administrative law - molot - fall 2003_3

8/20/2019 Administrative Law - Molot - Fall 2003_3

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Administrative Law Exam Outline1

I. When someone is considering challenging an agency action, how do they do that?, Whatarguments can they make? ! "#$ % &'()a. Constitutional arguments

i. *)+) argue that it is a $onstitutional inringement1. $ourts will say agency can-t do it +c it-s unconstitutional*. * ma/or constitutional issues

a. #tructural see Administrative 0rocedure +elow)+. Individual rights see Admin. 0rocedure$onstitutional ue 0rocess)

+. Substantive argumentsi. *)c) argue that it is in violation or in excess o a statute

1. 2eyond the agency-s legal authority*. Looking at the A0A, is seems that the courts will take over the /o+ o deciding

3uestions such as theseii. *)a) argue that the agency is acting ar+itrarily and ca4riciously

1. It is +ad 4olicy 5 its ar+itrary 6 ca4ricious, or a+use o discretion*. Who should decide 3uestions such as these? A court or an agency? Is it right

or the courts to decide issues o am+iguous agency decisions? 7ow muchdiscretion should the courts give to the agencies?

8. Agency looks at law, and then a44lies the acts ho4eully they-ll have anade3uate record to determine how to a44ly the acts so it isn-t am+iguous)

iii. *)e) argue that the acts were not correctly a44lied to the law1. 9he agency action was not su44orted +y su+stantial evidence

c. Procedural argumentsi. *)d) argue that the 4ro4er 4rocedures were not ollowed

1. Executive 5 not many 4rocedures here*. Legislative 5 notice 6 comment rule:making8. Judicial 5 trying to enorce an existing rule, various degrees o ormality in

ad/udication

THE CONSTITUTIONAL FRAE!OR" FOR A#INISTRATI$E A%ENCIES

I& Agencies E'ercising Legislative Aut(orit) #elegation

a. Current La*i. $ongress may delegate legislative 4ower to agencies, +ut they must 4rovide an

;intelligi+le 4rinci4le< in the statute or the agency to ollow1. Okay intelligible principles =a. ;4u+lic interest<+. intelligi+le 4rinci4le does not have to state determinate criterion even

in swee4ing regulatory schemes*. NOT okay intelligible principles =

a. statutes wliterally no guidance or the exercise o discretion 5leaving 0re> wout a standard or rule to ollow see PanamaRefining; !"#; pg $! first time %and one of t&e last'( an act of

• Extent to which agency action may +e struck down +y the court asunconstitutional

• Issues o agencies trying to take too much rom $ongress or the courts Aissues o $ongress taking too much rom the agencies

• Whether the statutedelegates legislative4ower is a 3uestion orthe courts

• iscretion will alwaysa44ear in /udicial 6executive actions, +utthat doesn-t mean it isreally legislative action

• Agencies have the 4ower to make rules wthe orce o law

• Agencies have the 4ower to render +inding ad/udications o individual rights under statutes

• Agencies have control relationshi4s w$ongress, the 0re>, and the @udiciary 9he 4recise+oundaries o those relationshi4s are legally indeterminate and 4olitically contested


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Administrative Law Exam Outline*

)ongress *as struck do*n for overly broad delegation of legislative po*er )

+. ;regulation o the economy to stimulate it +y assuring aircom4etition-< 5 ree wheeling inormality see +c&ec&ter Poultry ;!"#; pg $! %delegation struck do*n for being unconstitutionallybroad()

ii. Other Im4ortant $ases1. ,&itman v- .merican Trucking .ssociation; /00; pg 12

a. E0A-s decision to set air 3uality standard u4held as a lawuldelegation o legislative 4ower to agency

+. Intelligi+le 4rinci4le o +eneiting 4u+lic health does O9 allow orcost +eneit analysis

i. Issue o statutory inter4retation 5 $ongress did not ex4licitlyallow or cost +eneit analysis, so it should O9 +e im4liedas allowing or it

*. T&e 3en4ene )ase; !20; pg #2 4lurality decision)a. O#7A rule regulating worker-s ex4osure to +en>ene struck down or

reasons O97EB than im4ro4er delegationi. 7owever, ;re3uisite level< 6 ;to the extent easi+le< likely

re/ected as suicient intelligi+le 4rinci4les in Behn3uist-s

4lurality o4inion+. In .merican Trucking , the court determined that the statute excluded

cost +eneit this is okay constitutionally), 3en4ene the court said thatthe statute didn-t say either way am+iguous 5 $ongress 4unted)this is O9 okay constitutionally) 5 Behn3uist

