state law classifies people by gender. The strict scrutiny test will always be applied to determine if the action is constitutional. a. True b. False Answer: b Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 110 Level: Difficult Fill-in-the-blank: 1. _____ due process describes the minimum steps that must be taken by a government before it can deprive a person of life, liberty, or property.

Answer: Procedural Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 70 Level: Intermediate 2. If a law encroaches upon civil liberties or classifies individuals using certain criteria, it is held to a higher standard under _____ due process.

Answer: substantive Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 71 Level: Intermediate

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3. Once it is determined that due process must be afforded, courts employ a _____ analysis when deciding what procedure must be afforded.

Answer: cost-benefit Objective: Describe due process cost-benefit analysis.

Page number: 82 Level: Basic 4. Due process cost-benefit analysis focuses on the costs and benefits of additional _____.

Answer: procedures Objective: Describe due process cost-benefit analysis.

Page number: 83 Level: Intermediate 5. The U.S. Constitution has two Due Process Clauses: one in the Fifth Amendment, which applies to the federal government, and another in the ______ Amendment, which applies to the states.

Answer: Fourteenth Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 110 Level: Basic 6. Under the strict scrutiny test, a law is valid only if it furthers a _____ governmental interest and reasonable alternatives don’t exist.

Answer: compelling Objective: Describe the three review standards for due process and equal protection cases.

Page number: 71 Level: Intermediate 7. Under the intermediate test, a law must bear a ____ relationship to an important governmental interest.

Answer: substantial Objective: Describe the three review standards for due process and equal protection cases.

Page number: 97 Level: Intermediate 8. Under the rational relationship test, a law must bear a rational relationship to a _____ governmental interest.

Answer: legitimate Objective: Describe the three review standards for due process and equal protection cases.

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Level: Intermediate 9. A state law that prohibits aliens from holding public office falls under the ____ relationship test.

Answer: rational Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 97 Level: Difficult 10. A gender-based classification in a state law preferring men as executors of estates was found to violate equal protection under the _____ test.

Answer: intermediate Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 97 Level: Difficult 11. A state law that prohibits members of a certain race from applying for medical licenses would be _____ on its face.

Answer: discriminatory Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 97 Level: Difficult 12. In Goldberg v. Kelly, the U.S. Supreme Court held that welfare recipients have a right to an evidentiary ____ before having their benefits terminated.

Answer: hearing Objective: Apply due process cost-benefit analysis to factual scenarios where the government is seeking to deprive a person of a protected interest, reaching a conclusion about the minimal process that must be followed.

Page number: 85-86 Level: Basic Matching: Match the type of government action in Column 1 to the appropriate standard of review in Column 2.

Column 1 1. Government regulates a fundamental right 2. Classification based on race

Column 2 a. Rational relationship test

3. Classification based on gender

c. Strict scrutiny test

b. Substantial relationship test

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4. Classification based on religion 5. Classification based on illegitimacy 6. Law that encroaches upon a person’s substantive or procedural right 7. Law that prohibits aliens from voting 1. *c 2. *c 3. *b 4. *c 5. *b 6. *c 7. *a Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: passim Level: Difficult Match the standard of review in Column 1 to the description in Column 2.

Column 1 1. Rational relationship test

2. Intermediate test

3. Strict scrutiny test

Column 2 a. Law is valid if it is substantially related to a lawful government objective b. Law is valid only if it furthers a compelling governmental interest and reasonable alternatives don’t exist c. Law is valid if it bears a rational relationship to a lawful governmental objective

8. *c 9. *a 10. *b Objective: Describe the three review standards for due process and equal protection cases.

Page number: 72 Level: Intermediate 200

Essay: 1. Name the 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 could one test suffice?

Answer: The three tests are the rational relationship test, the substantial relationship test, and the strict scrutiny test.

• The rational relationship test requires that the objective of the law was itself lawful and that the law bears a rational (cogent and explainable) relationship to that objective. Most laws subjected to this test are found valid.

• The strict scrutiny test requires that the law be shown to be necessary to further a compelling government interest. Most laws subjected to this test are found invalid.

• The substantial relationship test is an intermediary test that requires the government to show that the law bears a substantial (significant) relationship to an important governmental interest. The exact parameters of this test are not precisely defined and are currently being shaped through case law.

Student answers will vary regarding the need for three separate tests.

Objective: Describe the three review standards for due process and equal protection cases.

Page number: 72 Level: Difficult 2. Discuss the different questions to determine what must be done to satisfy due process in the cost-benefit analysis before a life, liberty, or property interest may be taken by the government.

Answer: Courts use the cost-benefit analysis when determining exactly what must be done to satisfy due process. The government must look at the "where, when, and what" type of hearing is needed.

Where: First, due process requires that hearings be held in such a place that those interested will not be severely burdened by appearing.

What: Another important question is what type of hearing must be conducted to satisfy due process.

When: Another important question is what type of hearing must be conducted to satisfy due process.

Objective: Describe due process cost-benefit analysis.

Page number: 82-84 Level: Difficult 3. A federal statute prohibits federally licensed firearms dealers from selling handguns to persons under age of 21. An organization advocating for gun ownership and individual gun owners brings an action against the Bureau of Alcohol, Firearms, Tobacco, and Explosives arguing that the statute violates the Second and Fifth Amendments. Discuss which equal protection review standard the court would apply.

Answer: The court would apply the rational basis test. Unlike race-or gender-based classifications, which require a tighter fit between the discriminatory means and the legitimate ends they serve, the government may discriminate on the basis of age without 201

offending the constitutional guarantee of equal protection if the age classification in question is rationally related to a legitimate state interest. See NRA v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012).

Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 72 Level: Difficult 4. Discuss the main three interests protected by the Due Process Clauses.

Answer: The three interests protected by the Due Process Clauses are life, liberty, and property. If life is threatened by agency action, due process must be afforded to the threatened person. Liberty encompasses a multitude of personal freedoms. The right to move about as one pleases, without governmental interference, is an example. A person may have a property interest in tangible or intangible property. Automobiles, houses, money, and jewelry are examples of tangible property. Courts have examined whether entitlements and governmental employment are considered property interests.

Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 72-73 Level: Difficult Critical Thinking: 1. Not all classifications are violative of equal protection. Discuss whether you think sexual orientation should be considered a protected classification under the Equal Protection Clause. Explain your position.

Answer: Student answers will vary.

Objective: Apply the correct due process and equal protection review standard to factual scenarios.

Page number: 97 Level: Difficult 2. Under which circumstances could the government send notice via e-mail or via text message rather than first-class or registered mail without violating the notice requirement under the Due Process Clauses?

Answer: Student answers will vary.

Objective: Identify the various forms of rights secured by the Due Process and Equal Protection Clauses.

Page number: 84 Level: Difficult

MC: 1. b 2. d 3. a 202

4. c 5. d 6. c 7. b 8. a 9. b 10. b 11. c 12. c 13. b 14. b 15. b 16. b 17. c 18. d 19. a 20. a 21. d 22. b 23. d T/F: 1. a 2. a 3. a 4. a 5. a 6. a 7. a 8. b 9. a 10. b 11. b 12. a 13. b 14. b 15. b 16. a 17. b 18. a 19. b 20. b Fill in the Blank: 1. Procedural 2. substantive 3. cost-benefit 4. procedures 203

5. Fourteenth 6. compelling 7. substantial 8. legitimate 9. rational 10. intermediate 11. discriminatory 12. hearing Matching: 1. c 2. c 3. b 4. c 5. b 6. c 7. a 8. c 9. a 10. b Essay: 1. The three tests are the rational relationship test, the substantial relationship test, and the strict scrutiny test.

• The rational relationship test requires that the objective of the law was itself lawful and that the law bears a rational (cogent and explainable) relationship to that objective. Most laws subjected to this test are found valid.

• The strict scrutiny test requires that the law be shown to be necessary to further a compelling government interest. Most laws subjected to this test are found invalid.

• The substantial relationship test is an intermediary test that requires the government to show that the law bears a substantial (significant) relationship to an important governmental interest. The exact parameters of this test are not precisely defined and are currently being shaped through case law.

Student answers will vary regarding the need for three separate tests.

2. Courts use the cost-benefit analysis when determining exactly what must be done to satisfy due process. The government must look at the "where, when, and what" type of hearing is needed.

Where: First, due process requires that hearings be held in such a place that those interested will not be severely burdened by appearing.

What: Another important question is what type of hearing must be conducted to satisfy due process.

When: Another important question is what type of hearing must be conducted to satisfy due process.

3. The court would apply the rational basis test. Unlike race-or gender-based classifications, which require a tighter fit between the discriminatory means and the legitimate ends they serve, the government may discriminate on the basis of age without offending the constitutional guarantee of equal protection if the age classification in

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question is rationally related to a legitimate state interest. See NRA v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012).

4. The three interests protected by the Due Process Clauses are life, liberty, and property.

If life is threatened by agency action, due process must be afforded to the threatened person. Liberty encompasses a multitude of personal freedoms. The right to move about as one pleases, without governmental interference, is an example. A person may have a property interest in tangible or intangible property. Automobiles, houses, money, and jewelry are examples of tangible property. Courts have examined whether entitlements and governmental employment are considered property interests.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

Test Item File Chapter 5 Multiple Choice: 205

1. Agency-created laws are called: a. statutes b. ordinances c. quasi-statutes d. regulations Answer: d Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 115 Level: Basic 2. The separation of powers limitations on Congressional authority to delegate are known as: a. the delegation doctrine b. the nondelegation doctrine c. the delegation doctrine and the nondelegation doctrine d. none of the above Answer: c Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 115 Level: Intermediate 3. As a general rule, there is no separation of powers problem with an agency possessing ________ authority, because nearly all agencies fall under the ________ branch. a. executive; executive b. legislative; legislative c. executive; legislative d. legislative; executive Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 115 Level: Intermediate 4. The doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines is called: a. intelligible principle b. standards principle c. justifiable principle d. permissible principle Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 122 Level: Intermediate 206

5. In which of the following was a Congressional delegation of authority found improper? a. Lichter v. United States b. Arizona v. California c. Panama Refining Co. v. Ryan d. Crowell v. Benson Answer: c Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 118 Level: Intermediate

6. Which of the following is not an argument supporting privatization? a. Government often lacks the expertise to perform certain necessary functions. b. Privatization increases the size of government. c. The government often lacks the proper resources to deal with certain emergencies. d. Private companies are often more productive, reducing government costs.

Answer: b Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Intermediate 7. In Foley v. Osborne Court Condominiums, the court decided that: a. private entities may impose fines as long as the fines do not accrue b. private entities may impose fines even if the fines accrue c. private entities may not impose fines d. private entities may not impose fines unless a hearing is conducted Answer: c Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 135 Level: Difficult 8. Which of the following is likely to be ruled unconstitutional? a. Limited delegations of criminal rulemaking to private agencies b. Limited delegations of criminal rulemaking to public agencies c. Limited delegations of criminal rulemaking to both private agencies and public agencies would likely be unconstitutional. d. None of the above; limited delegations of criminal rulemaking to both private agencies and public agencies would likely be constitutional.

Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

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Level: Difficult 9. Public agencies are never authorized to: a. arrest b. imprison c. detain d. all of the above e. none of the above Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 139 Level: Basic 10. The distinction between public and private rights was established in: a. Lichter v. United States b. Arizona v. California c. Panama Refining Co. v. Ryan d. Crowell v. Benson Answer: d Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 129 Level: Difficult 11. Which of the following is an Article III judge? a. A district judge b. A magistrate c. A bankruptcy judge d. All of the above are Article III judges. e. None of the above is an Article III judge.

Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Basic 12. De novo means: a. the notice of a hearing b. to reconsider an agency’s decision anew c. to overrule an agency decision d. to overrule a Congressional delegation Answer: b Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

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Page number: 133 Level: Basic 13. Which of the following is an invalid exercise of delegated authority? a. A public health official detaining an individual in quarantine when the individual poses a threat to the public b. The detaining of an individual for psychiatric evaluation or treatment when the individual poses a threat to themselves or the public c. The detaining of an illegal alien under warrant issued by the attorney general d. None of the above e. All of the above Answer: d Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 139 Level: Intermediate 14. In South Dakota v. Department of Interior, the delegation of power to the Secretary of the Interior to acquire land in trust for the Lower Brule Tribe of Sioux Indians was declared unconstitutional because: a. the Lower Brule Tribe of Sioux Indians was not recognized as a legitimate tribe eligible for benefits in the authorizing Act b. the enabling statute did not articulate the underlying public use that justified the acquisition and the secretary’s power to purchase land was not properly defined c. Congress may delegate authority to purchase open federal land but not private land such as land within established city limits (the City of Oacoma) d. the statute provided an unfair advantage to Indians, putting other Constitutionally protected groups at a disadvantage e. all of the above Answer: b Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 130 Level: Intermediate 15. If the president establishes a court, it is called an: a. Article I Court b. Article II Court c. Article III Court d. Article IV Court Answer: b Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 132 Level: Basic

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16. Which of the following is considered a public right? a. Bankruptcy proceedings b. Disputes regarding whether a debt exists c. Disputes regarding the amount of a debt d. All of the above e. None of the above Answer: a Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 133 Level: Intermediate 17.The Panama Refining and Schechter Poultry cases are significant because: a. both cases were deemed valid delegations of authority establishing the intelligible principle doctrine b. both cases were deemed valid delegations of authority establishing the de novo standard c. these are the only cases ever found by the Supreme Court to have delegations of authority declared unconstitutional under the nondelegation doctrine d. these are the only cases ever found by the Supreme Court to have delegations of authority declared unconstitutional due to improper delegation to private agencies Answer: c Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 118 Level: Intermediate 18. Peretz v. United States established that: a. the defendant in a criminal action may demand that an Article III judge preside over critical stages of the proceedings b. the defendant in a criminal action may waive the right to have an Article III judge preside over critical stages of the proceedings c. the defendant in a criminal action may demand or may waive the right to have an Article III judge preside over critical stages of the proceedings d. none of the above Answer: c Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 133 Level: Intermediate 19. Which of the following was not considered a governmental function by the Constitutional framers? a. Corrections b. Foreign affairs c. Roads 210

d. Health care Answer: d Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 135 Level: Basic 20. Agency rulemaking is acknowledged and authorized in which article of the U.S. Constitution? a. Article I b. Article II c. Article III d. None of the above Answer: d Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Intermediate True-False 1. Most authority delegated by Congress is quasi-legislative authority. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 115 Level: Basic 2. A delegation of legislative authority is constitutional if Congress establishes the nation’s fundamental legislative policy and leaves only “gap filling” to the agency. a. True b. False Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 122 Level: Basic 3. Congress may delegate the adjudication of public rights to non-Article III courts. a. True b. False Answer: a Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

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Page number: 129 Level: Intermediate 4. Federal magistrates are nominated by the president and approved by the Senate. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Basic 5. Magistrates may not be delegated the authority to make final determinations in pretrial matters without the consent of the parties. a. True b. False Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Intermediate 6. Bankruptcy judges are not Article III judges. a. True b. False Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Basic 7. Exercising contempt power is a delegable government function. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 135 Level: Basic 8. Through the privatization of prisons, as of 2001, approximately 20% of federal and state prisoners were housed in private prisons. a. True b. False Answer: b

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Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Intermediate 9. Delegations of criminal rulemaking to private agencies are generally found to be unconstitutional. a. True b. False Answer: a Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Intermediate 10. Public agencies may order the imprisonment of individuals. a. True b. False Answer: b Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 139 Level: Intermediate 11. If a right did not exist under the common law, Congress may delegate the adjudication of that right to an agency. a. True b. False Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 140 Level: Basic 12. Article III judges enjoy a lifetime appointment to the bench. a. True b. False Answer: a Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Basic 13. In Doe v. Bush, the court stated that the nondelegation doctrine had less applicability in matters of foreign affairs than it does in domestic affairs. a. True 213

b. False Answer: a Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 132 Level: Difficult 14. United States immigration officers may not detain illegal aliens under warrants issued by the Attorney General unless a magistrate has ruled the warrant valid. a. True b. False Answer: b Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 139 Level: Difficult 15. Since 1935, the delegation doctrine has not been used by the Supreme Court to strike down any delegation of legislative power. a. True b. False Answer: a Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 122 Level: Intermediate 16. A delegation of quasi-judicial authority to a private agency is more likely to be permitted by the courts than is a delegation of quasi-legislative authority. a. True b. False Answer: b Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Intermediate 17. Constitutional rights designed to protect the rights of criminal defendants may be recharacterized as civil wrongs, allowing agencies to exercise a quasi-adjudicative role in the administration of justice. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

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Page number: 139 Level: Intermediate 18. Private agencies that perform governmental functions will be treated like governmental agencies by the courts. a. True b. False Answer: a Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Intermediate 19. Article III judges are nominated by the Senate and approved by the president. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Basic 20. It is constitutionally permissible, if the sole purpose is a delegation of legislative authority, to transfer the authority to hear a common law claim to a non-Article III court. a. True b. False Answer: b Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 132 Level: Intermediate 21. In Panama Refining Co. v. Ryan, the U.S. Supreme Court upheld the validity of the National Industrial Recovery Act of 1933 (NIRA) created during the Great Depression. a. True b. False Answer: b Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 118 Level: Difficult Fill-in-the-blank:

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1. In Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan, the U.S. Supreme Court invalidated two delegations created by Congress during the Great ____ to confront the serious economic crisis quickly.

