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Gerald, Esq
Gerald, Esq, Lawyer
Category: Legal
Satisfied Customers: 4004
Experience:  30 years of experience
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I have a question about case citations addressing a criminal

Customer Question

I have a question about case citations addressing a criminal court's deference to administrative agency rulings. The hypothetical arises when an administrative agency action instantly re-defines an ongoing activity as a crime. The crime results in an arrest and charges well before there is any opportunity for administrative review of the propriety of the agency action.
Can you conceive of a motion in limine that would allow review of the agency action under a lax "arbitrary and capricious" standard and permit the use of this as an affirmative defense in a criminal trial? If so, does the jury get to decide a mixed question of law and fact? What is the standard for a criminal jury to apply if deciding if an agency action is "arbitrary and capricious"?
I'm not an attorney and have had no legal training but I read quite a bit.
Submitted: 1 year ago.
Category: Legal
Expert:  Gerald, Esq replied 1 year ago.


Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

I am afraid that there is a defect in your hypothetical. An administrative agency lacks the authority to classify an activity as criminal. Only the legislative body (Congress at the federal level, and the General Assembly at the State level) has the authority to classify conduct as criminal.

Administrative Agencies are creations of the legislative branch but fall under the enforcement arm of the Executive Branch. While an agency can promulgate a regulation for the purpose of implementing their enabling statute ( the law that created the agency) such regulations can not exceed the agencies statutory or Constitutional limitations.

An attempt by an agency to criminalize conduct would be invalid and unconstitutional. You would never get to the 'arbitrary and capricious" standard because the attempt would be ultra vires. The review of the agency action would not be by jury, because the authority of the agency is strictly a question of law and Constitutional authority.

If faced with such a rogue action by an agency the remedy would be to seek an injunction against the agency.

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