+. T(e Road to t(e +Intelligible Princi,le- #octrinei. 9riggering Cechanism $ontingency Bationale

1. When $ongress sets orth a res4onse to a named contingency, and gives theExecutive the 4ower to determine when the contingency has occurred, it is avalid delegation o legislative 4owers to the agency see 3rig .urora; 2";

pg $5 %tariffs allo*ed if6*&en violates neutral commerce(; 7ield v- )lark;2!/; pg $5 %retaliatory tariffs allo*ed if6*&en reasonable()

ii. Dilling in the etails

1. 9he +asic legislative scheme is dictated +y $ongress, it is u4 to theExecutive to ill in the details o how to +est accom4lish that see 8+ v-9rimaud; !; pg $5 %+ecretary filled in t&e details of t&e statute anddecided t&at s&eep gra4ing violated it()

iii. Intelligi+le 0rinci4le1. elegation is okay so long as $ongress 4rovides an ;intelligi+le 4rinci4le< or

the Executive to ollowa. 9his increases lexi+ility and delegates to a +ranch with more

ex4ertise*. +ee J, :ampton; !/2; pg $2 %Pre4 allo*ed to set tariff sc&edules to meet

)ongressional intelligible principle of competition *it& ot&er countries


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1. Im4lying #u+stantive Limitationsa. $ourts may ado4t a narrow view o an agency-s 4owers im4lying

that a +road view may lead to an unconstitutional delegation olegislative 4ower) to save a 3uestiona+le delegation see Aent v-Bulles; !#2; pg 5/ %court did NOT presume agency &ad beengranted Cuestionable po*er b6c NO clear statement of congressional intent to do so D t&erefore delegation *as up&eld b6c court construed statute to pro&ibit unconstitutional act(; see also 3en4ene )ase ()

*. 0rocedural #aeguardsa. 9he availa+ility o /udicial review may sustain a 3uestiona+le

delegation see Touby v- 8+; !!; pg 5$ %udicial revie* *asavailableF even t&oug& only for post enforcement c&allenges sodelegation *as proper()

ii. $lear #tatement Bule 5 unless $ongress s4eaks with unam+iguous clarity, a4articular statutory meaning will not +e contem4lated

1. $ourts use this to save 4otentially im4ro4er delegations +y construing thestatutory language in a way to 4reserve the delegation unless the statuteclearly states otherwise

e. Nature o/ %overnment Function 0 Se,aration o/ Po*ersi. $ongress may o+tain assistance o coordinate +ranches so long as $ongress lays

down an intelligi+le 4rinci4le or the agency to ollow see >istretta v- 8+; !2!; p 51)1. #e4aration o 4owers is +est when there is some overla4 +etween the

+ranches that allows or checks 6 +alances so long as there is noaggrandi>ement or encroachment

*. #calia-s dissent 5 strict se4aration o 4owersii. #ame limitations on delegation do not a44ly where the entity exercising the delegated

authority itsel 4ossess inde4endent authority over the su+/ect matter see Loving v-8+; !!$; pg 5$ %okay for Pre4 to regulate criminal punis&ments for military b6c &e iscommander in c&ief and already &as discretion over t&ese military actions()

. Polic)i. Agencies are good +c... 4ro:delegationF

1. 9hey are accessi+le to 4eo4le*. 9hey ulill civic re4u+lican ideal o deli+erative decision making

8. 9hey have institutional advantagesa. Dlexi+le decision making 4rocedures wex4ertise in su+/ect matter +. 0rovide or uniormity 6 4redicta+ility

ii. Agencies are +ad +c... anti:delegationF1. 9hey allow $ongress to shirk res4onsi+ility or decision making*. elegation allows regulatory schemes that work against the 4u+lic interest

II& Agencies E'ercising .udicial Aut(orit)

a. Congressional #elegation o/ .udicial Po*er to Agenciesi. A44ears $ongress is giving away 4ower that is not theirs to giveii. $ongress can create Art. I courts using the 60 clause...