Answer: Depression Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 118 Level: Basic 2. In the U.S. Supreme Court case _____ decided in 1825, the U.S. Supreme Court upheld a congressional delegation to the courts to make certain rules of operation.

Answer: Wayman v. Southard Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 118 Level: Difficult 3. In the U.S. Supreme Court case _____ decided in 1963, the U.S. Supreme Court upheld delegation of power to the U.S. Secretary of the Interior over water from the Colorado River.

Answer: Arizona v. California Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 122 Level: Difficult 4. In the case _____, the First Circuit Court of Appeals rejected a challenge to President George W. Bush’s decision to wage war on Iraq.

Answer: Doe v. Bush Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 129 Level: Difficult 5. The nondelegation doctrine has less applicability in matters of ____ affairs than it does in domestic affairs.

Answer: foreign Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 129 Level: Intermediate

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6. Delegation of quasi-legislative authority to a private agency is more likely to be permitted than is a delegation of _____ authority.

Answer: quasi-judicial Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 137 Level: Intermediate 7. Private agencies that perform governmental _____ may be treated as government agencies by the courts.

Answer: functions Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 137 Level: Intermediate 8. Trying ____ cases is a core governmental function that cannot be delegated to private parties.

Answer: criminal Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 135 Level: Difficult 9. The _____ principle is the doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines to limit the authority of the agency when exercising delegated rulemaking authority.

Answer: intelligible Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 122 Level: Intermediate 10. Congress must provide sufficient ____ to an agency to guide it in the administration of the power it has been delegated.

Answer: standards Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 122 Level: Intermediate 11. A delegation of legislative authority is constitutional if Congress establishes the nation’s fundamental legislative policy and leaves only the _____ filling to an agency.

Answer: gap Objective: Define delegation and explain how and why delegations occur in the administrative context.

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Page number: 122 Level: Intermediate Matching: Match the case name in Column 1 to the holding of the court in Column 2.

Column 1 1. Arizona v. California

2. Mistretta v. United States

Column 2 a. Upheld a delegation to the U.S. Sentencing Commission where Congress established the commission to research sentencing b. Upheld a delegation to administrative officers to recover “excessive profits” when renegotiating contracts involving war goods

3. Lichter v. United States

c. Upheld delegation of power to the U.S. Secretary of the Interior over water from the Colorado River

4. Touby v. United States

d. Upheld a congressional delegation of rulemaking authority to the EPA e. Upheld a statute authorizing the U.S. Attorney General to temporarily declare a drug under the Controlled Substances Act f. Held that delegating authority to the U.S. comptroller general violated the separation-of-powers doctrine g. Held that the nondelegation doctrine has less applicability in matters of foreign affairs than it does in domestic affairs

5. Whitman v. American Trucking Associations

6. Bowsher v. Synar

7. Doe v. Bush

1. *c 2. *a 3. *b 4. *e 5. *d 6.*f 218

7.*g Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 122-129 Level: Difficult Match the case name in Column 1 to the holding of the court in Column 2.

Column 1 8. Schechter Poultry Corp. v.

United States

9. United States v. Grimaud

10. Panama Refining Co. v. Ryan

11. Wayman v. Southard

Column 2 a. Held that delegation is the “power to determine some fact or state of things upon which the law makes or intends to make its own action depend” b. Invalidated delegation given to the U.S. President to approve codes of fair competition for the poultry industry c. Invalidated the National Industrial Recovery Act of 1933 (NIRA) d. Upheld a congressional delegation to the courts to make certain rules of operation

8. *b 9. *a 10. *c 11.*d Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 115-121 Level: Difficult Essay: 1. Explain three ways how a delegation by Congress may violate the U.S. Constitution.

Answer: First, Congress may delegate too much of its own authority to an agency. Second, Congress cannot delegate to an agency its own essential functions or the essential functions of the judicial branch. Third, Congress may not make a delegation that gives one branch oversight or control over an agency that is performing the functions of another branch.

Objective: Define delegation and explain how and why delegations occur in the administrative context.

Page number: 115 Level: Difficult 219

2. Explain why the nondelegation doctrine has less applicability in matters of foreign affairs than it does in domestic affairs. Cite at least one case to support your answer.

Answer: The delegation doctrine has limited applicability in those zones of authority shared by the president and Congress, most notably, foreign affairs and war. When Congress and the President share the responsibility, courts are less likely to interfere. In Doe v. Bush, the U.S. Court of Appeals for the First Circuit rejected a claim involving President George W. Bush's decision to wage war on Iraq.

Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 128-129 Level: Difficult 3. Explain why the U.S. Supreme Court invalidated delegations created by Congress during the Great Depression to confront the serious economic crisis. Cite at least one case to support your answer.

Answer: Because of the need to confront the serious economic crisis quickly, much of the enabling legislation was hurriedly drafted, poorly written, and involved delegations on a scale the nation had not experienced before. In Schechter Poultry Corp. v. United States, the U.S. Supreme Court found that the policy statement issued by Congress had conflicting goals. The court invalidated delegation given to the U.S. President to approve codes of fair competition for the poultry industry.

Objective: Explain the history, citing cases for each point you make, of delegations of legislative authority.

Page number: 117-118 Level: Difficult 4. Explain why delegation to a private party must serve the public interest.

Answer: The private agency receiving the delegation must be in a position to serve the public interest. Delegations to parties that have only a financial interest are suspect. One objective of government is to have a public body that is concerned with the public good, regardless of profit.

Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 138 Level: Difficult Critical Thinking: 1. 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?

Answer: Arguments in favor of privatization of governmental services include: * The government often lacks the expertise necessary to perform a necessary function. * Private companies have often proven to be more productive, reducing government costs.

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* Privatization reduces the size of government. * The government often lacks the resources to deal with a changing or newly emerging need.

Arguments in opposition to privatization of governmental services include: * Privatization threatens the public good because the government loses some elements of control. * The framers intended for government to provide for the public, trading efficiency for liberty.

Student answers will vary regarding their position on privatization. However, students should recognize that the government is growing and encompasses a multitude of functions not foreseen by the framers.

Objective: Explain why delegations of authority to private parties present different legal questions than delegations to governmental actors.

Page number: 138 Level: Difficult 2. Within two years of President Franklin D. Roosevelt’s inauguration, the U.S. Supreme Court had invalidated several pieces of New Deal legislation. In response, President Roosevelt proposed to Congress that it enlarge the Supreme Court by permitting a new appointment for every justice over the age of 70. What if the current U.S. President proposed to Congress that it enlarge the Supreme Court by permitting a new appointment for every justice over the age 70 today? Would the court uphold the validity of expanding the number of justices on the U.S. Supreme Court? Explain your position.

Answer: Student answers will vary.

Objective: Explain the state of the delegation doctrine today, as well the legal standard(s) that are applied to delegations of legislative and judicial authorities, citing cases to support your points.

Page number: 122 Level: Difficult MC: 1. d 2. c 3. a 4. a 5. c 6. b 7. c 8. a 9. b 10. d 11. a 12. b 13. d 14. b 15. b 221

16. a 17. c 18. c 19. d 20. d T/F: 1. b 2. a 3. a 4. b 5. a 6. a 7. b 8. b 9. a 10. b 11. a 12. a 13. a 14. b 15. a 16. b 17. b 18. a 19. b 20. b 21. b Fill in the Blank: 1. Depression 2. Wayman v. Southard 3. Arizona v. California 4. Doe v. Bush 5. foreign 6. quasi-judicial 7. functions 8. criminal 9. intelligible 10. standards 11. gap Matching: 1. c 2. a 3. b 4. e 5. d 6. f 222

7. g 8. b 9. a 10. c 11. d Essay: 1. First, Congress may delegate too much of its own authority to an agency. Second, Congress cannot delegate to an agency its own essential functions or the essential functions of the judicial branch. Third, Congress may not make a delegation that gives one branch oversight or control over an agency that is performing the functions of another branch.

2. The delegation doctrine has limited applicability in those zones of authority shared by the president and Congress, most notably, foreign affairs and war. When Congress and the President share the responsibility, courts are less likely to interfere. In Doe v. Bush, the U.S. Court of Appeals for the First Circuit rejected a claim involving President George W. Bush's decision to wage war on Iraq.

3. Because of the need to confront the serious economic crisis quickly, much of the enabling legislation was hurriedly drafted, poorly written, and involved delegations on a scale the nation had not experienced before. In Schechter Poultry Corp. v. United States, the U.S. Supreme Court found that the policy statement issued by Congress had conflicting goals. The court invalidated delegation given to the U.S. President to approve codes of fair competition for the poultry industry.

4. The private agency receiving the delegation must be in a position to serve the public interest. Delegations to parties that have only a financial interest are suspect. One objective of government is to have a public body that is concerned with the public good, regardless of profit.

Critical Thinking: 1. Arguments in favor of privatization of governmental services include: * The government often lacks the expertise necessary to perform a necessary function. * Private companies have often proven to be more productive, reducing government costs. * Privatization reduces the size of government. * The government often lacks the resources to deal with a changing or newly emerging need.

Arguments in opposition to privatization of governmental services include: * Privatization threatens the public good because the government loses some elements of control. * The framers intended for government to provide for the public, trading efficiency for liberty.

Student answers will vary regarding their position on privatization. However, students should recognize that the government is growing and encompasses a multitude of functions not foreseen by the framers.

2. Student answers will vary.

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Test Item File Chapter 6 Multiple Choice: 1. The final and authoritative compilation of federal administrative regulations is called: a. the Federal Register b. the Code of Federal Regulations c. the United States Code d. the National Register Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 149 Level: Basic 2. Which of the following must stem from an enabling statute? a. Substantive rules promulgated by an agency b. Procedural rules promulgated by an agency c. Substantive and procedural rules promulgated by an agency d. None of the above Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 150 Level: Difficult 3. Agency rules that apply to a suspect class or that impinge on a fundamental right must be validated under the: a. rational relationship test b. substantial relationship test c. coherent analysis test d. strict scrutiny test Answer: d Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 4. Rulemaking: a. concerns past conduct b. concerns future conduct c. can concern either past or future conduct d. concerns only a single present specific conduct at a fixed point in time and neither looks to the past or future Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 152 Level: Intermediate 224

5. An agency does not have the inherent authority to promulgate: a. procedural rules b. substantive rules c. interpretive rules d. None of the above. Agencies may never promulgate rules unless expressly authorized in the enabling statute.

Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 152 Level: Basic 6. Which of the following is not an APA-recognized procedural form of rulemaking? a. Formal rulemaking b. Informal rulemaking c. Exempted rulemaking d. Hybrid rulemaking Answer: d Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 159 Level: Intermediate 7. Ex parte communications are expressly prohibited with regard to ________ hearings. a. formal rulemaking b. informal rulemaking c. exempted rulemaking d. negotiated rulemaking Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 157 Level: Intermediate 8. In which of the following are the rules of evidence relaxed? a. Formal rulemaking hearings b. Hybrid rulemaking hearings c. Negotiated rulemaking proceedings d. All of the above e. None of the above. Rules of evidence may not be relaxed without violating due process requirements.

Answer: d Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 159 Level: Intermediate 9. Published agency rulings become final and binding if not appealed within: 225

a. 10 days of publication b. 15 days of publication c. 30 days of publication d. 45 days of publication Answer: c Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 172 Level: Basic 10. Agencies employing informal rulemaking rely primarily on: a. oral testimony by interested parties b. written testimony by interested parties c. research conducted by the agency itself with no other input d. research conducted by the Congress with no other input Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 156 Level: Intermediate 11. Notice of proposed rulemaking must be published in the Federal Register regarding: a. formal rulemaking proceedings b. informal rulemaking proceedings c. both formal and informal rulemaking proceedings d. Neither of the above. Publication is by publication in the Congressional Record.

Answer: c Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 158 Level: Intermediate 12. All procedural rulemaking rules may be exempted in each of the following situations except: a. government personnel issues b. foreign affairs issues c. military issues d. agency management issues Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 164 Level: Difficult 13. Rulemaking that involves adding additional requirements to established or customary rulemaking procedures is called: a. formal rulemaking b. informal rulemaking 226

c. exempted rulemaking d. hybrid rulemaking Answer: d Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 159 Level: Intermediate 14. Hybrid rulemaking requirements may be imposed by: a. the Congress only b. the President only c. either the Congress and/or the President d. None of the above. Only the judiciary exercising judicial review may mandate hybrid rulemaking requirements.

Answer: c Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 159 Level: Difficult 15. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, the court determined that: a. courts may require agencies to expand APA notice-comment procedures to permit oral comment b. courts may require agencies to expand APA notice-comment procedures to require trial-type hearings c. courts may require agencies to expand APA notice-comment procedures to permit oral comment and to require trial-type hearings d. courts may not impose variations on the APA notice-comment requirements Answer: d Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 161 Level: Difficult 16. Revenue-raising rulemaking power delegated to an agency requires: a. that an intelligible principle be stated by Congress b. adherence to due process requirements c. that an intelligible principle be stated by Congress and adherence to due process requirements d. None of the above. Revenue-raising rulemaking is an inherent function of administrative agencies and is governed solely by internal agency procedure.

Answer: c Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 167 Level: Difficult 17. In his book Rulemaking: How Government Agencies Write Law and Make Policies, 227

Cornelius Kerwin commented that President ________ was the first of many Presidents to take managing agencies seriously. a. Nixon b. Carter c. Clinton d. Obama Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 172 Level: Intermediate 18. Agency rules related to gender-based classifications are subject to validation under the: a. rational relationship test b. substantial relationship test c. coherent analysis test d. strict scrutiny test Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 19. If a statute is unclear or requires only a hearing, courts are likely to hold that: a. formal rulemaking be used b. informal rulemaking be used c. negotiated rulemaking be used d. hybrid rulemaking be used Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 157 Level: Basic 20. The APA does not require that the following factor be considered when determining the appropriateness of negotiated rulemaking in a given situation: a. the need for a rule b. whether it’s likely that a committee will reach a decision c. the experience and qualifications of committee members d. the likelihood that the agency will use the negotiated rule Answer: c Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 149 Level: Intermediate

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True-False 1. Quasi-legislative authority is adjudicative in nature. a. True b. False Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 144 Level: Basic 2. Regulations are subordinate to statutes but have equal weight when applied. a. True b. False Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 150 Level: Basic 3. Generally, agencies are free to make rules without conducting hearings. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 151 Level: Basic 4. Agency adjudication requires adherence to due process requirements. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 161 Level: Intermediate 5. Generally, rules and rulemaking involve individual claims. a. True b. False Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 6. Generally, adjudications are directed at large groups.

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a. True b. False Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 7. In the United States today, legislative bodies are the source of most law. a. True b. False Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 152 Level: Intermediate 8. If the court disagrees with a substantive agency rule, the court may substitute its own judgment to remedy the situation. a. True b. False Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 161 Level: Difficult 9. Ratemaking in an industry with one entity requires adherence to due process requirements. a. True b. False Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 167 Level: Intermediate 10. Formal rulemaking procedures require a public hearing conducted before a jury. a. True b. False Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 155 Level: Intermediate 11. Negotiated rulemaking is a presidentially created hybrid. a. True b. False 230

Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 165 Level: Difficult 12. Taxation by Congress creates no due process concerns. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 167 Level: Basic 13. Interpretive rules have the force of a statute. a. True b. False Answer: b Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 154 Level: Intermediate 14. The FDA does not have the authority to regulate tobacco and tobacco products. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 168 Level: Intermediate 15. Formal rulemaking is required only when a statute clearly commands that a rule be made on the record after an opportunity for an agency hearing. a. True b. False Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 155 Level: Intermediate 16. Negotiated rulemaking is not subject to public hearing requirements. a. True b. False Answer: b

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Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 165 Level: Basic 17. Adjudication investigates, declares, and enforces liabilities under laws supposed already to exist. a. True b. False Answer: a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 18. Interpretive rules may not be used to fill in the gaps of legislation. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 154 Level: Difficult 19. Negotiated rulemaking has been criticized as too costly and too time consuming. a. True b. False Answer: b Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 165 Level: Intermediate 20. Courts are not bound by agency interpretation of statutes. a. True b. False Answer: a Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 154 Level: Intermediate Fill-in-the-blank: 1. The process whereby agencies establish law to implement or perform a statutory duty is known as _____.

