December 12

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and recent scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

Judicial Developments in Administrative Law

  1. A US District Court has struck down as unconstitutional President Donald Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States”, which prohibited federal funding to cities that did not cooperate with federal immigration officials. Among other things, the court rejected the federal government’s arguments that the claims against the Executive Order were not justiciable. The court also found that the Executive Order was void for vagueness under the Fifth Amendment, as the Executive Order did not make clear what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determine how to modify their conduct, if at all, to avoid the Executive Order’s penalties.
  2. The US Supreme Court has allowed enforcement of the Trump Administration’s revised travel ban, pending further court proceedings. Justices Ruth Bader Ginsburg and Sonia Sotomayor would have denied both applications for a stay.
  3. The Constitutional Court of South Africa has handed down a judgment in a case involving the State Information Technology Agency SOC Ltd (SITA). The issue was whether an organ of state can have its own decision reviewed and set aside under the Promotion of Administrative Justice Act (PAJA). The SITA had instituted proceedings outside of the 180-day period within which a review of administrative action must be brought under PAJA. The court found that the PAJA does not apply when an organ of state applies for the review of its own decision and that an organ of state seeking to review its own decision must do so under the common law.
  4. The UK Court of Appeal has ruled that the Investigatory Powers Tribunal (IPT), a special tribunal that examines the conduct of UK’s intelligence services, cannot be subject to judicial review. The court unanimously agreed that Parliament’s intention in establishing the IPT and laying down a framework of special procedural rules for it to follow was to establish a tribunal capable of considering claims and complaints against the intelligence services under closed conditions, with the complete assurance that there would not be disclosure of sensitive confidential information about their activities. The appellant, Privacy International, had earlier made a complaint to the IPT that it had been the subject of computer hacking by one of the intelligence services. The appellant questioned whether a lawful warrant had been issued. The IPT had ruled in favour of the government and there was no right of appeal. The appellant thus commenced judicial review proceedings instead.
  5. The UK Supreme Court has dismissed an appeal from the General Medical Council (GMC). The GMC had earlier applied to have a medical practitioner’s complaint to the Employment Tribunal struck out on the basis that the tribunal did not have jurisdiction to hear the case. The GMC had argued that a section of the Equality Act 2010 had precluded jurisdiction as judicial review afforded an appeal for the acts complained of. The Supreme Court found that the judicial review in this context is not in the nature of an appeal nor is it a remedy provided by reason of an enactment.

 

Recent Scholarship

  1. Wang, Daniel Wei Liang, From Wednesbury Unreasonableness to Accountability for Reasonableness The Cambridge Law Journal (2017) (argues that by applying a heightened scrutiny of the National Health Service’s rationing decisions, courts have forced health authorities to make better-informed decisions and take procedural justice more seriously to comply with, respond to and avoid judicial review)
  2. Sunstein, Cass R. and Vermeule, Adrian, The Morality of Administrative Law Harvard Law Review (2018, forthcoming) (argues that administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law; the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law)
  3. Grant, James A., Reason and Authority in Administrative Law The Cambridge Law Journal (2017) (notes the confusion caused by the distinction between “jurisdiction” and “merits of the case” in administrative law; argues that jurisdiction should be understood as the scope of legitimate authority and that the best theory is Joseph Raz’s service conception of authority)
  4. Thio, Li-Ann and Tan, Kelvin YL., Teaching Constitutional and Administrative Law at NUS: Mission, Materials and Methods (1957-2017) Singapore Journal of Legal Studies (2017) (discusses pedagogy and teaching philosophy for constitutional and administrative law at the National University of Singapore over the past 60 years; describes how teaching methods have shifted away from a black letter focus to seeking to impart both legal doctrine and theory as an aid to constructing propositional arguments)
  5. Duxbury, Neil, Judicial Disapproval as a constitutional technique International Journal of Constitutional Law (2017) (considers judicial disapproval as a form of non-binding review of the constitutionality of legislation and traces the history of the concept; he also offers observations on the differences between judicial disapproval and Marbury-style judicial review)
  6. Elliott, Mark, Judicial Power and the United Kingdom’s Changing Constitution University of Queensland Law Journal (2017) (the paper charts the growth of judicial power in the UK and considers how, given the particularities of the UK’s constitutional system, one might go about identifying the proper limits of judicial power)

Current Events

  1. Former national security advisor to Donald Trump, Michael Flynn, pleaded guilty to charges of making false statements to the FBI.
  2. A US district judge declared a mistrial in New Jersey Senator Bob Menendez’s federal corruption trial after questioning the 12 jurors. The jury had deliberated for several hours but was unable to reach a unanimous decision.
  3. In Australia, voters have voted that Australia’s marriage law should be changed to allow same-sex couples to marry. Although the results of the votes are not binding, Prime Minister Malcolm Turnbull has stated that changes to the law should be enacted before Christmas.
  4. In Singapore, the Attorney-General has initiated a contempt of court case against the nephew of Prime Minister Lee Hsien Loong, Mr Li Shengwu. He has been taken to court for a Facebook post that says that the “Singapore Government is very litigious and has a pliant court system”.
  5. The Hong Kong Court of Appeal has allowed Occupy activists’ appeal to proceed. The 13 pro-democracy activities have been given leave to appeal against their new jail terms.
  6. The Chief Ombudsman of New Zealand has released a report on his investigation into complaints by parents of a student at Ruru Specialist School about the use of seclusion. He found that while he found no evidence of unlawful actions, he has formed the opinion that the school acted unreasonably in using a particular room to manage the pupil’s behaviour.
  7. The Superior Court of Quebec heard arguments challenging legislation which forces people to remove face coverings when receiving or giving a public service. Among other things, the ban extends to attending class in Quebec’s public educational institutions or boarding public transit in the province.
  8. The UK Constitution Committee has published a follow-up report on judicial appointments, setting out reasons for why a lack of diversity in the judiciary is constitutionally significant. The report also recommends changes that should be made in creating a more diverse judiciary while maintaining the primacy of the merit principle.