Testbank Chap1,2,3 Administrative Law (Missouri State University)

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lOMoARcPSD|784381 Testbank Chap1,2,3 Administrative Law (Missouri State University) Test Item File Chapter 1 Multiple Choice: 1. Administrative law focuses on the laws g... overning which part of the government? a. Congress b. Courts c. Administrative agencies d. President 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 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 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 Objective: Identify and distinguish the sources of administrative law in the United States. Page number: 3 Level: Intermediate 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 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 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. 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 Objective: Describe the nature and complexity of the administrative state at the federal, state, and local levels. Page number: 8 Level: Intermediate 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 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 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 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 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 b. Franklin D. Roosevelt c. Woodrow Wilson d. Harry S. Truman 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 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 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 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 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 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 rate- making 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 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 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 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 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 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 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 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 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. 143 a. True b. False 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 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 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 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 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. 144 a. True b. False 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 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 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 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 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. nabling 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. xecutive 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. 146 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 Column 2 1. Enabling Statute a. The law that sets forth the concepts of due process of law and equal protection of laws 2. Executive Order b. Law passed by Congress that establishes an agency and sets forth the responsibilities and authority of that agency 3. Constitution c. A comprehensive statute governing the procedures that agencies must follow when performing their functions 4. Administrative Procedure Act 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 Column 2 5. Social welfare agencies 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 6. Regulatory agencies b. Administrative agencies that provide special, nonredistributive services such as research 7. Public service agencies 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. 8. Executive agencies d. Administrative agencies over which the president exerts less control; often headed by a board or commission 9. Independent agencies 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. 148 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. 3. Discuss the differences between executive agencies and independent agencies. 4. Explain the factors that have led to the growth in the number of federal administrative agencies. 149 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 150 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. 152 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 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 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 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 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 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 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 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? 154 a. Article I b. Article II c. Article III d. Article IV 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. 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 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 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: 49 155 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 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 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. 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 156 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 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 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 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 157 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 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 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 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 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. 158 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 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 ten- year renewable terms. a. True b. False 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 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 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 159 7. The power to regulate general health and welfare is an exclusive state power. a. True b. False 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 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 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 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 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 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 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 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 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 161 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. ommerce 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 . ommittees 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 Column 2 1. Commerce Clause a. Provides that Congress may enact all laws necessary and proper to carry out Congress’s other enumerated powers 2. Necessary and Proper Clause b. States that Congress has the power to regulate interstate commerce, commerce with foreign nations, and commerce with Indian tribes 3. Supremacy Clause 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 Column 2 4. General Health and Welfare a. Exclusive federal power 5. Providing Education b. Exclusive state power 6. Borrowing Money c. Concurrent power 7. Taxation 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. 164 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? 2. Explain why the U.S. Supreme Court invalidated the legislative veto in INS v. Chadha. 3. Explain why the U.S. Supreme Court invalidated the line item veto in Clinton v. City of New York. 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 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 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. 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 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. 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 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 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 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 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. 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 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 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 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. 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. 171 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 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 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 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 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 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. 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. 173 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 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 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 Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process. Page number: 54 Level: Basic 174 True-False: 1. All agency actions, both formal and informal, are strictly governed by the agency’s enabling statute. a. True b. False 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 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 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 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 Objective: Explain why informal processes have been characterized as the lifeblood of the administrative process. Page number: 54 175 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 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 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 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 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: 58 176 Level: Intermediate 10. A declaratory order has the same effect as an order resulting from adjudications. a. True b. False 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 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 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 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 177 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 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 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 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 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: Basic 178 19. Formal rulemaking is known as the “lifeblood of the administrative process.” a. True b. False 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. iscretion 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. dvisory 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. eclaratory 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 179 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) . dministrative 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. Page number: 67 180 Level: Difficult 11. A declaratory order is a(n) equivalent of a judicial declaratory judgment. dministrative 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 Column 2 1. Arbitration a. Process of having a neutral third party intervene in a dispute in an attempt to assist the parties in reaching a resolution 2. Ultra Vires b. Administrative equivalent of a judicial declaratory judgment 3. Advisory Opinion 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 4. Mediation d. Process of having the parties to a dispute present their evidence and arguments to a neutral third party for decision 5. Declaratory Order 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. Page number: 57 Level: Difficult 2. Discuss the three different forms of commonly exercised discretion by agency officials. 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? 182 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? 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. n 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 183 1. 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? 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. [Show More]

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