Answer: rulemaking Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

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Page number: 144 Level: Intermediate 2. When an agency acts in its quasi-judicial capacity, its behavior is referred to as _____.

Answer: adjudicatory Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 144 Level: Intermediate 3. When acting in its quasi-legislative capacity, its behavior is referred to as _____.

Answer: rulemaking Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 144 Level: Intermediate 4. Justice Holmes defined _____ as a process that investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.

Answer: adjudication Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Intermediate 5. The Federal Register Act was amended in 1937 to include the _____, a compilation of federal administrative regulations.

Answer: Code of Federal Regulations (CFR) Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 149 Level: Basic 6. With rulemaking, the agency must publish a notice of proposed rulemaking, normally in the Federal ____.

Answer: Register Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 158 Level: Basic 7. “Notice and comment” rulemaking is known as _____ rulemaking.

Answer: informal Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 158 Level: Intermediate

233

8. Agencies may be delegated the responsibility of establishing rates for an industry through _____.

Answer: ratemaking Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 167 Level: Difficult 9. _____ rulemaking is a congressionally created hybrid rulemaking where, on an announced date, the interested parties, the agency, and a mediator meet to discuss and develop a proposed rule.

Answer: Negotiated Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 165 Level: Difficult 10. _____ rulemaking is required only when a statute clearly commands that a rule be made on the record after an opportunity for an agency hearing.

Answer: Formal Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 160 Level: Difficult Matching: Match the case name in Column 1 to the holding of the court in Column 2.

Column 1 1. United States v. Florida East Coast Railroad

2. NLRB v. Wyman-Gordon Co.

3. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council

Column 2 a. Held “[t]he rulemaking provisions of [the APA] were designed to assure fairness and mature consideration of rules of general application” b. Held that Congress’s mandate to the Interstate Commerce Commission to have a hearing before setting certain charges was determined not to be a requirement to use formal rulemaking c. Held that the Food and Drug Administration does not have the authority to regulate tobacco products as "drugs" and "devices" 234

4. FDA v. Brown & Williamson

under the Food, Drug, and Cosmetic Act d. Prohibits courts from fashioning variations on the APA’s notice and comment requirements

1. *b 2. *a 3. *d 4.*c Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: passim Level: Difficult Match the agency action in Column 1 to the description in Column 2.

Column 1 5. Decisions based on facts and policy

Column 2 a. rulemaking

6. Goal is the resolution of disputes 7. Concerns past conduct 8. Concerns future conduct 9. Sets standards by which a person may be adjudged and sanctioned 10. Determines compliance or guilt and sanctions violaters 11. Is directed at specific individuals (or businesses) or disputes 12. Is directed at large groups or policy issues

b. adjudication

5. *a 6. *b 7. *b 8.*a 9.*a 10.*b 11.*b 12.*a Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 152 235

Level: Intermediate Essay: 1. Explain the differences between formal and informal rulemaking.

Answer: The primary difference between formal and informal rulemaking is that formal rulemaking consists of an evidentiary trial-type hearing. Informal rulemaking requires that interested parties have the right to participate, but the agency has the power to limit participation to written comments and opinions. While oral testimony may be permitted, it can be limited. Both forms of rulemaking require that proper notice be given and that the authority of the agency be specified.

Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 160 Level: Difficult 2. When is formal rulemaking required? Explain whether formal or informal rulemaking is used more frequently.

Answer: Formal rulemaking is required only when a statute specifically mandates that “rules be made on the record after an opportunity for an agency hearing.” Because of the time and additional cost involved, informal rulemaking is more prevalent than formal rulemaking. The APA also dictates that informal rulemaking may be used by default when no exemption exists or when formal rulemaking is not required.

Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 160 Level: Difficult 3. Explain the difference between rulemaking and adjudication.

Answer: Rulemaking is directed at large groups or policy issues and concerns future conduct. Adjudication is directed at specific individuals (or businesses) or disputes and concerns past conduct. The goal of rulemaking is establishing a rule to deal with future conduct, whereas the goal of adjudication is the resolution of disputes. Rulemaking involves decisions based on facts and policy, while adjudication is based on adjudicative facts particular to disputes.

Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 152 Level: Difficult Critical Thinking: 1. Each state has its own rulemaking requirements, and state rulemaking requirements often differ significantly from the federal formal versus informal model. Discuss whether you think your state should follow the federal pattern for rulemaking.

Answers: Student answers will vary.

Objective: Identify the various forms of rulemaking, explain the circumstances in which each is used, and describe the process used to create each type of rule under the APA. Page number: 155 236

Level: Difficult 2. Generally, agencies are free to make rules without conducting hearings, whereas hearing as usually required with adjudications. Discuss why hearings are not required with informal rulemaking. Do you think that agencies should be required to conduct hearings for all rulemaking? Explain your position.

Answers: Student answers will vary.

Objective: Distinguish rulemaking from adjudication-in-fact scenarios.

Page number: 151 Level: Difficult MC: 1. b 2. a 3. d 4. b 5. b 6. d 7. a 8. d 9. c 10. b 11. c 12. a 13. d 14. c 15. d 16. c 17. a 18. b 19. b 20. c T/F: 1. b 2. a 3. a 4. a 5. b 6. b 7. b 8. b 9. a 10. b 11. b 12. a 13. b 237

14. a 15. a 16. b 17. a 18. a 19. b 20. a Fill in the Blank: 1. rulemaking 2. adjudicatory 3. rulemaking 4. adjudication 5. Code of Federal Regulations (CFR) 6. Register 7. informal 8. ratemaking 9. Negotiated 10. Formal Matching: 1. b 2. a 3. d 4. c 5. a 6. b 7. b 8. a 9. a 10. b 11. b 12. a Essay: 1. The primary difference between formal and informal rulemaking is that formal rulemaking consists of an evidentiary trial-type hearing. Informal rulemaking requires that interested parties have the right to participate, but the agency has the power to limit participation to written comments and opinions. While oral testimony may be permitted, it can be limited. Both forms of rulemaking require that proper notice be given and that the authority of the agency be specified.

2. Formal rulemaking is required only when a statute specifically mandates that “rules be made on the record after an opportunity for an agency hearing.” Because of the time and additional cost involved, informal rulemaking is more prevalent than formal rulemaking.

The APA also dictates that informal rulemaking may be used by default when no exemption exists or when formal rulemaking is not required.

3. Rulemaking is directed at large groups or policy issues and concerns future conduct.

Adjudication is directed at specific individuals (or businesses) or disputes and concerns 238

past conduct. The goal of rulemaking is establishing a rule to deal with future conduct, whereas the goal of adjudication is the resolution of disputes. Rulemaking involves decisions based on facts and policy, while adjudication is based on adjudicative facts particular to disputes.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

Test Item File Chapter 7

239

Multiple Choice: 1. In general, an agency may require the disclosure of information, or that records be kept, if the following criteria are met except: a. the agency has jurisdiction over the subject matter and individual concerned b. the requirement is reasonable and not overly burdensome c. the organization or individual possesses trade secrets or patent information d. the information is not privileged Answer: c Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 176 Level: Difficult 2. The Fifth Amendment privilege against self-incrimination applies to: a. criminal proceedings b. civil proceedings c. administrative proceedings d. all of the above Answer: d Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 178 Level: Intermediate 3. The APA specifies that no hearing is necessary when adjudicative decisions are based solely on any of the following except: a. tests b. elections c. inspections d. records Answer: d Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 176 Level: Difficult 4. Courts generally recognize that administrative inspections differ from searches in criminal cases for each of the following reasons except: a. agencies, being executive in nature, are afforded privileges that allow them to circumvent many rules in order to conduct their business efficiently b. administrative searches usually do not have the purpose of securing evidence of criminal activities 240

c. agencies in today’s complex society must be given broad authority to enforce their mandates d. there is a lower expectation of privacy in business premises Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 181 Level: Difficult 5. Warrants are court orders dealing with: a. searches b. arrests c. seizures d. any of the above Answer: d Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 182 Level: Intermediate 6. In Chandler v. Miller, the Georgia legislature enacted a statute requiring candidates for public office to submit to drug tests. The court determined: a. the public’s interest in having drug-free political representatives outweighs the candidate’s privacy rights, so the law was constitutional b. the interest in having drug-free political officials did not constitute a special need, so the law was unconstitutional c. although the state’s interest did not constitute a special need, the symbolic need was sufficient to validate the constitutionality of the statute d. although political officials do not operate nuclear power plants, handle or sell firearms, or operate equipment that directly affects the public, they regulate these and other public safety-intensive industries, so they must be held to the same standards as the regulated industry employees, making the statute constitutional Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 196 Level: Difficult 241

7. Jon is an inspector for OSHA. He is in a car dealership that consists of a showroom, open cubicle-style offices, and a service area. The service area does not allow customers to enter but does feature a glass wall that allows customers to observe their cars being serviced. Jon observes spilled oil without clean-up provisions, a lack of adequate air cleaners and exhaust fans, and other safety violations. a. Jon must provide notice of his visit before he may legally visit. b. Jon may observe and report administrative violations occurring in the service area because the dealership has evidenced no expectation of privacy in that area. c. Because customers are prohibited from entering the service area, the dealership has established an expectation of privacy and Jon must have a warrant to report the violations. d. Jon must limit his inspections to the offices and showroom because they are the only “public” areas.

Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 176 Level: Difficult 8. Statutes that provide for _____________ only are unconstitutional. a. transactional immunity b. derivative use immunity c. use immunity d. sovereign immunity Answer: c Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 179 Level: Intermediate 9. The Fifth Amendment privilege against self-incrimination applies to: a. corporations only b. any business entity c. natural persons d. any business entity and natural persons Answer: c Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 176 242

Level: Difficult 10. In Skinner v. Railway Labor Executive Ass’n, the court determined that: a. drug and alcohol testing was not subject to Fourth Amendment requirements because the governmental interest in protecting the public outweighs the privacy interests of the tested employees b. any time that a test is invasive of a person’s privacy, the Fourth Amendment requirements must be adhered to c. if testing is being conducted by a private party, the government is said not to be involved and Fourth Amendment procedures are not required d. the Fourth Amendment imposes probable cause requirements on searches whether they are administrative or criminal in nature Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 185 Level: Difficult 11. For a warrantless inspection to be valid, each of the following elements must be shown except: a. the government must have a substantial interest in the inspection b. the government must show probable cause of illegal or improper activity, thereby legitimizing the inspection c. the warrantless inspection must further the government’s substantial interest d. the statutory scheme that substitutes for the warrantless procedure must be reasonable Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 199 Level: Intermediate 12. Which of the following is the best definition of subpoena? a. an order to either cease or to continue an action b. an order permitting a warrantless search of a premises c. an order accompanying a warrant, permitting a search of a premises d. an order requiring a witness to produce certain documents and/or to appear to testify Answer: d Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

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Page number: 202 Level: Intermediate 13. _____________ shields a witness from prosecution of all offenses related to his or her testimony even if the government possesses independent evidence of the witness’s guilt. a. Transactional immunity b. Derivative use immunity c. Use immunity d. Sovereign immunity Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 179 Level: Intermediate 14. If an agency has a subpoena issued and the business refuses to comply: a. the agency may unilaterally impose civil fines b. the agency may unilaterally impose criminal penalties c. the agency may unilaterally have the business closed until compliance is made d. all of the above e. the agency has no actual enforcement power and must seek judicial enforcement assistance Answer: e Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 202 Level: Difficult 15. Exceptions for agency-related area searches, based on warrants issued without a showing of probable cause: a. apply only to individuals b. apply only to businesses c. apply to both individuals and businesses d. are unconstitutional; warrants must always be supported by probable cause Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 204 244

Level: Difficult 16. _____________ shields a witness from prosecution of all offenses related to his or her testimony but does not protect the witness if the government possesses independent evidence of the witness’s guilt. a. Transactional immunity b. Derivative use immunity c. Use immunity d. Sovereign immunity Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 179 Level: Intermediate 17. Regarding the issuance of subpoenas in federal court: a. the requesting party need not show materiality or relevance b. the requesting party must show reasonable cause c. the requesting party must show probable cause d. the requesting party must show a compelling governmental interest Answer: b Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 204 Level: Intermediate 18. Administrative search warrants are also called: a. assessment warrants b. review warrants c. evaluation warrants d. inspection warrants Answer: d Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 182 Level: Difficult 19. In administrative law, a subpoena is also called a(n): a. writ 245

b. order c. summons d. directive Answer: c Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 202 Level: Intermediate 20. Conducting a blood, urine, or breath test is considered a search under which amendment to the U.S. Constitution? a. First b. Second c. Fourth d. Fifth Answer: c Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 198 Level: Basic True-False 1. Agencies can acquire information by requiring individuals and businesses to produce and maintain records. a. True b. False Answer: a Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 175 Level: Intermediate 2. Requiring that records be held by an individual or business subject to review by the agency is called reporting. a. True b. False Answer: b Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 175 Level: Intermediate 3. Faye has sold illegal drugs. The IRS requires that all income be reported whether 246

obtained legally or illegally. Assume that Faye reports her illegally gained income on her tax return. The Department of Justice may use that return as evidence and prosecute Faye for selling illegal drugs. a. True b. False Answer: b Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 178 Level: Difficult 4. Faye has sold illegal drugs. On her personal home computer, she has kept records of the sales along with a detailed accounting of her profits. When she doesn’t complete her income taxes on time, her home is raided and the computer is seized pursuant to a valid search warrant. The information on her computer is privileged under the Fifth Amendment and may not be used against her. a. True b. False Answer: b Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 178 Level: Difficult 5. The current legal environment considers most administrative inspections as searches subject to Fourth Amendment requirements. a. True b. False Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 182 Level: Intermediate 6. Federal courts have unanimously agreed that privacy interests of employees in closely regulated businesses and those in businesses not closely regulated must be treated similarly and it is unconstitutional to impose different privacy standards. a. True b. False Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth 247

Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 186 Level: Intermediate 7. A restaurant is an example of a closely regulated business. a. True b. False Answer: a Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 193 Level: Basic 8. The APA specifies particular requirements regarding recordkeeping and reporting for the purpose of establishing uniformity and consistency, easing the agency review process. a. True b. False Answer: b Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 176 Level: Intermediate 9. Suspicionless drug testing of student athletes is considered by the courts to be consistent with the Fourth Amendment. a. True b. False Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 194 Level: Intermediate 10. Because the Fourth Amendment rights against unreasonable search and seizure are fundamental constitutional rights, warrants are always required in every search and an individual may not consent to a warrantless search. a. True b. False Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth 248

Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 198 Level: Intermediate 11. As a general rule, businesses cannot be required to divulge trade secrets to agencies through regular reporting. a. True b. False Answer: a Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 177 Level: Intermediate 12. The APA confers upon agencies the right to issue subpoenas. a. True b. False Answer: b Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 202 Level: Intermediate 13. Agency requests regarding recordkeeping and reporting are not subject to federal or state privileges against self-incrimination. a. True b. False Answer: b Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 178 Level: Intermediate 14. The Office of Management and Budget looks at 10 separate elements before it may establish a new reporting requirement. a. True b. False Answer: a Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 205 Level: Intermediate 249

15. Common law and statutory privileges such as attorney-client, husband-wife, and doctor-client are not applicable or effectual regarding administrative agency search and reporting powers. a. True b. False Answer: b Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 204 Level: Intermediate 16. The APA does not specifically authorize inspections by agencies. a. True b. False Answer: a Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 181 Level: Intermediate 17. Generally, parallel administrative and criminal proceedings are constitutionally sound. a. True b. False Answer: a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 205 Level: Basic 18. The Paperwork Reduction Act has generally been regarded as a failure, having done little to actually reduce the paperwork burden or reduce hours committed to satisfying information demands. a. True b. False Answer: b Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 205 Level: Intermediate 250

19. Closely regulated businesses may be inspected without first obtaining a search warrant. a. True b. False Answer: a Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 206 Level: Basic 20. The reduction of fraud and waste are not stated goals of the Paperwork Reduction Act. a. True b. False Answer: b Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 205 Level: Intermediate 21. The standard for obtaining a search warrant is same for both administrative cases and criminal cases. a. True b. False Answer: b Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 182 Level: Intermediate Fill-in-the-blank: 1. Generally, blood, drug, or urine testing to uncover criminal activity requires _____.

Answer: probable cause Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 198 Level: Intermediate 2. Closely regulated businesses may be inspected without a warrant being obtained 251

first because owners and operators of closely regulated businesses have a reduced expectation of _____.

Answer: privacy Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 199 Level: Intermediate 3. A directive to a person or organization to appear to testify with specified documents is called a subpoena _____.

