Essay: Administrative Law &amp Due Process

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[. . .] The revolution that has occurred with regard to interpretation of due process cases has become even more complex with the burgeoning outsourcing of government functions to private entities. The considerations are of both authority and responsibility since the source of any deprivation of constitutional rights must be determined, and as in American Manufacturers Mutual Insurance Company v. Sullivan (1999), issues such as extent and aggravation of harm resulting from the privatization must be considered.

b. Access to agency information is necessary to ensure that the appropriate implementation of policy. In Shapiro v. United States (1948), the Supreme Court upheld the policy that regulated agencies must retain and release upon request to government regulators those records necessary for policy enforcement and protection of the public. Noncompliance with governmental requests for agency records can result in the issuance of a subpoena -- a process which can be challenged before the fact. In the Federal Trade Commission v. American Tobacco (1924), the Court narrowed the reach of the subpoena by requiring it to have a substantial foundation. Twenty years later, in Oklahoma Press Publishing Co. v. Walling (1946), the Court determined that congressional intent for an agency to search for particular records must have been previously established. The Court has been of two minds with regard to physical inspection of agency premises with the intention to gather information or have access to records. When an agency is a pervasively regulated business, as with the firearm business in United States v. Biswell (1972) and the Catering Corporation v. United States (1970), the Court has found that no warrant is required as inspections and closer supervision have been the standard operating procedure. However, when applying civic codes, such as public health standards as in Camara v. Municipal Court (1967) and the municipal fire code as in See v. Seattle, regulation imposed on private establishments as part of a periodic review is not comparable to regulation that when applied to agencies results in ongoing inspection. The weight of the public interest in balance with the private interest has also been a factor in the Court's decision, as seen in Wyman v. James (1971) regarding AFDC visits to ascertain the need for benefits. In Marshall v. Barlow's Incorporated (1978), the Court established that probable cause of legislative entitlement to must be demonstrated for nonconsensual OSHA inspections. In Dow Chemical v. U.S. (1986), the Court broadened the ability of agencies to conduct physical inspections, by allowing the Environmental Protection Agency (EPA) to use aerial photos as a form of warrantless inspection, asserting that the expectation of privacy in an open field was necessarily limited. The Court's efforts to balance individual privacy with protection of the public interest are evident in National Treasury Employees Union v. Van Raab (1989). The Court found that the substantial interests of the government with regard to stopping drug trafficking must cause employees to have a lesser expectation with regard to their privacy as it applies to the execution of their jobs.

In concert with the tasks of obtaining relevant information for purposes of agency regulation is the dissemination of information. A threat to competition is a consideration in the dissemination of information as illustrated by the Court's decision in National Parks and Conservation Association v. Morton (1974) that a monopoly cannot demonstrate competitive harm. The 5th exemption under the Freedom of Information Act (FOIA) was employed in NLRB v. Sears Roebuck and Co. (1975), where Sears wanted documents that stating that no further action would be taken by National Labor Relations Board (NLRB). The documents categorically fell under Attorney-client privilege, but because a decision not to continue had already been made by the National Labor Relations Board, and release of the documents would not impact the decision-making process, the Court determined that the information should be released. In the U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989), the Court determined that criminal records should not be released to the press since the Freedom of Information Act is geared toward agency action, and the press was interested in the information that pertained to the criminal and not information that had to do with agency action.

In each of these illustrative cases, the Court has deliberated so as to… [END OF PREVIEW]

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Administrative Law &amp Due Process.  (2012, March 7).  Retrieved August 18, 2019, from https://www.essaytown.com/subjects/paper/administrative-law-due-process/4928520

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"Administrative Law &amp Due Process."  Essaytown.com.  March 7, 2012.  Accessed August 18, 2019.
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