Basic Hypo

28 April 2003

Consider the two statutory exerpts from the Patriot Act, links to which adjoin the link to this hypothetical.

Recall the role-play/hypothetical on the first day of class, in which Mr. Liebl dragged Mr. Rohrer out of the classroom, accusing him of Al Queda connections. Suppose further that the Attorney General decided to detail Mr. Rohrer under the Patriot Act.

1. Could Mr. Rohrer obtain review of this decision under the Administrative Procedure Act, in a common-law false imprisonment action? If you conclude that the answer is "no," evaluate whether such foreclosure of judicial review is constitutional.

2. Can Mr. Liebl obtain a reward under the Patriot Act. Can a decision to deny him a reward be judicially reviewed? If you conclude that the answer is "no," if foreclosure of review constitutional?

3. Think about these questions in the context of what you know about delegation of judicial power. Has judicial power been delegated? Does it make a difference whether private or public rights are involved? Does it make a difference whether life, liberty or property are involved? In what range of circumstance can it be said that the essential attributes of judicial power have been reserved to an Article III court?