Answer: duces tecum Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 202 Level: Difficult 4. An industry that is subject to significant licensing, reporting, disclosure requirements, inspections, required operating procedures, and other regulations is a ____ regulated business.

Answer: closely Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 193 Level: Intermediate 5. The Fourth Amendment requires that a ____ authorizing a search be obtained before the search is conducted.

Answer: warrant Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 182 Level: Intermediate 6. The Fifth Amendment privilege against ____ applies to natural persons, but business entities, such as corporations, may not claim the privilege.

Answer: self-incrimination Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 179 Level: Difficult

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7. In the U.S. Supreme Court case _____, the court held that blood and urine testing is invasive of a person’s privacy but that the regulation was valid because the governmental interest in protecting the employees and the public from a disaster outweighed the privacy interests of the employees.

Answer: Skinner v. Railway Labor Executive Ass’n Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 186 Level: Difficult 8. In the U.S. Supreme Court case _____, the court held that suspicionless drug testing of student athletes was consistent with the Fourth Amendment.

Answer: Vernonia School District v. Acton Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 194 Level: Difficult 9. ____ is when a record producer is required to provide records to the agency.

Answer: Reporting Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 176 Level: Difficult 10. _____ is when agencies require that records be held subject to review by the agency.

Answer: Recordkeeping Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 176 Level: Difficult Matching: Match the case name in Column 1 to the holding of the court in Column 2.

Column 1

Column 2

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1. Vernonia School District v.

Acton

a. Held that blood and urine testing of specified employees is invasive of a person’s privacy but that the regulation was valid because the governmental interest in protecting the employees and the public from a disaster outweighed the privacy interests of the employees

2. Skinner v. Railway Labor Executive Ass’n

b. Held that suspicionless drug testing of student athletes was consistent with the Fourth Amendment

3. Chandler v. Miller

c. Upheld the authority of the Federal Trade Commission to require a regulated company to submit reports d. Held that the standard for obtaining a search warrant is lower in administrative cases than in criminal cases

4. Camera v. Municipal Court

5. United States v. Morton Salt Co.

e. Held that a Georgia statute requiring candidates for political office to submit to drug tests did not rise to the level of a special need

1. *b 2. *a 3. *e 4.*d 5.*c Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: passim Level: Difficult Match the type of immunity in Column 1 with the description in Column 2.

Column 1

Column 2 254

6. Use immunity

7. Transactional immunity

8. Derivative use immunity

a. Prohibits the government from using the witness’s testimony or any evidence derived from that testimony to prosecute the witness b. Full immunity from prosecution for all crimes evinced by the information compelled by the government c. Prohibits only the government from using witnesses’ testimony against them

6. *c 7. *b 8. *a Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 179 Level: Intermediate Match the key term in Column 1 with its description in Column 2.

Column 1 9. Warrant

Column 2 a. A court order directing that a search, seizure, or arrest occur

10. Reporting

b. When a record producer is required to provide records to the agency c. Directives to a person or organization to appear to testify or to appear with specified documents d. When agencies require that records be held subject to review by the agency

11. Recordkeeping

12. Subpoena

9. *a 10. *b 11. *d 12.*c Objective: Identify at least three methods discussed in the chapter that agencies use to 255

collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: passim Level: Difficult Essay: 1. What are the APA’s requirements regarding recordkeeping and reporting?

Answer: The APA does not require particular recordkeeping or reporting based on the concept that the APA is intended to be procedural rather than substantive. The APA does, however, provide that particular reporting may be compulsory pursuant to requirements stated in other statutes.

Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 176 Level: Difficult 2. Explain why the Fourth Amendment is applied differently in administrative context than in the criminal justice context.

Answer: Courts have recognized that administrative inspections differ from searches in criminal cases in several respects. First, administrative searches usually do not have as their purpose the securing of evidence to support a criminal prosecution. Second, it is generally recognized that in today’s complex, urbanized society, agencies must be given broad authority to enforce their mandates. Third, there is a lower expectation of privacy in business premises, which are normally public operations, than in the home or in one’s person.

Objective: Explain how the Fourth Amendment to the U.S. Constitution limits the authority of agencies to conduct tests and inspections, citing at least two of the major cases discussed in the chapter. You should also be able to explain why the Fourth Amendment is applied differently in the administrative context than in the criminal justice context.

Page number: 181 Level: Difficult 3. Discuss whether mandatory AIDS testing of prison inmates without having probable cause or a warrant violates the Fourth Amendment.

Answer: In Dunn v. White, the issue of mandatory AIDS testing was raised by a prison inmate. The inmate, who was being disciplined for refusing to submit to AIDS testing, claimed that the government was violating his Fourth Amendment rights by compelling him to submit to an AIDS test without having probable cause or a warrant. The Tenth Circuit Court of Appeals found that such a test is a search under the Fourth Amendment. However, because prison officials have the responsibility of making placement, segregation, and treatment decisions concerning inmates, and because they must consider the health and safety of all the inmates and employees of the institution, mandatory AIDS testing is reasonable and can be conducted without first obtaining a warrant and without probable cause.

256

Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 197-198 Level: Difficult Critical Thinking: 1. Do you agree with how recordkeeping and reporting is addressed by the APA? Explain.

Answer: Student answers will vary.

Objective: Identify at least three methods discussed in the chapter that agencies use to collect information (or require records to be maintained) from people and businesses under the federal law.

Page number: 176 Level: Difficult 2. To what extent should business entities, such as corporations, be entitled to assert the Fourth Amendment prohibition against unreasonable searches and the Fifth Amendment privilege against self-incrimination? Explain your position.

Answer: Student answers will vary.

Objective: Apply the law (e.g., APA, Fourth Amendment) that you learned to case scenarios involving agency information collection and inspections.

Page number: 179 Level: Difficult MC: 1. c 2. d 3. d 4. a 5. d 6. b 7. b 8. c 9. c 10. a 11. b 12. d 13. a 14. e 15. b 16. b 17. b 18. d 19. c 20. c T/F: 257

1. a 2. b 3. b 4. b 5. a 6. b 7. a 8. b 9. a 10. b 11. a 12. b 13. b 14. a 15. b 16. a 17. a 18. b 19. a 20. b 21. b Fill in the Blank: 1. probable cause 2. privacy 3. duces tecum 4. closely 5. warrant 6. self-incrimination 7. Skinner v. Railway Labor Executive Ass’n 8. Vernonia School District v. Acton 9. Reporting 10. Recordkeeping Matching: 1. b 2. a 3. e 4. d 5. c 6. c 7. b 8. a 9. a 10. b 11. d 12. c Essay: 258

1. The APA does not require particular recordkeeping or reporting based on the concept that the APA is intended to be procedural rather than substantive. The APA does, however, provide that particular reporting may be compulsory pursuant to requirements stated in other statutes.

2. Courts have recognized that administrative inspections differ from searches in criminal cases in several respects. First, administrative searches usually do not have as their purpose the securing of evidence to support a criminal prosecution. Second, it is generally recognized that in today’s complex, urbanized society, agencies must be given broad authority to enforce their mandates. Third, there is a lower expectation of privacy in business premises, which are normally public operations, than in the home or in one’s person.

3. In Dunn v. White, the issue of mandatory AIDS testing was raised by a prison inmate.

The inmate, who was being disciplined for refusing to submit to AIDS testing, claimed that the government was violating his Fourth Amendment rights by compelling him to submit to an AIDS test without having probable cause or a warrant. The Tenth Circuit Court of Appeals found that such a test is a search under the Fourth Amendment.

However, because prison officials have the responsibility of making placement, segregation, and treatment decisions concerning inmates, and because they must consider the health and safety of all the inmates and employees of the institution, mandatory AIDS testing is reasonable and can be conducted without first obtaining a warrant and without probable cause.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

Test Item File Chapter 8 Multiple Choice: 1. The process in which a nonparty to a case claims an interest in the outcome and 259

becomes a party is called: a. interdiction b. insurrection c. intervention d. inclusion Answer: c Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 211 Level: Intermediate 2. The Ashbacker Doctrine states that: a. agencies may conduct separate hearings when two or more parties are competing for one license at the agencies’ option b. an agency must have one consolidated comparative hearing whenever two or more parties are competing for one license c. burdens of proof in licensing hearings must rise to the level of clear and convincing d. burdens of proof in licensing hearings are required to be a preponderance of the evidence based on due process grounds Answer: b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 212 Level: Difficult 3. Which of the following consists of oral questions answered orally? a. Depositions b. Interrogatories c. Requests for admissions d. Subpoena Answer: a Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Basic 4. The Jencks Act requires that: a. attorneys performing prosecutorial functions for the government must disclose prior statements of government witnesses prior to the witness testifying b. attorneys performing prosecutorial functions for the government must disclose prior statements of government witnesses after the witness testifies c. attorneys performing prosecutorial functions for the government are not required to disclose prior statements of government witnesses at any time d. none of the above Answer: b Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

260

Page number: 216 Level: Difficult 5. When a court acts on its own initiative it is said to be acting: a. de novo b. amicus curiae c. ex parte d. sua sponte Answer: d Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 223 Level: Intermediate 6. The following standards of proof are listed from least demanding to most demanding: a. clear and convincing; preponderance of the evidence; beyond a reasonable doubt b. preponderance of the evidence; beyond a reasonable doubt; clear and convincing c. preponderance of the evidence; clear and convincing; beyond a reasonable doubt d. beyond a reasonable doubt; clear and convincing; preponderance of the evidence e. clear and convincing; beyond a reasonable doubt; preponderance of the evidence Answer: c Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 225 Level: Difficult 7. Which of the following is not a measure taken to assure ALJ independence? a. All ALJs are paid the same salary by the government, adjusted only by years of experience. b. ALJs are selected from a list of qualified applicants by the Civil Service Commission. c. ALJs are assigned to cases using a rotation. d. ALJs may be removed for good cause only.

Answer: a Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 226 Level: Intermediate 8. Which of the following may be imposed on both parties and witnesses? a. Depositions b. Interrogatories c. Requests for admissions d. All of the above apply to both parties and witnesses.

Answer: a Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 261

Level: Basic 9. The rule of necessity: a. requires that decisions in formal adjudicative hearings be in writing b. requires that decisions in formal adjudicative hearings be in writing and supported by findings and conclusions c. requires that decisions in formal adjudicative hearings be in writing and supported by findings and conclusions as well as reasons and bases for the decision d. none of the above Answer: d Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 233 Level: Intermediate 10. Contact between an individual and a decision maker without the other parties being present is considered: a. de novo b. amicus curiae c. ex parte d. sua sponte Answer: c Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 234 Level: Intermediate 11. The most common form of ALJ opinions is: a. final decisions b. initial decisions c. recommended decisions d. preliminary decisions Answer: b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 236 Level: Basic 12. The APA’s position on the right to counsel is best characterized by which of the following? a. All parties have the right to counsel. b. Only those parties with constitutional rights at risk are entitled to counsel. c. Presiding officers must approve the use of counsel on a case-by-case basis. d. There is no right to counsel in administrative hearings.

Answer: a

262

Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 234 Level: Intermediate 13. Which of the following is considered a nondiscovery device? a. Requests for admissions b. Bills of particulars c. Subpoenas d. Stipulations Answer: d Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Basic 14. Amanda is a cab driver. Her taxi license will expire at midnight on August 8. The applicable law requires that she apply for continuation of the license at least 30 days prior to expiration and that a decision regarding continuation or denial must be made in a timely fashion. Her application was made in a timely manner. It is now August 9 and she has not heard from the licensing board. a. Her license is expired and she may not legally operate a taxi. b. Her license is automatically renewed for up to 30 days, allowing her to resubmit her application for continuance. c. Her license is automatically renewed until the decision on the renewal is made. d. Her license is automatically renewed as if the continuation had been approved.

Answer: c Objective: Explain when an adjudication is required under the APA, and apply this principle to a set of facts.

Page number: 241 Level: Difficult 15. The concept of separation of functions does not apply to: a. administrative law judges b. agency heads c. administrative law judges and agency heads d. none of the above; separation of functions applies to everyone involved in the administrative process Answer: b Objective: Explain when an adjudication is required under the APA, and apply this principle to a set of facts.

Page number: 234 Level: Intermediate 16. The Legal Residuum Rule states that: a. evidence that courts view as incompetent may be used in an administrative hearing and may support the agency’s decision, but may not be the sole support of the decision 263

b. evidence that courts view as incompetent may be used in an administrative hearing and may be the sole support of the decision c. evidence that courts view as incompetent may not be used in an administrative hearing for any purpose d. evidence that courts view as incompetent may be used in an administrative hearing by a person or organization in support of their case, but may not be used by the agency or the government against the person or organization Answer: a Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 219 Level: Difficult 17. When a presiding officer accepts a fact as true, without supporting evidence, because that fact is commonly known to be true by average persons and experts in the field, this is called: a. organizational notice b. judicial notice c. official notice d. executive notice Answer: c Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 223 Level: Intermediate 18. The fact that administrative agencies may perform the functions of all three branches of government is called: a. separation of functions b. unification of functions c. combination of functions d. congruence of functions Answer: c Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 233 Level: Intermediate 19. Which of the following standards of proof is applied in cases where an agency‘s action encroaches on a legally protected right? a. Preponderance of the evidence b. Clear and convincing evidence c. Beyond a reasonable doubt d. Beyond a reasonable preponderance of the evidence Answer: b

264

Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 225 Level: Intermediate 20. Which of the following automatically becomes final unless appealed? a. Initial decisions b. Recommended decisions c. Preliminary decisions d. All of the above e. None of the above Answer: a Objective: Define and distinguish adjudications from rulemaking under the federal APA. Page number: 236 Level: Intermediate True-False 1. Rulemaking decisions made by agencies are considered orders. a. True b. False Answer: b Objective: Define and distinguish adjudications from rulemaking under the federal APA. Page number: 209 Level: Basic 2. Because it is not an Article III proceeding, cross-examination is rarely permitted in administrative hearings. a. True b. False Answer: b Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 209 Level: Intermediate 3. The exclusionary rule barring the introduction of illegally obtained evidence applies in all court and administrative hearings. a. True b. False Answer: b Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 221 Level: Intermediate 4. Recusal is the disqualification of a judge or administrative hearing officer because of 265

bias or interest regarding the case. a. True b. False Answer: a Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 231 Level: Basic 5. If a statute requires a “hearing,” that hearing is required to be a trial-type hearing. a. True b. False Answer: b Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 217 Level: Intermediate 6. The decision of an ALJ is final. a. True b. False Answer: a Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 226 Level: Basic 7. The level or degree to which a case must be proven is called the burden of persuasion. a. True b. False Answer: b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 224 Level: Intermediate 8. Licensing decisions made by agencies are considered orders. a. True b. False Answer: a Objective: Define and distinguish adjudications from rulemaking under the federal APA. Page number: 209 Level: Basic 9. In most instances, the person who carries the burden of production in a case also carries the burden of persuasion.

266

a. True b. False Answer: a Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 224 Level: Intermediate 10. The rule of necessity states that an agency may render a final binding decision orally when a time-sensitive issue is being decided. a. True b. False Answer: b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 233 Level: Intermediate 11. The physician-patient privilege allows a patient to object to a doctor testifying as to private information regarding the patient and allows the physician to object to the patient testifying as to private information regarding the physician. a. True b. False Answer: b Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 221 Level: Difficult 12. Possessing a belief about a case before it has been heard does not require an ALJ to resign from the case unless the ALJ has a firmly established belief as to what the final outcome should be. a. True b. False Answer: a Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 231 Level: Basic 13. The APA requires that people or organizations be given a minimum of 30 days notice regarding any hearings to which they are a party. a. True b. False Answer: b

267

Objective: Explain when an adjudication is required under the APA, and apply this principle to a set of facts.

Page number: 209 Level: Intermediate 14. Whenever notice is taken of a material fact, the agency must give the parties an opportunity to disprove the truth of the fact noticed. a. True b. False Answer: a Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 224 Level: Intermediate 15. ALJs are considered Article III judges. a. True b. False Answer: b Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 228 Level: Basic 16. The rule of necessity allows an agency to conduct an immediate hearing without adequate notice when an emergency exists. a. True b. False Answer: b Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 233 Level: Intermediate 17. Interrogatories may include questions asking for both narrative and short factual answers. a. True b. False Answer: a Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Basic 18. It is common practice for an agency to have a case heard by one official and decided by another. a. True 268

b. False Answer: a Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 226 Level: Intermediate 19. Appeals of ALJ decisions are conducted by agency heads sua sponte. a. True b. False Answer: b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 236 Level: Difficult 20. The APA encourages agencies to use alternative dispute resolution. a. True b. False Answer: a Objective: Explain when an adjudication is required under the APA, and apply this principle to a set of facts.