1. 2"9 Art. III $onstitutional courts have general /urisdiction and /udgeswlietime tenure and salary 4rotection

Relevant )onstitutional Provisions Art. III, % 1 5 setting u4 "##$ and ederal courts

Amendment GII 5 right to a /ury trial Art. I, % H, 1H 5 necessary 6 4ro4er clause

• $ongress- 4ower to delegate /udicial 4ower to agencies seems airly secure• early all administrative cases involve ;4u+lic rights


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Administrative Law Exam OutlineJ

*. Art. I courts are restricted to one su+/ect and don-t have the 4rotection o the Art. III courts

iii. oesn-t this violate se4aration o 4owers?+. Old A,,roac( to non1Art& III Courts2Tribunals Public vs& Private Rig(t

i. 0u+lic Bights claims +etween government and others) 5 $ongress CAK choose touse Art. III courts so long as case 6 controversy is satisied), +ut can also use 60

authority to set u4 administrative mechanisms e.g., Art. I courtstri+unals) orresolving them1. $ongress has the 4ower to esta+lish legislativeArt. I courts to serve as

s4ecial tri+unals to ad/udicate 4u+lic rightsii. 0rivate Bights claims +etween individuals) 5 Art. III courts C"#9 +e used, 2"9 they

need not 4erorm every ad/udicatory unctions 5 $ongress can transer #OCE tasksto the agency ad/udicator so long as ull /udicial review o the agency-s legalconclusions are 4ermitted only deerential /udicial review o actual indings) see)ro*ell v- 3enson; !"/; pg /5 %agency allo*ed to resolve *orkers@ compensationclaims broug&t by maritime *orkers b6c agency action is revie*able by .rt- GGG court()

1. Agency ad/udications may not +e u4held i $ongress gives away too much4ower to +ankru4tcy /udges so that district courts do not retain essentialattri+utes o /udicial 4ower see Nort&ern Pipeline v- >arat&on Pipeline;!2/; pg "0 %admin6bankruptcy court not allo*ed b6c too muc& .rt- GGG po*er

*as unconstitutionally conferred on bankruptcy udges()c. 3lurring o/ t(e Public vs& Private Rig(t #istinction

i. "##$ redeined ;4u+lic right<ii. oesn-t need to +e +etween the government and others, /ust +e an issue that is so

closely integrated into the 4u+lic regulatory scheme that it would +e a44ro4riate oragency resolution wlimited involvement +y Art. III courts see T&omas v- 8nion)arbide; !2#; pg " %)ourt up&eld EP. arbitration for dispute bet*een /manufacturers()

d. Current A,,roac( to non1Art& III Courts2Tribunalsi. $ongress can create courts other than Art. III courts to ad/udicate agency 3uestions

as long as they don-t usur4 the ederal /udiciary-s 4ower see )7T) v- +c&or ; !2$; pg / %agency@s adudicatory po*ers depart from t&e traditional agency model onlya little bitF so it is a constitutional delegation()

ii. o set rule or determining o non:Art. III courts are constitutional Look to +c&or9hree 0art 9est

1. $onsider the extent to which the traditional Art. III unctions are transerred tonon:Art. III tri+unals Ad/unct 9heory) 5 $onsider in 4articular the ollowing

a. #tandard o review de novo 5 or 3uestions o law)+. 9he a+ility o non:art. III court to enorce its own decisionc. Whether an Art. I court 4erorm traditional tools o Art. III courts writs

o ha+eas cor4us, /ury trial, etc.)d. Whether the Art. I court is limited to a 4articulari>ed area o law

*. $onsider the nature o the right delegatedad/udicated this is O9determinative)

a. Cain 3uestion is 4u+lic vs. 4rivate+. I its 4rivate, ask i its congressionally created lean toward Art. I

court) or i its constitutional common law lean toward Art. III court)8. $onsider $ongress- reasons or the delegationa. Are they delegating to agencies +c they /ust really don-t want to give

the 4ower to Art. III courts, or is it +c they think it will +e moreeicient and +etter to give it to non:Art. III courts

iii. Dactors or Allowing elegation to non:Art. III courts1. Mreat degree o /udicial control reserved or the ederal courts*. $lear congressional 4ur4ose +ehind the /urisdictional delegation8. emonstrated need or the delegationJ. Limited nature o the delegation

o called ;Ad/unct 9heory< +cadministrative tri+unals areng as a legitimate ad/unct to

Art. III courts


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Administrative Law Exam Outline!

