Learning by DoingLa’Quosha MackDr. Angela SmithConstitutional and AdministrativeLawJanuary 13, 2018     AbstractIn this paper, the learner will “learn by doing” usingavailable resources from the library and internet to provide a full citationfor previously provided questions. This assignment is to examine the learner’sability to clearly understand how to interpret the language of the U.

S.Constitution and the U.S.

legal system in order to explain the principles and processof constitutional, regulatory, and administrative laws at the federal and statelevels, use the “case” approach to the U.S. legal system for researching cases,laws, and other legal communications using technology and information resources,assess legal decisions related to the administration of public goods, and to usetechnology and information resources to research issues in constitution andadministrative law. According to the course description of this class, PAD 525 –Constitutional and Administrative Law, we will examine U.S. publicadministration within the U.

S. Constitution and the U.S.

legal system as thefoundation for all law in the public, nonprofit, and private sectors in aconstitutional, regulatory, and administrative law framework.       1.    Your state’s statute thatdefines what is considered to be a public record that must be made available tothe public upon request.The Virginia Freedom of Information Act (VFOIA) is the statelaw that governs access to citizens of Virginia, and representatives of themedia, to public records and to meetings of public bodies, as defined in theact. “§ 2.2-3704Public records to be open to inspection; procedure for requesting records andresponding to request; charges; transfer of records for storage, etc.” (Code ofVirginia (2018).

The Virginia Freedom of Information Act affords that, withsome specific limitations and exceptions § 2.2-3705.1-§ 2.2-3705.8,all meetings of public bodies shall be open to the public and all publicrecords open for public inspection. All public meetings and record are recognizedas open unless limitations are properly petitioned.

2.    The pre-World War I opinion bythe U.S. Supreme Court holding, on re-argument, that a federal income tax wasunconstitutional.On May 21, 1895, the U.S. Supreme Court ruled that a direct tax onpersonal incomewas unconstitutional as a result of the case of Pollock v. Farmer’s Loan andTrust Company.

The U.S. supreme Court decided that the income tax was unconstitutional becauseof direct taxes implementation by congress and it was not apportioned among thestates in conformity with the Constitution. It is originated from the fact thatin 1894 Congress implemented a flat rate Federalincome tax, which was ruled unconstitutional the following year by the U.S. SupremeCourt because it was a direct tax not apportioned according to the populationof eachstate. The 16th amendment, ratified in 1913, removed this objection by allowingthe Federalgovernment to tax the income of individuals without regard to the population of eachState. (Terrell, E.

2004)3.    The federal statute authorizingthe U.S.

Secretary of Transportation to make payments to states for the valueof materials stockpiled near federal highway construction projects in conformitywith the project specifications.In Federal-Aid Highways. 23 U.S.C. § 121- Payment to States for construction, (a) In General. – The Secretary, from time to time as thework progresses, may make payments to aState for costs of construction incurred by the State on a project. Such payments may alsobe made for the value of the materials – (1) that have been stockpiled in the vicinity of the construction in conformity toplans and specifications for the projects;and (2) that are not in the vicinity of the construction if the Secretarydetermines that because of requiredfabrication at an off-site location the material cannot be stockpiled in such vicinity.

(b) Project Agreement. – Nopayment shall be made under this chapterexcept for a project covered by a project agreement. After completion of the projectin accordance with the project agreement, a State shall be entitled to paymentout of the appropriate sums apportioned orallocated to the State of the unpaid balance of the Federal share payable for such project. (c) Such paymentsshall be made to such official or officialsor depository as may be designated by the State transportation department andauthorized under the laws of the State to receivepublic funds of the State.4.    The federal joint regulation ofthe U.

S. Fish & Wildlife Service, Department of the Interior, NationalOceanic and Atmospheric Administration, and Department of Commerce, identifyingthe factors for listing, delisting, or reclassifying endangered species.Code of Federal Regulations, Title 50 – Wildlife andFisheries, Chapter IV –Joint regulations (US Fish and wildlife service, Departmentof the Interior and NationalMarine Fisheries service, National Oceanic and atmosphericadministration, Departmentof Commerce); Endangered species committee regulations –Subchapter A-Part 424:LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATINGCRITICAL HABITAT, Section 424.11 – Factors for listing,delisting, or reclassifyingspecies: (a) Any species or taxonomic group of species(e.

g., genus, subgenus) as definedin §424.02(k) is eligible for listing under the Act.