Page number: 217 Level: Intermediate 21. The Supreme Court has held that the states are special litigants for purposes of establishing standing. a. True b. False Answer: a Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 212 Level: Intermediate 22. If an individual’s case is not heard by an agency because the individual missed the agency’s filing deadlines, the doctrine of exhaustion of remedies may preclude judicial review. a. True b. False Answer: a Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 236 Level: Difficult

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Fill-in-the-blank: 1. A proceeding involving an agency’s charge that a person has violated a regulation is called a(n) _____.

Answer: adjudication Objective: Define and distinguish adjudications from rulemaking under the federal APA. Page number: 209 Level: Basic 2. The procedures used for formal _____ are borrowed from formal adjudication.

Answer: rulemaking Objective: Define and distinguish adjudications from rulemaking under the federal APA. Page number: 209 Level: Basic 3. Due process and the APA require that notice and a fair _____ be provided to interested parties.

Answer: hearing Objective: Explain when an adjudication is required under the APA, and apply this principle to a set of facts.

Page number: 209 Level: Basic 4. The APA requires that parties be _____ informed of the time, place, and nature of the hearing.

Answer: timely Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 209 Level: Intermediate 5. The rule established by the U.S Supreme Court , which mandates that an agency have one consolidated comparative hearing whenever two or more parties are competing for one license, is known as the ____ doctrine.

Answer: Ashbacker Objective: Understand what is required for notice and a hearing to be adequate under the APA, to satisfy due process, and applicable case law.

Page number: 212 Level: Difficult 6. There is no findings requirement for ____adjudications (hearings).

Answer: informal Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 237 Level: Difficult

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7. In formal adjudications, all parties are entitled to make opening and closing _____, call witnesses, and cross-examine witnesses.

Answer: statements Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 214 Level: Intermediate 8. Written questions presented to a party to be answered under oath and in writing are called _____.

Answer: interrogatories Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 214 Level: Basic 9. Under the ___ Act, a federal statute governing discovery used by those charged by an agency, attorneys who are performing prosecutorial functions for the government must disclose prior statements of government witnesses after those witnesses have testified.

Answer: Jencks Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Difficult 10. Written statements propounded by one party that must be responded to by the other party by admitting, denying, or objecting to each statement are called requests for _____.

Answer: admissions Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Intermediate 11. Similar to judicial notice, a presiding officer at an agency adjudication may take ____ notice of facts without any proof of that fact being offered.

Answer: official Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 224 Level: Intermediate 12. Administrative law judges are selected from a list of qualified applicants prepared by the Office of _____ Management, creating a corps of merit-appointed judges.

Answer: Personnel Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 228 Level: Intermediate

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Matching: Match the form of discovery in Column 1 to the definition in Column 2.

Column 1 1. Interrogatories

Column 2 a. Oral testimony given under oath but not in court

2. Request for admissions

b. Written questions presented to a party to be answered under oath and in writing c. Formal requests that a party provide specified documents d. Written statements propounded by one party that must be responded to by the other party, by admitting, denying, or objecting to each statement e. Federal statute that requires government employees responsible for prosecuting a case to disclose a witness’s prior statements to the other parties after the witness has testified

3. Jencks Act 4. Requests for Production of Documents

5. Deposition

1. *b 2. *d 3. *e 4.*c 5.*a Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Difficult

272

Match the standard of proof in formal adjudications in Column 1 with its description in Column 2.

Column 1

Column 2

6. Preponderance of the evidence

a. Used in administrative cases only when an agency’s action encroaches on a legally protected right 7. Beyond a reasonable doubt b. A doubt that causes a reasonable and prudent person to question the truth of an allegation is reasonable; used in criminal cases, rarely in administrative cases 8. Clear and convincing c. More likely true than not; any evidence probability greater than 50 percent; standard used in most administrative cases 6. *c 7. *b 8. *a Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 216 Level: Difficult Match the form of decision in formal adjudications in Column 1 with its description in Column 2.

Column 1

Column 2

9. Recommended

a. Agency delegates the authority to conduct the hearing to an ALJ or other official but requires that the decision be reviewed by the agency before it becomes final b. Agency heads preside over hearing and render a final decision c. Common form of ALJ decision; final unless appealed to the agency

10. Initial 11. Final

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9. *a 10. *c 11. *b Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 238 Level: Difficult Essay: 1. How do the rules pertaining to evidence differ between federal judicial trials and administrative hearings?

Answer: Judicial proceedings are required to follow rules promulgated in the Federal Rules of Evidence. These rules are strictly enforced in jury trials and are designed to exclude untrustworthy, irrelevant, or unduly prejudicial evidence. For example, hearsay is excluded, subject to closely defined exceptions, to preserve the parties’ right to confront and cross-examine their accuser. The Federal Rules of Evidence do not apply in administrative proceedings. Just as the rules are relaxed in bench trials, so too are they relaxed in administrative proceedings, relying on the ALJ or other presiding officer to fairly determine what is prejudicial and what should be admissible judging evidence by the “what it’s worth” standard. Agencies are empowered to create their own exclusionary rules and often permit hearsay and other forms of evidence barred in judicial proceedings.

Courts do generally hold agencies to the rule of residuum, which requires them to not base decisions entirely on what courts would consider to be inadmissible evidence.

Objective: Distinguish formal from informal adjudications, including the process differences and when each is required.

Page number: 218 Level: Difficult 2. Discuss what efforts have been made to ensure the independence of administrative law judges.

Answer: Congress provides for the “quasi-independence” of ALJs from their respective agencies. First, ALJs’ salaries are to be set by the Civil Service Commission, not by the agencies themselves. Second, ALJs are to be selected from a list of qualified applicants prepared by the Office of Personnel Management (OPM), creating a corps of meritappointed judges. The OPM reviews applications to determine if the minimum qualifications are met, administers a competitive ALJ examination, and in some instances conducts interviews. Third, ALJs may be removed for good cause only. An ALJ may also be disqualified from hearing a case because of personal bias.

Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 228-229 Level: Difficult

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3. Explain the different forms of discovery used in adjudications.

Answers: Interrogatories, requests for admission, depositions, requests for production of documents, and the Jencks Act are all forms of discovery in adjudications. Interrogatories are written questions presented to a party to be answered under oath and in writing.

Requests for admissions are written statements propounded by one party that must be responded to by the other party, by admitting, denying, or objecting to each statement. A deposition is oral testimony given under oath but not in court. Requests for production of documents are formal requests that a party provide specified documents. The Jencks Act is a federal statute that requires government employees responsible for prosecuting a case to disclose a witness’s prior statements to the other parties after the witness has testified.

Objective: Identify and explain the various forms of discovery used in adjudications.

Page number: 216 Level: Difficult 4. Explain the legal residuum rule.

Answer: The legal residuum rule is a legal doctrine stating that although agency decisions may be based in large part on evidence that would be inadmissible in court, an agency’s decision may not be based entirely on such evidence; a minimal “residuum” of competent evidence must support the agency’s determination.

Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 219 Level: Intermediate Critical Thinking: 1. Discuss whether you think administrative law judges should be appointed for life like U.S. District Court judges. What are the considerations for and against lifetime appointment? Explain your position.

Answer: Student answers will vary.

Objective: Explain how administrative law judges are appointed, the efforts that have been made to ensure their independence, and how the law addresses bias concerns.

Page number: 228 Level: Difficult 2. As in civil judicial trials, the standard of proof in adjudications is usually preponderance of the evidence. Some litigants have contended that due process requires a higher standard when an agency is engaged in a quasi-prosecutorial function. This position was rejected by the majority opinion by the U.S. Supreme Court in Steadman v.

SEC but two U.S. Supreme Court justices dissented in Steadman arguing that due process requires a higher standard. Discuss what standard of proof you think should govern agency actions when the agency is engaged in a quasi-prosecutorial function.

Answer: Student answers will vary.

Objective: Identify the different forms of decisions made in adjudications and the circumstances in which each form is issued.

Page number: 225 Level: Difficult 182

MC: 1. c 2. b 3. a 4. b 5. d 6. c 7. a 8. a 9. d 10. c 11. b 12. a 13. d 14. c 15. b 16. a 17. c 18. c 19. b 20. a T/F: 1. b 2. b 3. b 4. a 5. b 6. a 7. b 8. a 9. a 10. b 11. b 12. a 13. b 14. a 15. b 16. b 17. a 18. a 19. b 20. a 21. a 22. a Fill in the Blank: 183

1. adjudication 2. rulemaking 3. hearing 4. timely 5. Ashbacker 6. informal 7. statements 8. interrogatories 9. Jencks 10. admissions 11. official 12. Personnel Matching: 1. b 2. d 3. e 4. c 5. a 6. c 7. b 8. a 9. a 10. c 11. b Essay: 1. Judicial proceedings are required to follow rules promulgated in the Federal Rules of Evidence. These rules are strictly enforced in jury trials and are designed to exclude untrustworthy, irrelevant, or unduly prejudicial evidence. For example, hearsay is excluded, subject to closely defined exceptions, to preserve the parties right to confront and cross-examine their accuser. The Federal Rules of Evidence do not apply in administrative proceedings. Just as the rules are relaxed in bench trials, so too are they relaxed in administrative proceedings, relying on the ALJ or other presiding officer to fairly determine what is prejudicial and what should be admissible judging evidence by the “what it’s worth” standard. Agencies are empowered to create their own exclusionary rules and often permit hearsay and other forms of evidence barred in judicial proceedings.

Courts do generally hold agencies to the rule of residuum, which requires them to not base decisions entirely on what courts would consider to be inadmissible evidence.

2. Congress provides for the “quasi-independence” of ALJs from their respective agencies. First, ALJs’ salaries are to be set by the Civil Service Commission, not by the agencies themselves. Second, ALJs are to be selected from a list of qualified applicants prepared by the Office of Personnel Management (OPM), creating a corps of meritappointed judges. The OPM reviews applications to determine if the minimum qualifications are met, administers a competitive ALJ examination, and in some instances conducts interviews. Third, ALJs may be removed for good cause only. An ALJ may also be disqualified from hearing a case because of personal bias.

184

3. Interrogatories, requests for admission, depositions, requests for production of documents, and the Jencks Act are all forms of discovery in adjudications. Interrogatories are written questions presented to a party to be answered under oath and in writing.

Requests for admissions are written statements propounded by one party that must be responded to by the other party by admitting, denying, or objecting to each statement. A deposition is oral testimony given under oath but not in court. Requests for production of documents are formal requests that a party provide specified documents. The Jencks Act is a federal statute that requires government employees responsible for prosecuting a case to disclose a witness’s prior statements to the other parties after the witness has testified.

4. The legal residuum rule is a legal doctrine stating that although agency decisions may be based in large part on evidence that would be inadmissible in court, an agency’s decision may not be based entirely on such evidence; a minimal “residuum” of competent evidence must support the agency’s determination.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

Test Item File 185

Chapter 9 Multiple Choice: 1. Judicial authority to review agency actions may be derived from each of the following except: a. the Constitution b. statute c. common law d. all of the above e. none of the above Answer: d Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 245 Level: Basic 2. If a statute provides for judicial review: a. the statute is preempted by common law traditions b. no other method may be used to establish a court’s authority to hear a case c. the agency head nevertheless is authorized to choose the most efficient means of review d. the APA authorizes the agency head to reject the statute and utilize a different method if that method can be proven to be faster and more economical Answer: b Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 244 Level: Intermediate 3. Congressional authority to provide for review of agency actions extends to each of the following except: a. setting time limitations on review b. determining the method of review to be utilized c. precluding review altogether d. providing for review of actions committed to the agency discretion Answer: d Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 244 Level: Intermediate 4. Application of the rule in Lichten v. Eastern Air Lines: a. is followed in all federal and state courts b. is followed in all federal courts and some state courts c. is followed in some federal courts and all state courts d. is followed in some federal courts and some state courts 186

Answer: d Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 267 Level: Intermediate 5. Article III of the Constitution limits jurisdiction in federal courts to: a. theoretical disputes b. hypothetical disputes c. actual disputes d. any of the above Answer: c Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 278 Level: Basic 6. Under the common law, standing required a showing of: a. a violation of a legally protected right b. personal injury c. financial injury d. a violation of a legally protected right and/or personal injury e. personal injury and/or financial injury Answer: a Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 252 Level: Intermediate 7. Which of the following is not part of the three-prong test to determine standing created by the court in Association of Data Processing Service Organizations v. Camp? a. Plaintiff must be within the zone of interest protected by the statute or the constitutional guarantee in question. b. Plaintiff must suffer an injury in fact. c. There is a likelihood that the injury will be redressed by a favorable decision. d. Plaintiff has a verifiable intellectual or metaphysical interest in the issue.

Answer: d Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 252 Level: Difficult 8. A lawsuit brought by a citizen against another citizen who has defrauded the government is called a(n): a. qui tam action b. writ of mandamus suit 187

c. primary jurisdiction suit d. res judicata action Answer: a Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 250 Level: Difficult 9. Requiring exhaustion of remedies prior to judicial review is beneficial because: a. it promotes agency economy, saving the agency time and money b. it promotes agency autonomy and independence c. judges are frequently more experienced and more expert in agency-related matters, so it’s better to have the judge available to fix agency errors and mistakes after the agency determination d. all of the above e. none of the above Answer: b Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 267 Level: Difficult 10. The exhaustion of remedies doctrine does not apply to: a. civil rights cases b. cases where there is a constitutional challenge to the law being applied c. criminal cases d. all of the above e. none of the above Answer: d Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 267 Level: Intermediate 11. The standard of review in which a court gives no deference to the agency decision is called: a. de novo review b. substantial evidence standard review c. arbitrary, capricious, abuse of discretion standard review d. none of the above; all judicial review is required to offer some minimal level of deference to the agency decision Answer: a Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 280 Level: Intermediate

188

12. The doctrine that prevents the relitigation of an issue decided in a prior case is called: a. res judicata b. collateral estoppel c. equitable estoppel d. laches Answer: b Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 295 Level: Intermediate 13. In most cases, informal agency actions are subject to: a. de novo review b. substantial evidence standard review c. arbitrary, capricious, abuse of discretion standard review d. none of the above; these decisions are not subject to review Answer: c Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 281 Level: Intermediate 14. In a qui tam action, the citizen who files the lawsuit is called a(n): a. applicant b. claimant c. informer d. representative Answer: c Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 260 Level: Intermediate 15. For an organization to maintain a lawsuit: a. at least one member must satisfy the requisites of standing b. at least 10% of the members must satisfy the requisites of standing c. at least 25% of the members must satisfy the requisites of standing d. at least 51% of the members must satisfy the requisites of standing Answer: a Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 261 Level: Basic 16. Which type of review requires a court to affirm an agency decision if a reasonable person could have reached the same conclusion as the agency did? a. Certification de novo b. De novo standard 189

c. Abuse of discretion d. Substantial evidence standard Answer: d Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 281 Level: Intermediate 17. The standard of review in which a court gives the most significant deference to the agency decision is called: a. de novo review b. substantial evidence standard review c. arbitrary, capricious, abuse of discretion standard review d. none of the above; all judicial review is required to offer an equally substantial level of to the agency decision Answer: c Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 281 Level: Intermediate 18. Collateral estoppel is also known as: a. claim preclusion b. bar and merger c. issue merger d. issue preclusion Answer: d Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 296 Level: Intermediate 19. Which of the following is not an essential element to laches? a. There is a likelihood that the asserting party’s claim will be redressed by a favorable decision. b. The party against whom laches is asserted must have been aware of the right or claim that was not raised. c. There must have been an unreasonable delay in asserting the claim. d. The delay in asserting the claim must cause the adverse party to suffer some prejudice.

Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 299 Level: Difficult 20. Standing refers to: a. who may sue b. when suit must be brought 190

c. where suit must be brought d. all of the above Answer: a Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 252 Level: Basic True-False: 1. Most judicial authority to review agency action comes from statutes. a. True b. False Answer: a Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 244 Level: Basic 2. Legislative discretion in providing for review is considered an absolute authority. a. True b. False Answer: b Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 245 Level: Basic 3. Agency spending regarding appropriations of lump sum amounts not statutorily restricted are generally considered to be committed to the agency’s discretion. a. True b. False Answer: a Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 251 Level: Intermediate 4. Matters related to foreign affairs are generally considered to be areas committed to the agency’s discretion. a. True b. False Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 251 Level: Basic 191

5. The primary jurisdiction doctrine is applied only to closely regulated industries. a. True b. False Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 267 Level: Intermediate 6. Courts will refer an issue back to an agency only when the agency is empowered to enforce a desired or relevant remedy. a. True b. False Answer: b Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 267 Level: Intermediate 7. If the agency does not make a ruling within the statutorily allotted time, the exhaustion of remedies doctrine will not apply. a. True b. False Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 267 Level: Basic 8. A taxpayer has standing to sue only when he or she challenges an expenditure that violates a constitutional limitation on that power. a. True b. False Answer: a Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 256 Level: Intermediate 9. For a case to be considered ripe, the rule that comprises the issue in the case must have been applied and injury must have resulted prior to the filing of the case. a. True b. False Answer: b

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Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 276 Level: Intermediate 10. Res judicata applies only to final decisions on the merits. a. True b. False Answer: a Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 295 Level: Basic 11. Failure to raise the issue of agency jurisdiction at the administrative level bars the raising of the issue on appeal. a. True b. False Answer: b Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 267 Level: Intermediate 12. As a tax-paying American citizen, you are constitutionally afforded standing automatically to challenge a federal law or decision you feel is wrong. a. True b. False Answer: b Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 256 Level: Intermediate 13. Mixed questions of law and fact decided upon by an agency are required under the APA to be subject to a substantial evidence standard of review. a. True b. False Answer: b Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 292 Level: Difficult 14. An individual's attorney and court fees may be recovered if successful in a qui tam action. a. True b. False 193

Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 260 Level: Basic 15. Equitable estoppel applies to the government and private litigants equally. a. True b. False Answer: b Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 297 Level: Difficult 16. Because laches is a constitutionally protected right, a legislature may not prohibit its application by statute. a. True b. False Answer: b Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 299 Level: Intermediate 17. A writ issued by a superior court to an inferior court ordering that some act be done is called a writ of mandamus. a. True b. False Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 246 Level: Basic 18. A writ issued by a superior court to an inferior court ordering that some act not be done is called a writ of certiorari. a. True b. False Answer: b Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 246 Level: Basic 19. The APA specifically requires that courts applying the substantial evidence test 194

consider the entire agency record. a. True b. False Answer: a Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 281 Level: Intermediate 20. An agency’s acts taken in the process of conducting a formal adjudication are subject to the arbitrary, capricious, abuse of discretion standard of review. a. True b. False Answer: a Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 281 Level: Intermediate Fill-in-the-blank: 1. In the federal system, most review authority is derived from _____.

Answer: statute Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 244 Level: Basic 2. _____ is a common law writ issued by a superior tribunal to an inferior tribunal or person requiring that some action be taken.

Answer: Mandamus Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 246 Level: Intermediate 3. The right to _____, which is a common law writ issued by a court to a custodian of a person to bring the prisoner before the court to determine the lawfulness of the imprisonment, is assured by Article I, § 9, of the U.S. Constitution.

Answer: habeas corpus Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 246 Level: Intermediate 4. The _____ Act requires that the form of a lawsuit be as provided for by statute.

Answer: Administrative Procedure

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Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 246 Level: Difficult 5. If a statute does not provide for review, _____ review may be available.

Answer: nonstatutory Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 246 Level: Difficult 6. Time limitations established by Congress are _____enforced by federal courts.

Answer: strictly Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 244 Level: Intermediate 7. The U.S. Supreme Court has held that taxpayers may have ____ if a nexus between the taxpayers’ status and the expenditure can be shown and it can be shown that the statute exceeds a constitutional limitation.

Answer: standing Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 244 Level: Intermediate 8. Article III of the U.S. Constitution requires an actual case or _____ before federal courts have jurisdiction over a dispute.

Answer: controversy Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 278 Level: Difficult 9. The degree to which a court defers to an agency’s decision is known as a standard of _____.

Answer: review Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 278 Level: Intermediate 10. Under the _____ standard of review, courts review agency decisions anew with no deference given to the agency’s factual findings.

Answer: de novo 196

Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 278 Level: Difficult Matching: Match the standard of review in Column 1 to the definition in Column 2.

Column 1 1. De novo standard

2. Substantial evidence standard

3. Record de novo

4. Pure de novo

5. Abuse of discretion standard

Column 2 a. Permits a court to substitute its opinion for that of the agency although the court is limited to reviewing the record from the agency b. Standard of review that allows the reviewing court to judge a case anew with no deference accorded to the agency’s factual findings c. Standard applied on review that requires a court to affirm an agency decision if a reasonable person could have reached the same conclusion as the agency did d. Deferential standard under which agency actions are presumed valid and are affirmed if supported by any rational basis e. Permits a reviewing court to start from scratch

1. *b 2. *c 3. *a 4.*e 5.*d Objective: Identify and apply the appropriate standard of review to fact scenarios.

Page number: 278 Level: Difficult

Match the common law writ in Column 1 to the definition in Column 2.

Column 1 6. Prohibition

7. Habeas corpus

8. Certiorari

Column 2 a. Common law writ issued by a superior tribunal to an inferior tribunal requiring the inferior tribunal to produce a record or file so that review may be conducted b. Common law writ issued by a court to a custodian of a person to bring the prisoner before the court to determine the lawfulness of the imprisonment c. Common law writ issued by a superior 197

9. Mandamus

tribunal to an inferior tribunal or person requiring that some action be taken d. Common law writ issued by a court to an inferior tribunal or person prohibiting the recipient from taking some act or hearing some case

6. *d 7. *b 8. *a 9.*c Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 246 Level: Difficult Match key term in Column 1 to the definition in Column 2.

Column 1 10. Ripeness

Column 2 a. Requirement that a person who brings a lawsuit have a personal interest in the case

11. Standing

b. Whether a case is sufficiently mature to be heard by a court c. Lawsuit brought by a citizen against one who has defrauded the government

12. Qui tam

10. *b 11. *a 12. *c Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

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Page number: 252, 260 Level: Intermediate Essay: 1. Explain how a court, when reviewing an administrative construction of a statute, applies the Chevron Doctrine. Be sure to specifically show the step-by-step thinking model that the court employs.

Answer: The first step in the application of the Chevron Doctrine is for the court to examine the enabling statute to determine the extent to which the Congress has addressed the specific issues at law. If Congress has expressly stated their intent clearly, the court will employ a de novo review to the issues at hand. Because Congress has spoken, the agency is afforded little or no discretion, so the court gives no deference to the agency's decision. This is called Chevron Step 1. If Congress has not delineated their intent, the court examines whether Congress has specifically delegated gap-filling authority to the agency. If the court determines that a delegation has indeed occurred, the agency’s actions or rules are reviewed using the arbitrary capricious standard if examining an informal action or rule and a substantial evidence standard if reviewing a formal action or rule. If the court finds no explicitly delegated gap-filling authority, the reasonableness standard is applied. This is called Chevron Step 2.

Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 287 Level: Difficult 2. Explain when a taxpayer can have standing to seek relief in federal court to mount a challenge under the Establishment Clause.

Answer: Under Flast v. Cohen, federal taxpayers met the standing requirement to mount an Establishment Clause challenge to a federal statute providing General Treasury funds to support, inter alia, textbook purchases for religious schools. To have standing under Flast, taxpayers must show (1) a “logical link” between the plaintiff's taxpayer status “and the type of legislative enactment attacked,” and (2) “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.”

Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 256 Level: Difficult 3. Explain the common law writs for review.

Answer: At common law, courts could issue various writs to agencies and agency officials that were not specifically provided for by statute, such as certiorari, mandamus, habeas corpus, and prohibition. Certiorari is a common law writ issued by a superior tribunal to an inferior tribunal requiring the inferior tribunal to produce a record or file so that review may be conducted. Mandamus is a common law writ issued by a superior tribunal to an inferior tribunal or person requiring that some action be taken. Habeas corpus, Latin for “you may have the body," is a common law writ issued by a court to a custodian of a person to bring the prisoner before the court to determine the lawfulness of 199

the imprisonment. Prohibition is a common law writ issued by a court to an inferior tribunal or person prohibiting the recipient from taking some act or hearing some case.

Objective: List, define, contrast, and apply to a fact scenario the common law and statutory sources of review authority.

Page number: 266 Level: Difficult 4. Discuss the timing and jurisdictional limitations set by Congress for appeals of administrative decisions.

Answer: Congress may provide for a time limitation on review. Both 60- and 90-day limits are common, although lesser and greater time periods are provided for by some statutes. In at least one instance, a 30-day limitation was upheld. Time limitations established by Congress are strictly enforced by federal courts. In addition to setting time limitations, Congress may also prescribe where an action is to be filed. For example, decisions under the Social Security Act (SSA) are appealable to district courts.

Objective: List, define, and apply to a fact scenario the most significant timing and common law limitations upon review authority.

Page number: 244 Level: Intermediate Critical Thinking: 1. In a split 5-4 decision, the U.S. Supreme Court held in Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436 (2011) that taxpayers lacked standing to bring an action alleging that an Arizona statute, which granted tuition tax credits to income taxpayers who contributed money to “student tuition organizations” (STO) that used the contributions to provide scholarships to students attending private schools, including religious schools, violated the First Amendment's Establishment Clause.

Justice Kennedy wrote the opinion of the court holding that the taxpayers lacked standing. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Discuss whether you agree with the majority opinion or the dissenting opinion in the case.

Answer: Student answers will vary.

Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 266 Level: Difficult 2. The exhaustion of available administrative remedies is a prerequisite for habeas relief for prisoners under 28 U.S.C. § 2241. A narrow exception to the exhaustion requirement for § 2241 habeas relief applies if a petitioner can demonstrate that exhaustion is futile.

Come up with a fact scenario where exhaustion would be considered futile.

Answer: Student answers will vary.

Objective: Determine, from a fact scenario, whether an individual, corporation, or other entity has standing to be heard.

Page number: 266 Level: Difficult 200

MC: 1. d 2. b 3. d 4. d 5. c 6. a 7. d 8. a 9. b 10. d 11. a 12. b 13. c 14. c 15. a 16. d 17. c 18. d 19. a 20. a T/F: 1. a 2. b 3. a 4. a 5. a 6. b 7. a 8. a 9. b 10. a 11. b 12. b 13. b 14. a 15. b 16. b 17. a 18. b 19. a 20. a Fill in the Blank: 1. statute 2. Mandamus 3. habeas corpus 201

4. Administrative Procedure 5. nonstatutory 6. strictly 7. standing 8. controversy 9. review 10. de novo Matching: 1. b 2. c 3. a 4. e 5. d 6. d 7. b 8. a 9. c 10. b 11. a 12. c Essay: 1. The first step in the application of the Chevron Doctrine is for the court to examine the enabling statute to determine the extent to which the Congress has addressed the specific issues at law. If Congress has expressly stated their intent clearly, the court will employ a de novo review to the issues at hand. Because Congress has spoken, the agency is afforded little or no discretion, so the court gives no deference to the agency's decision.

This is called Chevron Step 1. If Congress has not delineated their intent, the court examines whether Congress has specifically delegated gap-filling authority to the agency.

If the court determines that a delegation has indeed occurred, the agency’s actions or rules are reviewed using the arbitrary capricious standard if examining an informal action or rule and a substantial evidence standard if reviewing a formal action or rule. If the court finds no explicitly delegated gap-filling authority, the reasonableness standard is applied. This is called Chevron Step 2.

2. Under Flast v. Cohen, federal taxpayers met the standing requirement to mount an Establishment Clause challenge to a federal statute providing General Treasury funds to support, inter alia, textbook purchases for religious schools. To have standing under Flast, taxpayers must show (1) a “logical link” between the plaintiff's taxpayer status “and the type of legislative enactment attacked,” and (2) “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.”

3. At common law, courts could issue various writs to agencies and agency officials that were not specifically provided for by statute, such as certiorari, mandamus, habeas corpus, and prohibition. Certiorari is a common law writ issued by a superior tribunal to an inferior tribunal requiring the inferior tribunal to produce a record or file so that review may be conducted. Mandamus is a common law writ issued by a superior tribunal to an inferior tribunal or person requiring that some action be taken. Habeas corpus, Latin for “you have the body," is a common law writ issued by a court to a 202

custodian of a person to bring the prisoner before the court to determine the lawfulness of the imprisonment. Prohibition is a common law writ issued by a court to an inferior tribunal or person prohibiting the recipient from taking some act or hearing some case.

4. Congress may provide for a time limitation on review. Both 60- and 90-day limits are common although lesser and greater time periods are provided for by some statutes. In at least one instance, a 30-day limitation was upheld. Time limitations established by Congress are strictly enforced by federal courts. In addition to setting time limitations, Congress may also prescribe where an action is to be filed. For example, decisions under the Social Security Act (SSA) are appealable to district courts.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

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Test Item File Chapter 10 Multiple Choice: 1. Which of the following is not a FOIA form of disclosure? a. Publication b. Inspection and copying c. Production upon request d. Creation Answer: d Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 303 Level: Basic 2. The Privacy Act requires that certain ________, held by the government, not be disclosed. a. private information regarding individuals b. public information regarding agencies c. public information regarding Congress d. public information regarding individuals e. all of the above Answer: a Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 321 Level: Basic 3. Records concerning the enforcement of criminal laws are not subject to disclosure under the: a. FOIA b. Privacy Act c. FOIA and Privacy Act d. none of the above; records concerning the enforcement of criminal laws are not exempted from disclosure Answer: c Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 321 Level: Difficult 4. The FOIA requires that all agencies maintain and make available for public inspection and copying a current index of materials required to be made available or published. This index must be published at least: 204

a. monthly b. quarterly c. semi-annually d. annually Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 305 Level: Intermediate 5. After an agency has received a request for information, the agency has ________ business days to determine whether it will comply. a. 10 b. 20 c. 30 d. 45 Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 306 Level: Basic 6. When a request for information is made by an educational, noncommercial scientific, or news media organization: a. only copying fees may be charged b. only search expenses may be charged c. only review expenses may be charged d. search, review, and copying expenses may be charged Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 309 Level: Intermediate 7. For the FOIA exemption regarding national defense and/or foreign policy to apply: a. Congress must specifically refer to the document or information in a statute b. the president must issue an executive order c. the document or information must be covered under the Privacy Act also d. the president must review the document or information and authorize an exemption by signed letter to the agency in possession of the document or information Answer: b

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Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 307 Level: Difficult 8. Which of the following is not a positive value attributable to the privacy issue related to disclosure and nondisclosure of information? a. It preserves trust, autonomy, and right to remain silent. b. It preserves personal facts, control, personal independence, and dignity. c. It preserves the rights of a few while sacrificing the public’s need to know. d. It preserves freedom from coercion, excluded facts, and encourages trusting communication.

Answer: c Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 324 Level: Intermediate 9. Rodney has properly requested the opportunity to review his own records compiled and stored by an agency. No valid exemption exists, yet he is denied access. If he chooses to sue, he must file suit within how many years? a. One year b. Two years c. Three years d. Four years Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 327 Level: Basic 10. ________ require that, generally, an agency’s meetings be held open to the public for observation. a. Blue laws b. Prime directive laws c. Open disclosure laws d. Sunshine laws Answer: d Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Basic

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11. Every agency must report the total number of closed meetings, reasons for the closed meetings, and all related litigation to Congress: a. monthly b. quarterly c. semi-annually d. annually Answer: d Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 330 Level: Intermediate 12. The primary remedy available for aggrieved persons under the FOIA is: a. compensatory damages b. compensatory and punitive damages c. injunctive relief d. specific performance Answer: c Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 13. In camera review means: a. individuals may review their records b. individuals may review their records and copy them c. the court may review records in open court d. the court may review records in private Answer: d Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 327 Level: Basic 14. Which of the following is not considered a critical infrastructure under the new exemption to the FOIA after the attacks on the United States of September 11, 2001? a. Education b. Banking c. Health care d. Communications Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

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Page number: 310 Level: Intermediate 15. Attorney fees may be awarded to successful litigants under the: a. FOIA b. Privacy Act c. FOIA and Privacy Act d. none of the above; attorney fees are not recoverable in information and privacy cases Answer: c Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 319 Level: Difficult 16. Which of the following is not an exception to the Privacy Act nondisclosure requirements? a. Disclosures to satisfy court orders b. Disclosures to the president c. Disclosures that may occur for routine use d. Disclosures to either body of Congress Answer: b Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 321 Level: Intermediate 17. Venue under the FOIA and Privacy Act permits a lawsuit in any of the following except: a. where the records are located b. where the complainant resides c. the District of Columbia d. where the incident or occurrence that the information pertains to occurred Answer: d Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 327 Level: Intermediate 18. The maximum fine authorized under the Privacy Act’s criminal provisions is: a. $2,500 b. $5,000 c. $7,500 d. $10,000 Answer: b

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Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 328 Level: Intermediate 19. Under the Privacy Act, any agency that proposes to establish or alter any system of records must provide notice to: a. Congress b. the Office of Management and Budget c. Congress and the Office of Management and Budget d. none of the above; changes are published in the Federal Register and a hearing is conducted to decide the appropriateness and legality of the changes Answer: c Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 329 Level: Intermediate 20. When an agency is required to disclose a document but blacks out or otherwise conceals exempted information, the information is said to be: a. redacted b. revoked c. rescinded d. repealed Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 308 Level: Intermediate True-False: 1. Geological information concerning wells in the United States is available to U.S. citizens pursuant to the FOIA. a. True b. False Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 2. Federal courts review FIOA cases de novo.