e. Relevance o/ Public vs& Private Rig(ts #istinction to t(e 4t( Amendmenti. &th Amendment did O9 a44ly to agency 4roceedings +c they were ;unknown to the

common law< see NLR3 v- Jones ? Laug&lin +teel )o; !"5; pg "# )ii. &th Amendment OE# a44ly i statute creates legal rights and remedies enorcea+le

in the ordinary courts o law 2"9 does O9 a44ly to agency 4roceedings where /urytrials would +e incom4ati+le wconce4t o administrative ad/udication see )urtis v-Loet&er; !51; pg "# )

iii. &th Amendment does O9 a44ly i the case concerns a 4u+lic right and is given tonon:Art. III courts that don-t sit w/uries see .tlas Roofing v- O+:.; !55; pg "# )

iv. &th Amendment does O9 a44ly to cases where 4u+lic rights are litigated see9ranfinanciera v- Nordberg ; !2!; pg "" %t&e issue *as legal and concerned a

private rig&t so t&e rig&t to ury *as guaranteed()III& E'ecutive and Legislative Control o/ Agencies

a. Controlling Polic) b) Controlling !(o a5es It 0 A,,ointment and Removali. Introduction

1. Relevant )onstitutional Provisionsa. Art. I, % H, 1H 5 $ongress- 60 clause+. Art. II, % *, ! and % 8, ( 5 7ouse has sole 4ower o

im4eachments, #enate has sole 4ower to try im4eachmentsc. Art. II, % 1 5 Executive 4ower is vested in the 0re>d. Art. II, % 8 5 0re> takes care that laws +e aithully executed

*. .ppointment a. Art. II, % *, * 5 0re> nominates oicials, wadvice 6 consent o

#enate 5 $ongress may vest the a44ointment o inferior officers in0re> alone, in the Courts of Law , or in the Heads of Departments

8. Removal a +rie history...)a. Lots o de+ate +y Dramers as to how oicials were a44ointed, +ut not

much at all into how they could +e removedi. Were oicials only termina+le ;or cause


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Administrative Law Exam Outline(

ii. $ourts o Law see >orrison v- Olson; !22; pg $0 %actfound constitutional t&at aut&ori4ed appointment by a )ourtof La* of an independent counsel to investigate allegationsof criminal *rongdoings *&en t&e independent counsel *asan inferior officer

*. 9ax $ourt $ourt o Law

a. $ourts o Law = OLK Art. III $ourtsiii. Bemoval

1. Gndependent .gencies P ;headless ourth +ranch

*. 7irst T&eory---Pre4 &as sole po*er to Removea. 0resident has exclusive 4ower to remove 4urely executive oicials

see >yers v- 8+; !/$; pg1" %dismissal by P-O- %cabinet dept-( of postmaster *as &eld to be an unconstitutional limitation of t&e Pre4@s

removal po*er() +ecause+. Removal Generally

i. Enumerated Po*ers1. $onstitution gives $ongress s4eciically enumerated

4owers that do not include removal) and gives 0re>+road 4owers 5 since there is no ex4ress limit on4ower o 0re> to remove, it is a clear indication thatit is allowed

ii. 7unctionalist .rgument Take )are )lause1. "##$ said 0re> needs ull 4ower to ire 4u+lic

oicers to ulill his constitutional duty to ;take carethat the laws are aithully executed<

iii. 7ormalist .rgument

1. 9he 4ower to remove is e3ual to the 4ower toa44oint i.e., a 0re> 4ower), O9 e3ual to the 4ower to advise and consent to a44oint i.e. a$ongressional 4ower)

iv. .rgument t&at )ongress s&ould &ave t&e po*er 1. $ongress creates inde4endent agencies and unds

them, so they shouldn-t get 4ower o removal?Q?a. 9echnically $ongress could +y a+olishing

their oiceQ

We don-t want +road deinitiono inerior oicer 6 narrow

deinition o e4artment +cthen lots o 4eo4le would haveto +e constitutionally a44ointed


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Administrative Law Exam Outline&

*. Oicials are res4onsi+le or carrying out laws...created +y $ongress...so they are agents o$ongress not the 0re>

v. 3ut---maybe it s&ould still be a Pre4 po*er---1. 0re> is +etter inormed a+out duties o oicials so he

is in a +etter 4osition to su4ervise and removec. Removal of Inferior Officers Specifically

i. +ame 7unctionalist .rgument as aboveii. +eparation of Po*ers

1. Bemoval +y $ongress would +e an aggrandi>ementa. Oicials would see $ongress as their ;+oss<

and then $ongress would +e making thelaws A taking care that they wereaithully executed 5 can-t let that ha44enQ