A taxonof higher rank than species maybe listed only if all included species are individuallyfound to be endangered orthreatened. In determining whether a particular taxon orpopulation is a species for thepurposes of the Act, the Secretary shall rely on standardtaxonomic distinctions and thebiological expertise of the Department and the scientificcommunity concerning therelevant taxonomic group. (b) The Secretary shall make anydetermination required byparagraphs (c) and (d) of this section solely on the basisof the best available scientific and commercial information regarding aspecies’ status, without reference to possibleeconomic or other impacts of such determination. (c) Aspecies shall be listed or reclassified if the Secretary determines, on thebasis of the best scientific and commercial data available after conducting areview of the species’ status, that the species is endangered or threatenedbecause of any one or a combination of the following factors: (1) The presentor threatened destruction,modification, or curtailment of its habitat or range; (2)Over utilization for commercial,recreational, scientific, or educational purposes; (3)Disease or predation; (4) Theinadequacy of existing regulatory mechanisms; or (5) Othernatural or manmade factorsaffecting its continued existence. (d) The factorsconsidered in delisting a species are those in paragraph (c) of this section asthey relate to the definitions of endangered or threatened species. Suchremoval must be supported by the best scientific and commercial data availableto the Secretary after conducting a review of the status of the species. Aspecies may be delisted only ifsuch data substantiate that it is neither endangered northreatened for one or more of the following reasons:(1) Extinction.

(2) Recovery.(3) Original data for classification in error. Subsequent investigations mayshow that the best scientific or commercial data available when the species waslisted, or the interpretation of such data, were in error. (e) The fact that aspecies of fish, wildlife, or plant is protected by the Convention onInternational Trade in Endangered Species of Wild Fauna and Flora (see part 23of this title 50) or a similar international agreement on such species, or hasbeen identified as requiring protection from unrestricted commerce by any foreignnation, or to be in danger of extinction or likely to become so within theforeseeable future by any State agency or by any agency of a foreign nationthat is responsible for the conservation of  fish,  wildlife, or plants, may constitute evidence that the  species is endangered or threatened.

The weight givensuch evidence will vary depending on the international agreement in question,the criteria pursuant to which the  species is eligible for protection under suchauthorities, and the degree of protection afforded the  species. The Secretary shall give consideration to any  species protected under such an international agreement,or by any State or foreign nation, to determine whether the  species is endangered or threatened. (f) TheSecretary shall take into account, in making determinations under paragraph (c)or (d) of this section, those efforts, if any, being made by any State orforeign nation, or any political subdivision of a State or foreign nation, toprotect such species, whether by predator control, protection of habitatand food supply, or other conservation practices, within any area under itsjurisdiction, or on the high seas.5.    Your state’s administrativeregulations specifying the licensure process for real estate agents.The Virginia Department of Professional and OccupationalRegulation (DPOR) regulates over 30 occupations and professions through 19different boards. The Real Estate Board was established in 1924 and currentlylicenses over 55,000 individuals and businesses within the Commonwealth ofVirginia. The requirements for a real estate salesperson license in Virginiainclude being at least 18 years of age and having successfully completed 60hours of approved real estate courses, plus passing the State and Nationalportions of the salesperson examination.

 All real estate agent applicants need to apply for their license withinone year of passing the examinations, or re-examination will be required.6.    The local ordinance in yourmunicipality governing noise.Most Virginia cities, towns, and counties have some sort ofnoise ordinance. In most cases there are subjective ordinances with languagethat can be hard to interpret. Some have adopted ordinances withspecified sound level limits. Unfortunately, most of these are verypoorly written, often with many different problems.

 Because noise at certain levels can be harmfulto the health and welfare of citizens Henrico County prohibits excessive andannoying noise. The County’s Noise Ordinance (Chapter 10, Division 8, Sec.10-68.) regulates specific times that certain noise sources can be operated anddefines noise limits.  The County’s noiseordinance states that no deliveries may be made (that is operating loading orunloading any vehicle including but not limited to trucks or the opening anddestruction of bales boxes crates and containers) in the outdoors in zonesother than industrial within one hundred (100) yards of a lawfully occupied dwellingbetween the hours of 11 p.m. and 7 a.m.

