Administrative Law Discussion Questions
Provide single-spaced answers to the following questions:
1. The federal Sexual Offenders Registration and Notification Act (SORNA) imposes a further criminal penalty on anyone with a prior conviction for a sexual offense who fails to register as a sex offender and engages in interstate travel. SORNA took effect on July 27, 2006. On February 28, 2007, pursuant to discretion permitted by statute, the Attorney General issued a regulation applying SORNA retroactively to offenders convicted prior to its effective date. (The courts have held that retroactive application of sex offender registration and notification laws does not violate the ex post facto clause of the Constitution.) The Attorney General issued the regulation effective immediately, citing the “good cause” exceptions of the APA for bypassing the notice-and-comment provision and the “advance publication” provision (requiring publication of the regulation at least thirty days before it can go into effect). Sex Offender X, after informing his Ohio parole officer that he intended to move to Georgia, did so in the fall of 2006. In March 2007, X was convicted of having violated SORNA. Offender X challenged the conviction on the grounds that the Attorney General did not have good cause for bypassing the notice-and-comment and advance publication procedures and that the regulation allowing for his prosecution consequently was invalid. The Attorney General argued that it was necessary to have the regulation take effect immediately on announcement (1) to avoid any period of uncertainty as to the scope of the law, and (2) to prevent any additional sex offenses resulting from delay in imposing registration requirements that facilitate the location and apprehension of offenders. As to the first point, X argued that since regulation generally is intended to clarify the applicability of statutes, were the benefit of clarification sufficient to establish “good cause” then no agency would ever have to follow the notice-and-comment or advance publication provisions. As to the second point, since the statute permitted, but did not require retroactive effect, it necessitated a period of delay for the Attorney General to take that action, and therefore itself contemplated a period of delay, so “delayed effect,” implicit in the statute, also failed to constitute good cause for evading the normal requirements. And where criminal penalties are involved, the government has an especially strong responsibility to justify an approach that minimizes warnings to those affected. Will the court overturn X’s conviction for violating SORNA? Why or why not? (minimum 500 words) (2 references)
2. Section 320, added in 1975 to the New York State Welfare Code, created a special welfare grant to replace clothing or furniture lost in “fire, flood, or like catastrophe.” The legislative committee report with the bill explained that its purpose was to replace discretionary grants, which were often abused, and were demeaning for recipients to request. The State Department of Social Services interpreted the statute to exclude grants for losses resulting from human causes. Ms. Howard, a welfare recipient, a single parent, lives in a slum apartment that was burglarized, and lost about $2,000 of her clothing and furniture. Her application for a special grant under § 320 and her fair hearing appeal were rejected based on the manual. She appealed to the courts. What resulted? Why? (minimum 500 words) (2 references)
3. The Secretary of Defense has asked you, his assistant, whether he would be subject to constitutional criticism and litigation were he to authorize the use of a drone to assassinate a fairly high-profile American citizen engaged in leading terrorist activities against the United States. Why or why not? Clearly, he would prefer to avoid criticism and litigation. (minimum 500 words) (2 references)
Question Reference:
Administrative Law: The Sources and Limits of Government Agency Power By Daniel L. Feldman