*. 0re> has sole 4ower to remove so other +ranchescan-t encroach on 0re>-s 4ower to ;take care that thelaws are aithully executed< and that includesremoving oicials

8. +econd T&eory---Pre4 does NOT &ave sole po*er to Removea. Whether the 0resident has the exclusive 4ower o removal de4ends

on the nature o the oice see :ump&rey@s Executor v- 8+; !"#; pg #" %congressionally imposed statutory limit on removal of officers*as &eld to be a constitutional limitation of t&e Pre4@s removal po*er b6c t&e officials *ere CIlegislative6CIudicial()

i. this governs removal in inde4endent agencies+. 0resident does O9 have exclusive 4ower to remove oicials that

are ;3uasi:legislative< or ;3uasi:/udicial<i. Ruasi:legislative = inde4endent agency makes

investigations and re4orts to $ongressii. Ruasi:/udicial = inde4endent agency ad/udicates cases

c. Distinguised from !yersi. Cyers involved a ;4urely executive< oicer ii. 7um4hrey-s involved a ;3uasi:legislative, 3uasi:/udicial<

oicer 1. 2"9...D9$ most likely executed laws i.e., executive)

too, so the distinction may not +e actually soundd. Inferring a Congressional power of Removal

i. #tatute said nothing a+out the removal o War $laims$ommissioners who ad/udicate claims or com4ensation duerom enemies during WWII 5 "##$ unanimously ound that0re> did not have 4ower to remove see ,einer v- 8+; !#2;

pg #$ )1. court said W$$ was more /udicial than executive so

0re> should not have sole 4ower o removalJ. T&ird T&eory---Pre4 does NOT &ave sole po*er to Remove

a. $ongress can 4ut limits on 0re>-s 4ower to remove, 2"9, removal

restrictions may not im4ede the 0resident-s a+ility to 4erorm hisconstitutional duty see >orrison v- Olson; !22; pg $0 )+. 9his governs removal in executive agencies

iv. $ongress- Bole1. .ppointment

a. $ongress cannot make a44ointments to the agencies itsel +c thatwould +e aggrandi>ement 6 violate Art. I, % *, *) 5 2"9 it can set3ualiications or oices would only +e slight encroachment)

i. Wall restrains +oth sides kee4s $ongress romencroaching on 4owers o Exec A kee4s Exec rom using

GEBK diicult to draw theline +etween when oicer isexecutive under Cyers and

3:legislative, 3:/udicialunder 7um4hrey-s...

"##$ has created anuntena+le line o reasoning

+etween Cyers and7um4hrey-s


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Administrative Law Exam OutlineH

a44ointment 4ower to 4urchase com4liance o mem+ers o$ongress

+. $ongress has the 4ower to create ederal oices and deine the4owerduties o them, +ut they cannot a44oint an oicer outside thesco4e o Art. I or assistance in the legislative 4rocess see 3uckleyv- aleo; !5$; p 22 %7E) *as engaged in executive type activitiesso officers could only be appointed according to appointment clause

D / votes by eac& Pre4F :ouse ? +enate is not constitutional()*. Removal

a. $ongress has a little 4ower to 4ut slight limits on 0re>-s 4ower solong as they don-t im4air the 0re>-s a+ility to 4erorm his duties, +utthey must +e very careul o violation o se4aration o 4owerses4ecially aggrandi>ement) see >yersF :ump&rey@s ExecutorF>orrisonF ? 3o*s&er )

+. $ongress cannot directly remove an executive oicial exce4t throughim4eachment see 3o*s&er v- +ynar; !2$; pg 5$ %)ongress is notallo*ed to take an active role in t&e supervision of officers c&arged*6t&e execution of t&e la*s it enacts< D officer is controlled by Execso it *ould be an aggrandi4ement of )ongress@s po*er to give t&e

po*er of removal to t&em()

i. Self"Delegation Problem #tevens- $oncurrence in2owsher)

1. It is unconstitutional or $ongress to give itsel the4ower to work out what the law means ater it has+een 4assed $ongress is delegating 4ower to itsel)

*. 9here would +e no review o $ongress- action =unconstitutional concentration o 4ower in one+ranch Aggrandi>ement 4ro+lem)

8. )onfirmationa. Little more 4ower to $ongress hereQ+. $ongress i.e., #enate) can constitutionally 4artici4ate in deciding

who will exercise delegated regulatory 4ower through their adviseand consent 4owers

c. Like using conirmation o ederal "##$) /udges as a means togetting the 0re> to do what they want

