As a legal assistant, I evaluate fact scenarios, conduct research, analyze, and apply relevant law to facts.

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Question:

As a legal assistant, I evaluate fact scenarios, conduct research, analyze, and apply relevant law to facts. My immediate supervisor is Lorence Holland, Esquire, a senior attorney at the BORS in the Office of the General Counsel. As part of my legal assistant responsibilities, I will make recommendations to resolve issues and problems related to administrative law and the BORS agency. I will address whether actions by the agency comply with the United States Constitution, Administrative Procedure Act, Freedom of Information Act, and the Privacy Act.

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BACKGROUND FACTS: The United States Congress recently enacted a law that legalizes and authorizes the cloning of humans, the Human Cloning Act ("HCA").

The HCA is a part of Title 42 of the United States Code. The HCA includes guidelines for those involved in cloning science, research, technology, and commerce.

In the HCA, Congress, using its enabling legislation authority, created a new Federal administrative agency - the Board of Regenerative Science ("BORS"). The primary function of the BORS is to regulate the human cloning industry, enforce the HCA guidelines, and sanction any violations.

The HCA includes the following provisions:

PREAMBLE TO THE HUMAN CLONING ACT

While the Federal Government legalizes human cloning with the following Act, it does so with the understanding that the benefit of human cloning is to treat and cure illnesses and diseases. This Act, however, strictly prohibits human cloning for profit and compensation. The Board of Regenerative Science, therefore, may use its full and complete enforcement powers created under this Act to swiftly and effectively eradicate human cloning for profit and compensation.

ESTABLISHMENT OF BOARD OF REGENERATIVE SCIENCE

Section 100: There is established an independent agency of the Federal Government to be known as the Board of Regenerative Science ("BORS").

Section 101: The BORS is responsible for and has the authority to administer, interpret, define, and enforce the provisions of this Act.

Section 102:The BORS may engage in any action for which it has authority, but it may engage in this activity only after considering information presented at a hearing.

PERMISSIBLE AND PROHIBITED CLONING ACTIVITIES

Section 200:Hospitals,educational institutions, and scientific development companies may engage in human cloning for the purposes of research and development of human drugs and for the treatment of human diseases and illnesses.

Section 201:Hospitals, educational institutions, and scientific development companies may enter into commercial transactions with each other to buy and sell instruments, techniques, and research procedures on human cloning.

Section 202:It shall be unlawful for hospitals,educational institutions, and scientific development companies to accept compensation of any kind from an individual or on behalf of an individual solely for the reproduction of the individual.

Section 203:It shall be unlawful for any individual or entity (other than the hospitals,educational institutions, and scientific development companies referenced in section 200 of this Act) to engage in human cloning.

RECORDKEEPING AND REPORTING

Section 300:Any entities engaged in human cloning must keep records (in a content and in a format prescribed by the BORS) on each cloning for a period not to exceed three years.

Section 301:Any entities engaged in human cloning must report its cloning activity to the BORS (on forms prescribed by the BORS) on an annual basis.

ENFORCEMENT AND INVESTIGATIONS

Section 400:Any individual may file a complaint against an entity for violating any section of this Act. The complaint must be signed by the complainant and notarized.

Section 401:Once a complaint is filed, the BORS must conduct a preliminary inquiry into the allegations in the complaint. The BORS must complete the preliminary inquiry within five business days.

Section 402: If, after conducting the preliminary inquiry, the BORS finds that there is reason to believe that this Act has been violated, the BORS must notify the respondent(s) of its preliminary reason-to-believe finding. The BORS must notify the respondent(s) by sending a copy of the complaint and any additional materials that served as a basis for the preliminary reason-to-believe finding to the respondent within 15 days after the complaint is filed.

Section 403:If, after conducting the preliminary inquiry, the BORS finds that there is reason to believe that this Act has been violated, the BORS may seize any real and personal property used in the cloning process. Any property seized under this provision may be:

Used by the BORS in reaching a final determination on whether an entity or a person violated this Act, and
Subject to a civil forfeiture proceeding

Section 404:If, after conducting a preliminary inquiry, the BORS finds that there is no reason to believe that this Act has been violated, the BORS must dismiss the complaint. The BORS must notify the complainant and the respondent of the dismissal.

Section 405:The respondent and any party made a part of the proceedingsunder this Act may engage in limited discovery prior to the BORS' final determination as to whether there is violation of this Act.

Section 406:The discovery authorized in Section 405 must be conducted pursuant to the Federal Rules of Civil Procedure.

ADJUDICATIONS

Section 500:Before the BORS can impose a fine against an individual or entity for violating the law, it must adjudicate on the record after the opportunity for a BORS hearing.

Section 501:If the BORS adjudicates that an individual or entity has violated this Act, the BORS may impose a fine not to exceed $100,000, and the BORS may seize any instruments or equipment used in the cloning process.

CRIMINAL PENALTIES

Section 600:The United States Department of Justice shall have jurisdiction over the criminal enforcement of this Act.

Section 601:Any person that knowingly and willfully violates this Act shall be fined no more than $500,000, or imprisoned not more than ten years, or both.

Additional background information:

Again, Senator Castor has conferred with Attorney Holland and others in the Office of General Counsel about recent developments in Congress related to the BORS and whether Congress can lawfully amend the HCA. Hollands wants me to research for the office memorandum regarding the constitutionality of a possible congressional amendment to the HCA.

Facts: Congress is considering an amendment to the Human Cloning Act that would allow the BORS to:

Regulate all interstate commerce, and
Hear all cases appealed from the Federal district courts that involve issues related to cloning.

Senator Caster questions whether this amendment to the HCA is constitutional, and she has sought an opinion from the BORS.

Questions:

(1) whether authorizing the BORS to regulate all interstate commerce violates Article I, Section 8 of the United States Constitution; and

(2) whether authorizing the BORS to hear all cases appealed from the Federal district courts that involve issues related to cloning violates Article III of the United States Constitution.