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a. True b. False Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 3. It is the obligation of the party seeking to review a document to prove that the document does not fall within an FOIA exception prohibiting its review. a. True b. False Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 4. The FOIA addresses the right of citizens regarding information but does not afford noncitizens the same rights to information. a. True b. False Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 5. The FOIA does not require that agencies deliver documents to requesters but only that the documents be made available. a. True b. False Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 6. Law suits brought by submitters of records to agencies to prevent disclosure of information are known as reverse FOIA suits. a. True b. False 210

Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 313 Level: Intermediate 7. The Privacy Act prohibits agencies from collecting information about people. a. True b. False Answer: b Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 321 Level: Intermediate 8. If an individual properly requests an amendment to their records due to inaccurate, untimely, or incomplete information, should the agency deny the request for amendment, no judicial review is available because this type of issue is committed to the discretion of the agency and is nonreviewable. a. True b. False Answer: b Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 327 Level: Intermediate 9. Agencies are required to keep an audio record or transcript of all closed meetings. a. True b. False Answer: a Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 330 Level: Intermediate 10. Criminal acts under the Privacy Act are felonies. a. True b. False Answer: b Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

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Page number: 328 Level: Intermediate 11. Agency statements of policy and interpretation adopted by the agency but not published in the Federal Register must be made available for inspection and copying. a. True b. False Answer: a Objective: Compare and contrast the objectives of the FOIA and Privacy Acts, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 304 Level: Intermediate 12. An agency may not maintain a record of how a person exercises his or her rights under the First Amendment of the Constitution unless authorized to do so by statute or such information is within the scope of a law enforcement activity. a. True b. False Answer: a Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 318 Level: Intermediate 13. The public may be excluded from an agency meeting regarding an accusation of a crime but must be permitted to observe formal censure hearings. a. True b. False Answer: b Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Intermediate 14. Under the Privacy Act, the term individual has not been interpreted to include businesses. a. True b. False Answer: a Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 320 Level: Intermediate 15. An agency’s current index of materials required to be made available or published 212

must be published in the Federal Register. a. True b. False Answer: a Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 304 Level: Intermediate 16. A civil action to enforce a right to disclosure under the FOIA may be brought in state or federal court. a. True b. False Answer: b Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Intermediate 17. The FOIA does not require an agency to protect an individual’s privacy. a. True b. False Answer: a Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: 307 Level: Intermediate 18. The Trade Secrets Act prohibits the disclosure of trade secrets and related information by private individuals. a. True b. False Answer: b Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 331 Level: Intermediate 19. When an individual reviews their records pursuant to an FOIA request, they may bring anyone they choose to while reviewing the record. a. True b. False Answer: a

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Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 305 Level: Intermediate 20. An agency may not assess a fee for the first two hours of search time or the first 100 pages of copying unless the requester is commercial. a. True b. False Answer: a Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 309 Level: Intermediate Fill-in-the-blank: 1. The Privacy Act defines _____ use as the use of a record for a purpose compatible with the purpose for which it was collected.

Answer: routine Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 321 Level: Intermediate 2. The Privacy Act specifically forbids maintaining a record on how any person exercises his or her rights under the _____ Amendment to the U.S. Constitution, unless authorized to do so by statute or such information is within the scope of a law enforcement activity.

Answer: First Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 322 Level: Basic 3. The Freedom of Information Act (FOIA) provides that no fee can be charged for the first ___ hours of search time or for the first 100 pages of copying, except for commercial requesters.

Answer: two Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 309 Level: Intermediate 214

4. Lawsuits brought by submitters of records to agencies to prevent the disclosure of information are known as _____ FOIA actions.

Answer: reverse Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 313 Level: Intermediate 5. The Freedom of Information Act (FOIA) provides for three forms of disclosure: publication, _____ and copying, and production upon request.

Answer: inspection Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 304 Level: Intermediate 6. FOIA §552(a)(1), which requires that agencies make certain information available for inspection and copying, is sometimes referred to as the _____ requirement because it is satisfied by providing a location for people to inspect and copy documents.

Answer: reading room Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 305 Level: Difficult 7. The Freedom of Information Act (FOIA) permits for _____examination of records conducted by the presiding judge, usually in chambers outside the presence of the public, to preserve the confidentiality of documents while giving the judge the opportunity to review the records and make an informed decision.

Answer: in camera Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

Page number: 319 Level: Difficult 8. The purpose of the Freedom of Information Act (FOIA) is to make governmental records available to the ____whereas the purpose of the Privacy Act is to withhold sensitive documents from public disclosure.

Answer: public Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

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Page number: 303 Level: Intermediate 9. The Government in the Sunshine Act applies only to _____agencies or agencies that are headed by more than one person.

Answer: collegial Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Difficult 10. A fundamental tenet of democracy is____ of government.

Answer: openness Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Difficult

Matching: Match the statement in Column 1 to the appropriate act in Column 2.

Column 1 1. The purpose of the law is to make governmental records available to the public.

2. The purpose of the law is to withhold sensitive documents from public disclosure.

3. There is a presumption in the law that an individual may access information maintained pertaining to him or her.

4. The law generally requires that agency meetings be open to public observation.

5. There is a presumption in the law that all information held by the government is available to the public.

6. The law provides for an exemption from disclosure for information concerning national security or foreign policy that has been declared secret by the president.

Column 2 a. Freedom of Information Act

b. Privacy Act

c. Government in Sunshine Act

d. Trade Secrets Act

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7.The law provides for an exemption from disclosure for law enforcement records.

8. The law provides that information about an individual may be disclosed by the government without obtaining the individual’s consent if the information is for statistics and reporting, where individuals will not be identified.

9. The law provides for an exemption from disclosure for personnel and medical files.

10. The law provides that information about an individual may be disclosed by the government without obtaining the individual’s consent if ordered by a court.

1. *a 2. *b 3. *b 4.*c 5.*a 6.*a 7.*a 8.*b 9.*a 10.*b Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: passim Level: Difficult Essay: 1. Megan’s Law and other sexual predator laws are statutes promulgated in most states that require sex offenders to register with police authorities when they move into a neighborhood. Furthermore, many such statutes require that specific notice be given to occupants in the neighborhood naming the offender and providing his or her picture and address. Discuss the legality of these mandatory disclosure laws with regard to the FOIA and the Privacy Act. Answer: The FOIA requires that the government disclose information in its possession subject to nine exemptions. One such exemption addresses law enforcement records.

Because the offender’s trial and conviction have already occurred, there is no danger that 217

a proceeding will be impeded nor would the information disclosed identify sources or disclose techniques. This exemption would therefore not apply. The Privacy Act requires that the government not disclose private information about an individual unless one of eleven exemptions applies or consent to disclosure is given. It is arguable that the exemption pertains to compelling circumstances where the health and safety of a person is at issue. Because many sexual offenders exhibit recidivism, it is easily argued that the public, particularly children, are at risk when in contact, or even proximity, with such offenders. The balancing of the offender’s interests to privacy is outweighed by the public's legitimate interest in being informed. A second argument permitting disclosure is that because the trial is a public record, there is not a privacy right for the offender to protect.

Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: passim Level: Difficult 2. A federal prisoner incarcerated on racketeering and drug-related convictions brings an action against the U.S. Department of Justice (DOJ) alleging violation of the Government in the Sunshine Act in connection with his requests for a variety of records that he believes would exonerate him and show government misconduct. Describe the purpose of the Government in the Sunshine Act and how the act could help the prisoner.

Answer: The Government in the Sunshine Act generally requires that agency meetings be open to public observation: “[E]very portion of every meeting of an agency shall be open to public observation.” Congress enacted the Sunshine Act to ensure that the government “conduct[s] the public's business in public.” Shurberg Broadcasting of Hartford, Inc. v. FCC, 617 F.Supp. 825, 828 (D.D.C.1985). The prisoner could assert that the U.S. Department of Justice violated the act in seeking post-conviction relief.

Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Difficult 3. Describe the three modalities of providing public access to information under the Freedom of Information Act (FOIA).

Answer: The Freedom of Information Act (FOIA) provides for three forms of disclosure: publication, inspection and copying, and production upon request. Agencies meet the publication requirement by publishing information in the Federal Register.

The second form of disclosure entails making information available for public inspection and copying. FOIA §552(a)(1) requires that agencies make certain information available for inspection and copying. The production-upon-request method is a catch-all, providing people with access to most public records. All documents, other than those specified for publication or inspection and copying, fall into this category.

Objective: Describe the basic architecture of the Freedom of Information Act (FOIA), including the three modalities of providing public access to information, listing and describing the major exceptions to the FOIA, and the process for enforcing FOIA rights.

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Level: Difficult 4. An employee brings an action against the Department of Veterans Affairs (VA), alleging that the VA violated the Privacy Act by disclosing to his union representative his HIV-positive status and his use of marijuana for medical purposes. Discuss the purpose of the Privacy Act. Answer: The purpose of the Privacy Act is to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person's prior consent. In its proscription against disclosing a record contained in a system of records, the Privacy Act forbids disclosure of an employee's personal information when that information was acquired from an agency's system of records and was eventually released by officials involved with the data retrieval. 5 U.S.C. § 552a(b).

The Privacy Act does not prohibit disclosure of information independently acquired. See Doe v. Department of Veterans Affairs of U.S., 519 F.3d 456 (8th Cir. 2008).

Objective: Describe the basic architecture of the Privacy Act, including the circumstances in which it prohibits or limits public access to information, and apply what you have learned to a fact scenario.

Page number: 320 Level: Difficult Critical Thinking: 1. Megan’s Law and other sexual predator laws are statutes promulgated in most states that require sex offenders to register with police authorities when they move into a neighborhood. Furthermore, many such statutes require that specific notice be given to occupants in the neighborhood naming the offender and providing his or her picture and address. Should a similar disclosure be enforced against all felons? After all, the offender has served his or her sentence. Why or why not? Be very specific.

Answer: Student answers will vary.

Objective: Compare and contrast the objectives of the FOIA and Privacy Act, including an explanation of how the two interact; apply what you have learned to a fact scenario.

Page number: passim Level: Difficult 2. Discuss whether you think parole hearings should be open to the public under the Government in the Sunshine Act. Explain your position.

Answer: Student answers will vary.

Objective: Describe the basic architecture of the Government in the Sunshine Act, applying its mandates to a fact scenario.

Page number: 329 Level: Difficult MC: 1. d 2. a 3. c 4. b 219

5. a 6. a 7. b 8. c 9. b 10. d 11. d 12. c 13. d 14. a 15. c 16. b 17. d 18. b 19. c 20. a T/F: 1. b 2. a 3. b 4. b 5. a 6. a 7. b 8. b 9. a 10. b 11. a 12. a 13. b 14. a 15. a 16. b 17. a 18. b 19. a 20. a Fill in the Blank: 1. routine 2. First 3. two 4. reverse 5. inspection 6. reading room 7. in camera 8. public 220

9. collegial 10. openness Matching: 1. a 2. b 3. b 4. c 5. a 6. a 7. a 8. b 9. a 10. b Essay: 1. The FOIA requires that the government disclose information in its possession subject to nine exemptions. One such exemption addresses law enforcement records. Because the offender’s trial and conviction have already occurred, there is no danger that a proceeding will be impeded nor would the information disclosed identify sources or disclose techniques. This exemption would therefore not apply. The Privacy Act requires that the government not disclose private information about an individual unless one of eleven exemptions applies or consent to disclosure is given. It is arguable that the exemption pertains to compelling circumstances where the health and safety of a person is at issue. Because many sexual offenders exhibit recidivism, it is easily argued that the public, particularly children, are at risk when in contact, or even proximity, with such offenders. The balancing of the offender’s interests to privacy is outweighed by the public's legitimate interest in being informed. A second argument permitting disclosure is that because the trial is a public record, there is not a privacy right for the offender to protect.

2. The Government in the Sunshine Act generally requires that agency meetings be open to public observation: “[E]very portion of every meeting of an agency shall be open to public observation.” Congress enacted the Sunshine Act to ensure that the government “conduct[s] the public's business in public.” Shurberg Broadcasting of Hartford, Inc. v. FCC, 617 F.Supp. 825, 828 (D.D.C.1985). The prisoner could assert that the U.S. Department of Justice violated the act in seeking post-conviction relief.

3. The Freedom of Information Act (FOIA) provides for three forms of disclosure: publication, inspection and copying, and production upon request. Agencies meet the publication requirement by publishing information in the Federal Register.

The second form of disclosure entails making information available for public inspection and copying. FOIA §552(a)(1) requires that agencies make certain information available for inspection and copying. The production-upon-request method is a catch-all, providing people with access to most public records. All documents, other than those specified for publication or inspection and copying, fall into this category.

4. The purpose of the Privacy Act is to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person's prior consent. In its proscription against disclosing a record contained in a system of records, the Privacy Act forbids disclosure of an employee's personal information when 221

that information was acquired from an agency's system of records and was eventually released by officials involved with the data retrieval. 5 U.S.C. § 552a(b). The Privacy Act does not prohibit disclosure of information independently acquired. See Doe v.

Department of Veterans Affairs of U.S., 519 F.3d 456 (8th Cir. 2008).

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

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Test Item File Chapter 11 Multiple Choice: 1. Which of the following is not an exception under the Federal Tort Claims Act? a. Executive functions b. Claims arising out of intentional torts c. Ministerial and operational acts d. Discretionary functions Answer: c Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 341 Level: Intermediate 2. Section 1983 actions arise from: a. the Civil Rights Act of 1864 b. the Civil Rights Act of 1871 c. the Civil Rights Act of 1964 d. the Civil Rights Act of 1991 Answer: b Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit §1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 350 Level: Intermediate 3. Which of the following is not recoverable against local governments in a § 1983 suit? a. Actual damages b. Declaratory relief c. Punitive damages d. Injunctive relief Answer: c Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 352 Level: Intermediate 4. In Bowers v. City of Chattanooga, the court decided that because there was a clear plan and policy of the state and city, the decision left to a bus driver on where to stop at a particular intersection was: a. executive 223

b. operational c. discretionary d. managerial Answer: b Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 342 Level: Difficult 5. Awards for pain and suffering would be through: a. special damages b. nominal damages c. punitive damages d. general damages Answer: d Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 357 Level: Basic 6. Law enforcement officers enjoy absolute immunity: a. when testifying in court b. during investigations c. when conducting warrantless searches and arrests d. all of the above e. none of the above Answer: a Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Intermediate 7. States may not sue under § 1983 unless under a: a. parens patriae theory b. respondeat superior theory c. declaratory judgment theory d. pendent jurisdiction theory Answer: a Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 351 Level: Intermediate

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8. The decision to fight a fire is ________; fighting the fire is ________. a. discretionary; ministerial b. discretionary; discretionary c. ministerial; ministerial d. ministerial; discretionary Answer: a Objective: Explain the circumstances that can lead to private parties being treated like government officials for purposes of the liabilities covered in this chapter.

Page number: 341 Level: Intermediate 9. State immunity occurs because: a. a state is not a person as defined under § 1983 b. of the Eleventh Amendment c. a state is not a person as defined under § 1983 and because of the Eleventh Amendment d. none of the above Answer: c Objective: Describe the history and current state of the Sovereign Immunity Doctrine in the United States.

Page number: 351 Level: Difficult 10. Which of the following is not afforded immunity? a. Prosecutors b. Public defenders c. Prosecutors and public defenders d. Neither prosecutors nor public defenders; both enjoy immunity.

Answer: b Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Basic 11. A witness testifying at trial who commits perjury enjoys: a. absolute immunity for their testimony b. qualified immunity for their testimony c. official immunity for their testimony d. no immunity for their testimony Answer: a Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 362 Level: Basic 12. Official immunity gives public officials ________ immunity for the performance of 225

________ acts. a. absolute; ministerial b. qualified; ministerial c. absolute; discretionary d. qualified; discretionary Answer: c Objective: Explain the circumstances that can lead to private parties being treated like government officials for purposes of the liabilities covered in this chapter.

Page number: 373 Level: Intermediate 13. Under the Federal Tort Claims Act, law enforcement officers are currently immunized against: a. false arrest b. battery c. assault d. deceit Answer: d Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 341 Level: Intermediate 14. The power of the federal court to hear state law claims related to an underlying federal law claim is called: a. removal jurisdiction b. pendent jurisdiction c. remand jurisdiction d. parens patriae jurisdiction Answer: b Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 359 Level: Intermediate 15. The Civil Rights Act of 1871 was originally enacted to enforce the: a. Fifth Amendment b. Eighth Amendment c. Fourteenth Amendment d. None of the above Answer: c Objective: Identify and describe the historic source of governmental immunity.