No %ood O5a) unless they im4air 0re>-s a+ility)>yers $ongress tried to retain or themselvessome 4ower o removal o an executive oicial aggrandi>ement: 7ere, $ongress had no limitation on its 4ower...0re>said I want him out, $ongress said yes or no

:ump&rey@s $ongress 4ut limits on 0re>-s4ower to remove +y limiting it to the ;nature othe oice< encroachment +ut its okay)

3o*s&er $ongress tried to retain or themselvessome 4ower o removal o an executive oicial aggrandi>ement

>orrison $ongress 4ut limits on 0re>-s 4owerto remove encroachment +ut its okay): said 0re> could only remove or cause, 6 that-sokay +c it doesn-t im4air 0re>-s a+ility

+. Formal Legislative Oversig(ti. Legislative Geto

1. einition = congressional acts re3uiring agencies to transmit inaladministrative rules to $ongress or review +eore they +ecame eective 5the vote o 1 or +oth cham+ers could kill the rule

*. $ongress cannot authori>e the use o a one:house veto to oversee thedelegation o its constitutional authority to the Exec +ranch +c it wouldviolate the +icameralism 6 4resentment rule Art. I, % &) see GN+ v- )&ad&a;


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Administrative Law Exam OutlineN

!2"; pg !" %.9@s decision to suspend deportation of an alien could benullified by vote of eit&er :ouse of )ongress D :ouse exercised t&is po*er in)&ad&a@s caseF &e broug&t suit and t&e sc&eme *as found unconstitutional()

8. $an +e seen as either a sel:delegation 4ro+lem, or violation o se4aration o4owersaggrandi>ement 4ro+lem

a. Either $ongress is giving themselves legislative 4ower that violates+icameralism 6 4resentment

+. OB they are reaching out and executing the laws or themselvesc. Either legislating wout +icameralism 6 4resentment OB executing

$ongress can-t do either o theseJ. It takes an airmative vote +y the 0re> and +oth houses o $ongress to

change the law 5 wlegislative vetoes, it only takes an airmative vote +y onehouse o $ongress to change the law that is not allowed

ii. $leaning u4 the Besulting #tatutory Cess1. T&e +everability Kuestion Lower courts had to igure out whether the

*''S statutes containing a veto 4rovision were totally invalid, or i they wouldremain eective exce4t or the veto court can decide to sever or not...

iii. $ongressional Beaction1. 9here is a routine willingness o $ongress 6 0re> to ollow /udicial decisions

*. Oicial deiance o a "##$ decision is almost unheard o 5 +ut it ha44enedwthe legislative vetoiv. Alternatives to the Legislative Geto

1. )ongressional Revie* .ct of !!$ a. $ongress tried to overcome some o the institutional +arriers to

statutory revision o agency 4olicy+. Amended the Begulatory Dlexi+ility Act to 4rovide a 4rocess where

ma/or rules must +e laid +eore $ongress or (' days +eore takingeect

i. 9hen $ongress can 4ass a /oint resolution o disa44rovalthrough a s4ecial ast track 4rocedure to 4revent the rulerom taking eect this BABELK ha44ens

*. )ommittee Oversig&t a. $ongress develo4ed a com4lex system o committees that divided

the la+or o overseeing agencies+. 9his may +e where $ongress gets most o its 4ower to review the

regulatory 4rocessc. In/ormal Legislative Oversig(t

i. Line Item Geto1. Allowing the 0re> to re4eal laws or his own 4olicy reasons wout o+serving

the 4rocedures set orth in Art. I, % & +icameralism 6 4resentment) isunconstitutional see )linton v- N=) ; !!2; pg //1)

a. Line Gtem eto = legislative act +c 0re> is making new law)i. It is new +c the law is the one w&'' 4rovisions and i 0re>

only takes (NH o the 4rovisions, it is a dierent and new lawii. 7uge distinction 5 i the court only saw the 0re> as

executing, instead o as amending or a44ealing, it would +e

considered an Exec act and it would +e okay*. $onstitution is silent on whether unilateral 4residential action that re4eals or

amends 4arts o duly enacted statutes is okay or nota. * arguments +y government in su44ort o their 4osition that it-s okay

i. Beliance on 9ari Act o 1HN' see Dield v. $lark)1. $ancellations are merely exercises o discretionary

authority granted to the 0re> +y the Act 5 2"9"##$ ound 8 crucial distinctions to re/ect thisargument


