Week 4 Assignment - Constitutional Law vs. Administrative Law

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Running Head: Constitutional Law vs. Administrative Law Constitutional Law vs. Administrative Law Shenna Clark PAD 525 Constitutional and Admin Law October 18, 2022

Constitutional Law vs. Administrative Law 2 Constitutional and Administration Law Intersection Constitutional law deals with the interpretation and application of the United States Constitution (Constitutional Law, n.d.) . Constitutional and administrative law are similar because administrative law in theory is supposed to follow the constitution. The constitution is the highest law we have in the United States. The federal government must follow the constitution. The constitution is applied to every single individual in the United States. Administrative law is applied to federal agencies. Each federal agency has its own laws. These laws, regulations, and policies allow federal agencies to do their jobs. The constitution should be the umbrella for every administrative law that is set up. Moreover, constitutional, and administrative Law also intersect with due process and equal protection. Due process requires that the government treat all persons with a minimum amount of fairness when taking life, liberty, or property (Hall, 2019, p. 76) . According to Hall, in administrative law, the due process affects more than just rulemaking. Administrative officials make decisions daily that affect the lives of many people. These decisions are often not easily characterized as either rulemaking or adjudication. Regardless, such actions may have to comply with the fairness requirements imposed by the Due Process Clauses (pg. 78). In addition, constitutional law does indeed play a critical part in how administrative agencies make decisions, the substance of those decisions, and judicial review of agency decision-making (Metzger) . If we were to look at federal agencies and the laws, policies, and regulations they have in place, we could see how they are aligned with constitutional law or aimed not to violate constitutional rights. “Constitutional law’s manifestations in administrative contexts can usefully be divided into three categories. First, ordinary administrative law provides mechanisms that are either constitutionally mandated or that avoid constitutional violations.

Constitutional Law vs. Administrative Law 3 Second, constitutional norms and concerns underlie and are evident in several administrative law doctrines. Third, both courts and the political branches sometimes use doctrinal mechanisms and substantive requirements to encourage agencies to take constitutional concerns seriously, with the result that constitutional concerns influence the shape of agency decision- making” (Metzger) . Administrative laws should be constitutionally sound and don’t violate individuals’ constitutional rights. Constitutional and Administration Law Divergence On the contrary, constitutional and administrative laws diverge in how undemocratic administrative law is. Federal agencies work independently of each other. When the federal government passes a law down, each agency will interpret and implement the law differently. Administrative laws are set up specifically for each agency. Each federal agency creates its own laws. Federal agencies represent much of our government. Officials in these federal agencies are not elected officials, they are appointed. US citizens do not get to vote and select whom they would like to represent in these federal agencies. One specific example of how constitutional and administrative laws diverge is law may be consistent with equal protection, but an agency’s enforcement of that law may be violative of equal protection. Furthermore, there is more secrecy in administrative law than in constitutional law. Federal agencies have less oversight and are informal. Agencies are given too much discretion and are not adequately checked. One harm of excessive and unchecked discretion can lead to arbitrary decision-making (Hall, 2019) . When an agency makes regulations and decides on conflicts dealing with their area of concern, that can be challenging. When someone attempts to challenge a decision or makes claims of abuse of discretion, these are difficult to prove (Hall, 2019) . Most people do not have any say in administrative law or the laws and policies that are created. With

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Constitutional Law vs. Administrative Law 4 administrative law being considered the fourth branch of government, it does not include input from citizens. In addition, the supreme court is there to make sure that states do not violate a person’s constitutional rights. The Supreme Court has the authority to conclusively decide questions of constitutional law through its power of judicial review (Constitutional Law, n.d.) . They cannot change the constitution, only make sure that it is being applied correctly. Administrative law does not have as much oversight as constitutional law. With constitutional law, the constitution follows a system of enumerated powers and separation of powers between three branches of the federal government (Constitutional Law, n.d.) . Impact of the Divergence I believe the impact of the divergence in these laws really depends on where you are located. The impact is tremendously different depending on what state an individual lives in. What we are seeing now is how many states are operating independently of the federal government. For someone working in the field of public administration, the impact can be extremely different for someone living in Alabama, Mississippi, Florida, or Texas compared to an individual living in California, Washington, or New York. Depending on how republican, how faith-based, or racially divided a state is, will have an impact on how states and these agencies carry out or enforce these different laws. For example, a social worker in a state with strict or anti-abortion laws will have a diverse experience than a social worker working a state that does not have strict abortion laws. The way a state chooses to enforce federal agencies’ laws or constitutional laws will vary from state to state. Some states are so far left like Florida, that promote racism, and sexism, against

Constitutional Law vs. Administrative Law 5 women’s rights to choose, and bills that restrict education. These states make it harder for people working in public administration. There are a lot of negative blowbacks that these individuals have to deal with as a result of their state government. Another example is how each state handled the COVID-19 pandemic. Each state handled the pandemic differently when it came to masks, school restrictions, closing of businesses, public gatherings, and so forth. When the federal government passed laws or put restrictions into place, it was up to each state to implement those laws or policies. The federal government has the final say and each state can accept it or challenge it. We are seeing more and more states push back against the federal government and that has a large impact on people working in public administration.

Constitutional Law vs. Administrative Law 6 References Administrative Law . (n.d.). Retrieved from Cornell Law School: https://www.law.cornell.edu/wex/administrative_law Constitutional Law . (n.d.). Retrieved from Cornell Law School: https://www.law.cornell.edu/wex/constitutional_law Hall, D. E. (2019). Adminstrative Law: Bureaucracy in a Democracy (7th Edition). Pearson Education (US). https://strayer.vitalsource.com/books/9780135208717. Metzger, G. E. (n.d.). ORDINARY ADMINISTRATIVE LAW AS CONSTITUTIONAL. Retrieved from Columbia Law School: https://web.law.columbia.edu/sites/default/files/microsites/constitutional-governance/ files/Ordinary-Administrative-Law-as-Constitutional-Common-Law.pdf

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Week 4 Assignment - Constitutional Law vs. Administrative Law

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