7.    The most recent opinion of yourstate’s highest appeals court describing the extent to which the stateconstitution requires that the power of eminent domain be exercised only for apublic use.History, responding to the backlash against the SupremeCourt decision, KELO v. City of New London, permitting the government to usethe power of eminent domain for economic development, Virginia passed a law inhibitingthat power. The State of Virginia went even further and passed a stateconstitutional amendment that requires the government to pay landowners andbusiness owners not only for the value of condemned property, but for lostbenefits and lost access to their property.

Opponents of the amendment believethe amendment is an overreaction to Kelo and fear that the new law will open upa Pandora’s Box of litigation that leaves taxpayers footing the bill for claimsof “lost profits” arising from street widening to street closuresduring parades and festivals. Proponents of the law agree that “lostprofits and lost access” could end up making roads and other projects moreexpensive to build.8.    A recent federal trial courtdecision in your federal district describing the standard for summary judgmentin federal court.The United States District Court for the Eastern District ofVirginia seems to have found a way to move cases forward relatively quicklyusing the existing Federal Rules of Civil Procedure and its own local rules,standing orders and practices.  Accordingto the Eastern District of Virginia Pretrial Procedures website, “No motion forsummary judgment shall be considered unless it is filed and set for hearing orsubmitted on briefs within a reasonable time before the date of trial, thuspermitting a reasonable time for the Court to hear arguments and consider themerits after completion of the normal Briefing schedule specified in LocalCivil Rule 7(F)(1) for motions” (Kieve 2010).

9.    A law-review article publishedwithin the past five (5) years about libel law and political campaignadvertisements.Sullivan actual malice standard for defamation against apublic official in the age of the Internet campaign. First, it providesrecent examples of misleading political advertisements that illustrate theneed to provide politicians with a timely remedy. Next, it discusses thehistorical background on defamation as it pertains to public officials andsummarizes the regulations of Internet speech that relate to defamation ofa public official (White, 2009).

It then examines Congress’ recent approachto the regulation of false advertising through campaign finance reforms thatindirectly attempt to regulate potentially defamatory campaign ads beforedemonstrating that the actual malice standard should be retained because:1) it can be adapted to modern times, 2) it does not violate the rulingsof the Court regarding Internet speech or campaign finance, and 3) it adequatelyprotects political speech (White, 2009). Finally, the article proposed thecreation of a federal statute that retains the actual spiteful standardand required a mandatory retraction to ensure political speech is not cooled,to protect media defendants from lawsuits, and to give politicians aremedy that will limit damage to their reputation and deter future falseads.   Reference Code of Virginia (2018).

Title 2.2 Administration ofGovernment. Retrieved January 13, 2018, fromhttps://law.

lis.virginia.gov/vacode/title2.2/chapter37/ Terrell, E. (2004, February). History of the US Income Tax.

Retrieved January 13, 2018, fromhttp://www.loc.gov/rr/business/hottopic/irs_history.

html Harvard Law Review. (2009). First Circuit Applies Libel Lawthat Does Not Allow Truth as a Defense in Cases of “Actual Malice.

“Retrieved on January 13, 2018 23 U.S. Code § 121 – Payment to States for construction.(n.

d.). Retrieved January 13, 2018, fromhttps://www.law.cornell.edu/uscode/text/23/121 Factors for listing, delisting, or reclassifying species.(n.d.

). Retrieved January 13, 2018, fromhttps://www.law.cornell.edu/cfr/text/50/424.

11 Title 18. Professional And Occupational Licensing. (2015,August 24). Retrieved January 13, 2018, from http://register.

dls.virginia.gov/details.aspx?id=5119 THE CODE OF THE COUNTY OF HENRICO, VIRGINIA OF 2010 PDF.(n.d.).

 https://henrico.us/pdfs/countyattorney/HenricoCountyCode.pdfUPDATED 1/1/18 United States Supreme Court KELO et al. v.

CITY OF NEWLONDON et al., (2005). (n.d.). Retrieved January 13, 2018, fromhttp://caselaw.findlaw.

com/us-supreme-court/545/469.html Kieve, Loren. (2010). Eastern District of Virginia PretrialProcedures. Retrieved on January 13, 2018; from: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/Loren%20Kieve,%20Eastern%20District%20of%20VA%20Pretrial%20Procedures.pdf White, C.

B. (2009). The straight talk express: yes we canhave a false political advertising statute. www.lawtechjournal.com, Vol13(1).

  

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