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Administrative Law Exam Outline1'

ii. 0re>-s #4ending Authority1. #u+stance o the authority to cancel tax 6 s4ending

items is no greater than 0re>-s traditional authority todecline to s4end a44ro4riated unds 5 2"9 "##$re/ected +y 0re> is acting unilaterally here

ii. $ontrolling 0olicy +y $ontrolling #4ending1. )ourts *ill NEER touc& t&is this is the 0BICABK2E#9 way $ongress

can control regulatory 4olicya. $ongress can have inormal discussions wExec and /ust say Exec

aren-t giving $ongress what we want, and oh, you /ust asked or lotso T, darn, we don-t know i we-re going to +e a+le to ind it, unless ocourse you give us what we want...

*. .gency Gnaction Refusing to +pend Resources on PolicyI>aking ?Enforcing

a. Exec can control agency decisions not /ust +y im4ounding unds, +utalso +y when they act i.e., to institute enorcement 4roceedings and4romulgate new rules)

+. ecisions not to take enorcement actions are 4resum4tively not /udicially reviewa+le see 7eckler v. $haneyU 1NH!)

8. .ppropriations

a. !oney #al$si. 9he a44ro4riations 4ower ;is the most im4ortant single cur+

in the $onstitution on 4residential 4ower<ii. $ongress has +ecome ade4t at using the a44ro4riations

4ower as a way to orce course:corrections in administrative4olicy

+. Callenge of %umpstarting an Inactive &gency i. 7ow to use undsa44ro4riations when an agency is

determined not to act...ii. $ongress attem4ted coercive statutes to accelerate the 4ace

o regulation +y making it easier or an agency to issueregulations and to acilitate legislative oversight

1. 9his oten resulted in +ad regulatory 4olicy though

+c $ongress- coercive statutes set im4ossi+ledeadlines and 4reem4ted inormed regulatory4riorities


11/30


A#INISTRATI$E PROCE#URE

I& T(e Constitution 0 #ue Process as re6uired b) t(e 78t( Amendmenta. Londoner AN# 3i1etallic #istinction

i. When a small num+er o 4eo4le are directly aected +y an act o a state +oard, due4rocess gives them the right to a hearing see Londoner v- Benver; !02; pg /"2 )

ii. When more than a small num+er o 4eo4le are aected +y an act o a state +oard, itwould +e im4ractica+le that they should have a direct voice in its ado4tion see 3iI>etallic v- +tate 3oard; !#; pg /1)

+. Nature o/ t(e #istinctioni. Ad/udication = due 4rocess re3uires a hearingii. Bulemaking = due 4rocess only re3uires a legislative vote

#istinction bet*een Rulema5ing 93i1etallic: ;Aded treatment dierent individuals

+eing treated dierently +c o dierent actsa+out them)

0olicy vs. Dacts•

Are they making +road 4olicy decisions ora44lying law to concrete acts?

Who is the ecisionmaker? 0olitical accounta+ility• Is it a 4olitically accounta+le d:maker or

4olitically insulated d:maker less this looks likelegislature and more it looks like what thecourts do)?

Ad


12/30

Administrative Law Exam Outline1*

II& T(e APA o/ 7>8?a. %!!1 einitions

i. Bule 5 whole or 4art o an agency statement o general or 4articular a44lica+ility anduture eect designed to im4lement, inter4ret, or 4rescri+e law or 4olicy

ii. Bule making 5 agency 4rocess or ormulating, amending, or re4ealing a ruleiii. Order 5 whole or 4art o a inal dis4osition, whether airmative, negative, in/unctive,

or declaratory, in a matter other than rule making +asically anything that-s not a rule)iv. Ad/udication 5 agency 4rocess or ormulating an order

+. %!!8 Bule Cakingi. a) 5 it a44lies to most rules wsome exce4tionsii. +) 5 notice o 4ro4osed rule making is 4u+lished in the Dederal Begister iii. c) 5 o44ortunity to comment may not +e a ull oral hearing)

1. % !!8 is inormal it is the deault 4rovisiona. I $ongress has a statute that says ;issue rules on the record ater

hearing< then we re3uire something more i.e., %%!!( 6 !!&)iv. istinction +etween ormal and inormal is made +y $ongress