Page number: 350 Level: Basic 226

16. The “Little Tucker Act” provides federal district courts concurrent jurisdiction in certain cases with the Claims Court when the amount in controversy is under: a. $10,000 b. $15,000 c. $20,000 d. $25,000 Answer: a Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 377 Level: Intermediate 17. If a person’s Eighth Amendment rights are violated by an FBI agent acting under color of law, a claim may be brought: a. under §1983 b. directly under the Constitution (a Bivens claim) c. under §1983 and directly under the Constitution (a Bivens claim) d. none of the above; the claim is brought under the Tucker Act Answer: c Objective: Describe the arguments both in favor of and in opposition to immunity for governments and government officers.

Page number: 381 Level: Difficult 18. To determine if a private party is acting under the direction of or pursuant to law, thereby permitting § 1983 to apply, the court will apply the following test: a. the nexus test b. the public function test c. the symbiosis test d. the compulsion test Answer: d Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit §1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 379 Level: Intermediate 19. Absolute immunity is: a. freedom from being sued for performing certain functions b. freedom from liability for performing certain functions c. freedom from punitive damages but not compensatory damages d. freedom from compensatory damages but not punitive damages Answer: a 227

Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 380 Level: Intermediate 20. Qualified immunity is: a. freedom from being sued for performing certain functions b. freedom from liability for performing certain functions c. freedom from punitive damages but not compensatory damages d. freedom from compensatory damages but not punitive damages Answer: b Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 361 Level: Intermediate 21. Which amendments to the U.S. Constitution require the government to pay just compensation to the property owner for takings? a. Fifth and Fourteenth Amendments b. Fifth and Fifteenth Amendments c. Fourth and Fourteenth Amendments d. Fourth and Tenth Amendments Answer: a Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Intermediate 22. If an individual speaks as a citizen on an issue of _____, the government can restrict speech only to the extent necessary to ensure the efficient and effective operation of the employer. a. private matter b. public concern c. private matter and public concern d. none of the above Answer: b Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Difficult True-False: 1. Most government programs are provided with a clear profit motive. a. True b. False Answer: b 228

Objective: Apply the law of governmental liability and immunities to private actors when they are performing governmental functions.

Page number: 379 Level: Basic 2. Government liability is more limited than personal liability. a. True b. False Answer: a Objective: Describe the history and current state of the Sovereign Immunity Doctrine in the United States.

Page number: 338 Level: Basic 3. Sovereign immunity makes a government free from liability but not suit. a. True b. False Answer: b Objective: Identify and describe the historic source of governmental immunity.

Page number: 338 Level: Basic 4. The Federal Tort Claims Act creates federal immunity for torts committed by governmental officials of the United States. a. True b. False Answer: b Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 340 Level: Intermediate 5. The police generally do not have a duty to individuals to prevent crime. a. True b. False Answer: a Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 345 Level: Intermediate 6. Color of law means legal, authorized, or required by the law. a. True b. False 229

Answer: b Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 353 Level: Difficult 7. The exhaustion of remedies doctrine requires that state and administrative remedies be exhausted before a § 1983 action may be filed. a. True b. False Answer: b Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 360 Level: Intermediate 8. A lawsuit against an officer in his or her official capacity is the same as suing the government. a. True b. False Answer: a Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 339 Level: Intermediate 9. Section 1983 does not contain a specific statute of limitations. a. True b. False Answer: a Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 360 Level: Basic 10. The plaintiff has a right to have a jury decide injunctive relief claims in § 1983 cases. a. True b. False Answer: b Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 357 Level: Intermediate 230

11. A judge is immune from liability, even if acting with malice, so long as the function performed is judicial. a. True b. False Answer: a Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Basic 12. The most common form of privatization involves the jettisoning of a service by a government body or agency, with said service then taken on completely by private industry. a. True b. False Answer: b Objective: Explain the circumstances that can lead to private parties being treated like government officials for purposes of the liabilities covered in this chapter.

Page number: 378 Level: Difficult 13. A lawsuit against an officer in his or her individual capacity is the same as suing the government. a. True b. False Answer: b Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 339 Level: Intermediate 14. Administrative law judges are entitled to absolute immunity when making statements during administrative proceedings. a. True b. False Answer: a Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Basic 15. Under the Federal Rules of Civil Procedure, a motion for dismissal may be granted when no genuine issue of material facts exists and a party is entitled to judgment as a matter of law. a. True 231

b. False Answer: b Objective: 368 Page number: Describe the history and current state of the Sovereign Immunity Doctrine in the United States.

Level: Difficult 16. There is no federal tort common or statutory law. a. True b. False Answer: a Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 340 Level: Intermediate 17. The public duty doctrine was created in the Federal Tort Claims Act. a. True b. False Answer: b Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 345 Level: Basic 18. Judges are not immune from prospective injunctive relief. a. True b. False Answer: a Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 363 Level: Intermediate 19. Under § 1983, corporations are considered persons and therefore are entitled to sue and seek redress for wrongs. a. True b. False Answer: a Objective: Explain the circumstances that can lead to private parties being treated like government officials for purposes of the liabilities covered in this chapter.

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Level: Difficult 20. Punitive damages may be awarded in § 1983 actions when the defendant’s actions are reckless or malicious. a. True b. False Answer: a Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit §1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 358 Level: Intermediate 21. With exceptions, the Eleventh Amendment generally provides immunity for states from liability in federal courts. a. True b. False Answer: a Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 360 Level: Intermediate 22. The Eleventh Amendment’s immunity shields local municipalities from liability in federal courts. a. True b. False Answer: b Objective: Describe the arguments both in favor of and in opposition to immunity for governments and government officers.

Page number: 360 Level: Intermediate 23. In a regulatory takings case, the property owner must demonstrate that the regulation denies the property owner all economically viable use of his or her land. a. True b. False Answer: a Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Intermediate 24. A professional football player is suspended by the league for one game for statements that the player made against the league's commissioner. The league, a private entity, has violated the player's First Amendment rights.

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a. True b. False Answer: b Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Intermediate Fill-in-the-blank: 1. In old England, the crown could do no wrong, which serves as the historical source of the doctrine of _____ immunity, holding that the government is immune from suit.

Answer: sovereign Objective: Identify and describe the historic source of governmental immunity.

Page number: 338 Level: Intermediate 2. One purpose in favor of government liability is to provide just _____ to harmed citizens.

Answer: compensation Objective: Describe the arguments both in favor of and in opposition to immunity for governments and government officers.

Page number: 338 Level: Difficult 3. Prosecutors are protected by only_____ immunity when performing investigative, law enforcement, and administrative functions.

Answer: qualified Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 364 Level: Intermediate 4. An administrative law judge is entitled to ____ immunity for statements made during administrative proceedings.

Answer: absolute Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Intermediate 5. The Tucker Act gives the U.S. _____Court jurisdiction over any claim for damages against the United States that is founded on the Constitution, statutes, or regulations of the United States.

Answer: Claims Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its 234

exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 375 Level: Difficult 6. One is subject to § 1983 only if acting under _____ of state law.

Answer: color Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 379 Level: Difficult 7. Federal contractors are entitled to _____ against state tort claims if the contractor can demonstrate that the contractor designed the product pursuant to federal guidelines and that it made the federal government aware of any known risks.

Answer: immunity Objective: Apply the law of governmental liability and immunities to private actors when they are performing governmental functions.

Page number: 379 Level: Difficult 8. Inmates can bring an action under § 1983 against private prison officials to enforce Fourteenth Amendment due process rights and the Eighth Amendment prohibition of _____ punishments through injunctive relief.

Answer: cruel and unusual Objective: Explain the circumstances that can lead to private parties being treated like government officials for purposes of the liabilities covered in this chapter.

Page number: 381 Level: Intermediate 9. When the government institutes regulations that prohibit a property owner from using his or her property as he or she intended, the property owner can argue that the government action constitutes a _____ taking.

Answer: regulatory Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Difficult 10. The _____ Amendment to the U.S. Constitution shields states from liability in federal courts under § 1983.

Answer: Eleventh Objective: Describe the history and current state of the Sovereign Immunity Doctrine in the United States.

Page number: 351 235

Level: Intermediate Matching: Match the type of remedy under § 1983 in Column 1 to the definition in Column 2.

Column 1 1. Declaratory judgment

2. Nominal damages

3. Punitive damages 4. General damages 5. Special damages

6. Actual damages

7. Injunction

Column 2 a. Damages awarded in extreme cases when it is determined that a defendant should be punished or there is a need to deter that defendant or others from engaging in similar future conduct b. Damages awarded when there has been a violation, but no actual damages have been proven c. Declaration by a court of the rights, obligations, and legal relations of parties d. Damages intended to compensate plaintiffs for their injuries e. Damages awarded for medical expenses, damage to property, loss of income, and other similar injuries f. Damages awarded for pain and suffering, emotional distress, humiliation, and other similar injuries g. Remedy that includes temporary restraining orders

Answer: 1.*a 2.*b 3.*c 4.*f 5.*e 6.*d 7.*g Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 357-358 Level: Difficult Match the action in Column 1 to the type of immunity in Column 2.

Column 1 8. A witness testifying in court

Column 2 a. Entitled to absolute immunity

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9. Law enforcement officers conducting an investigation 10. Law enforcement officers testifying in court 11. A public defender who defends an accused in a criminal case 12. A judge who issues a search warrant

b. Entitled to qualified immunity c. Not entitled to immunity

Answer: 8.*a 9.*b 10.*a 11.*c 12.*a Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 362 Level: Difficult Essay: 1. Discuss the public duty doctrine with regard to definition, theory, and application.

Using logical arguments, explain why you agree or disagree with the public duty doctrine.

Answer: The public duty doctrine holds that governments and corresponding agencies owe duties to the public at large but not to individual citizens. “In short, this doctrine holds that a duty to all translates as a duty to no one.” The doctrine is designed to keep the courts from meddling in the affairs of the legislative and executive branches of the government. Only when a special duty to the plaintiff exists will the duty to a specific individual be found and liability accrue.

Objective: Identify and describe the various forms of federal and state governmental liability and apply those to given fact scenarios.

Page number: 345 Level: Difficult 2. A prosecutor writes a memorandum expressing concerns about a search warrant issued by a judge. The prosecutor is terminated for cause. Discuss whether the government abridged the prosecutor's free speech rights.

Answer: The First Amendment prohibits the government from abridging free speech. In determining whether speech by a public employee is protected, the question is whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the government has broader discretion to restrict the speech, similar to a private employer. If the individual spoke as a citizen on an issue of public concern, the government can restrict speech only to the extent necessary to ensure the efficient and effective operation of the employer. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court 237

held that a district attorney’s memorandum outlining his concerns with a search warrant did not constitute protected speech, and thus his termination was not an abridgement of free speech, because the memorandum was written in the course of his official job responsibilities.

Objective: Apply the liabilities described in this chapter to cases involving free speech and takings.

Page number: 382 Level: Difficult 3. Explain the difference between Bivens actions and § 1983 actions.

Answer: There are differences between Bivens actions and § 1983 actions. One important difference is that individuals acting under color of federal law (as opposed to state law) can be sued in a Bivens suit. This is not true of § 1983 actions. However, Congress may explicitly (Hui) or implicitly (Vance) grant federal employees immunity against Bivens actions.

Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of Section 1983 actions, the degree to which immunities limit § 1983 actions against governments and government officials, and the remedies available under § 1983.

Page number: 371 Level: Difficult 4. Explain the difference between a ministerial act and a discretionary act under the Federal Tort Claims Act. Answer: The distinction between what is a “discretionary” and what is a “ministerial” function is not always clear. An act is discretionary if it involves making a choice from a variety of options. Discretionary acts involve judgment, planning, and policy decisions.

The greater the policy considerations, the more likely the decision will enjoy immunity.

If the law requires the performance of a specific act or applies specific standards to the performance of an act, then the act is likely ministerial, or, as some courts characterize it, operational. Similarly, once a discretionary decision to act is made, the remaining acts employed to carry out the decision are usually deemed ministerial.

Objective: Describe the architecture (who may sue and be sued, the elements, and basic process) of the Federal Tort Claims Act, including its purpose, the basic rule, and its exceptions. You should be able to do the same for constitutional claims, common law claims, and Tucker Act claims against governments.

Page number: 342 Level: Difficult 5. Explain the circumstances when a private government contractor is subject to liability for providing a traditional public function. Give an example where a private contractor could be found liable.

Answer: If the function performed has historically been exclusively public, the likelihood of applying § 1983 is high. In West v. Atkins, 487 U.S. 42 (1988), the U.S. Supreme Court held that a physician who worked part-time for a state correctional institution treating inmates was found to be performing a state function. As such, he was a state actor that could be sued under § 1983.

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Objective: Apply the law of governmental liability and immunities to private actors when they are performing governmental functions.

Page number: 380 Level: Difficult 6. Explain when law enforcement officials are entitled to absolute immunity and when law enforcement officials are entitled to qualified immunity.

Answer: Law enforcement officials are entitled to absolute immunity for enforcing court orders and testifying in court. Law enforcement officials are entitled to qualified immunity for investigations, warrantless searches and arrests, administrative acts, and personnel actions.

Objective: Describe the various common law immunities that applied to official government actors and governments.

Page number: 362 Level: Difficult Critical Thinking: 1. Discuss whether you agree or disagree with the public duty doctrine.

Answer: Student answers will vary.

Objective: Describe the arguments both in favor of and in opposition to immunity for governments and government officers.

Page number: 345 Level: Difficult 2. Discuss whether private security contractors working under contract for the National Security Agency (NSA) should be afforded governmental immunity for the tort of invasion of privacy. Explain your position.

Answer: Student answers will vary.

Objective: Apply the law of governmental liability and immunities to private actors when they are performing governmental functions.

Page number: 381 Level: Difficult MC: 1. c 2. b 3. c 4. b 5. d 6. a 7. a 8. a 9. c 10. b 11. a 12. c 239

13. d 14. b 15. c 16. a 17. c 18. d 19. a 20. b 21. a 22. b T/F: 1. b 2. a 3. b 4. b 5. a 6. b 7. b 8. a 9. a 10. b 11. a 12. b 13. b 14. a 15. b 16. a 17. b 18. a 19. a 20. a 21. a 22. b 23. a 24. b Fill in the Blank: 1. sovereign 2. compensation 3. qualified 4. absolute 5. Claims 6. color 7. immunity 8. cruel and unusual 240

9. regulatory 10. Eleventh Matching: 1. a 2. b 3. c 4. f 5. e 6. d 7. g 8. a 9. b 10. a 11. c 12. a Essay: 1. The public duty doctrine holds that governments and corresponding agencies owe duties to the public at large but not to individual citizens. “In short, this doctrine holds that a duty to all translates as a duty to no one.” The doctrine is designed to keep the courts from meddling in the affairs of the legislative and executive branches of the government. Only when a special duty to the plaintiff exists will the duty to a specific individual be found and liability accrue.

2. The First Amendment prohibits the government from abridging free speech. In determining whether speech by a public employee is protected, the question is whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the government has broader discretion to restrict the speech, similar to a private employer. If the individual spoke as a citizen on an issue of public concern, the government can restrict speech only to the extent necessary to ensure the efficient and effective operation of the employer. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that a district attorney’s memorandum outlining his concerns with a search warrant did not constitute protected speech, and thus his termination was not an abridgement of free speech, because the memorandum was written in the course of his official job responsibilities.

3. There are differences between Bivens actions and § 1983 actions. One important difference is that individuals acting under color of federal law (as opposed to state law) can be sued in a Bivens suit. This is not true of § 1983 actions. However, Congress may explicitly (Hui) or implicitly (Vance) grant federal employees immunity against Bivens actions.

4. The distinction between what is a “discretionary” and what is a “ministerial” function is not always clear. An act is discretionary if it involves making a choice from a variety of options. Discretionary acts involve judgment, planning, and policy decisions. The greater the policy considerations, the more likely the decision will enjoy immunity. If the law requires the performance of a specific act or applies specific standards to the performance of an act, then the act is likely ministerial, or, as some courts characterize it, 241

operational. Similarly, once a discretionary decision to act is made, the remaining acts employed to carry out the decision are usually deemed ministerial.

5. If the function performed has historically been exclusively public, the likelihood of applying § 1983 is high. In West v. Atkins, 487 U.S. 42 (1988), the U.S. Supreme Court held that a physician who worked part-time for a state correctional institution treating inmates was found to be performing a state function. As such, he was a state actor that could be sued under § 1983.

6. Law enforcement officials are entitled to absolute immunity for enforcing court orders and testifying in court. Law enforcement officials are entitled to qualified immunity for investigations, warrantless searches and arrests, administrative acts, and personnel actions.

Critical Thinking: 1. Student answers will vary.

2. Student answers will vary.

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