1. I the rule making must +e on the record, the agencies can only take intoaccount things that are ;on the record< can-t use their own thoughts

*. % !!8 a44lies to rule making unless $ongress says otherwisec. %!!J Ad/udications

i. a) 5 it a44lies to every case o ad/udication1. % !!J is ormal it is the deault 4rovision

a. generally we ex4ect ad/udication to ollow a ormal set o rules+. It-s assumed $ongress says it should +e ormal i.e., %%!!( 6 !!&)

ii. +) 5 oticed. %!!( 7earingsU 4residing em4loyeesU 4owers and dutiesU +urden o 4rooU evidenceU record

as +asis o decisioni. +) 5 right to an un+iased ad/udicator ii. d) 5 o44ortunity to 4resent either oral or written evidenceiii. e) 5 decision +ased on evidence 4roduced in the record

e. %!!& Initial decisionsU conclusivenessU review +y agencyU su+missions +y 4artiesU content odecisionsU record

i. c) 5 statement o reasons

III& T(e 3asic Categories

APA Rule a5ing 9Legislating: Ad


13/30


I$& Formal Ad


14/30

Administrative Law Exam Outline1J

i. Men counsel re4resents interested 4erson DLBA), talking to@udge wout the other side 0A9$O) 4resent

+. 2"9 court inds it okay +c it was only a short conversation 6 thinksMen $ounsel is not an interested 4erson

*. Executive 3ranc& communicationa. #hould +e unlawul ex 4arte comm +c @udge told DLBA 4rocedure to

ollow ile motion) so it was like getting legal advice rom the /udge+. 2"9 court inds it okay +c it was only a 4rocedural issue

8. External communicationa. #hould +e unlawul ex 4arte comm +c "nion leader set u4 dinner

w@udge and that is an interested 4arty, talking to /udge wout otherside 4resent

+. 2"9 court inds it okay +c there were no threats4romises made to@udge that inluenced the inal decision

iii. Portland .udubon +ociety v- Endangered +pecies )ommittee; !!"; pg 111 %E+.regulation aut&ori4es exemptions if # members vote D allegations of pressure put onmembers by *&ite &ouse officials D improper ex parte communications found(

1. $ommittee 4roceedings are su+/ect to ex 4arte comm +an*. $ommunications rom 0re> 6 sta are su+/ect to ex 4arte comm +an

a. 0re> 6 sta are ;interested 4arties


15/30

Administrative Law Exam Outline1!

a. Agency can-t use its own or external scientiicF data and not tell the4u+lic a+out it or give the 4u+lic a chance to comment on it

i. I the agency doesn-t give the 4u+lic all the data it is using tomake its decision then the 4u+lic-s 4artici4ation is notmeaningul

+. 9he agency does not have to make their decision +ased on thingssolely in the record contra ormal ad/udication) +ut they have to4rovide the inormation to the 4arties and allow them an o44ortunityto comment

iii. #tatement o +asis and 4ur4ose % !!8c)1. 9he concise and general statement o +asis and 4ur4ose must show how the

decision was made and also must show that it meets the goals o the statutesee Gndependent 8+ Tanker O*ners v- Bole; !25; pg #10 %B@s statement istoo conclusory ? doesn@t tell us if t&e agency rule meets t&e goals of t&e .ct()

a. Exam4le o 4rocedure ena+ling su+stantive review +c you need tolook at the su+stance to see i the 4rocedure was +ad

c. E' Parte Communications ABE allowedi. Old Bule see :3O v- 7)); !55; pg $$$ ) 5 ex 4arte communications are not

allowed in inormal rulemakingsii. $urrent Bule 5 in inormal rulemakings, agency decision:makers are allowed to ask

someone outside OB inside the agency or adviceinormationinter4retation o data1. Gnternal see 8nited +teel*orkers of .merica v- >ars&all; !2; pg $52

%comms *6staff attorney involved in every stage of rulemaking are allo*ed()a. ecision:makers can rely on anyone win the agency when making a

decision+. ecision:makers can rely on outside ex4erts as well

*. External see +ierra )lub v- )ostle; !2; pg $21 %it is okay for Pre4 ?)ongress to exercise influence so long as t&ere is adeCuate noticeFopportunity to participateF and a clear statement of basis ? purpose()

a. ecision:makers can communicate wthe 0re> +c agencies are 4arto the Exec +ranch, they-re 4olitically accounta+le and 0re> has to;take care that the laws are aithully executed<

+. External actors can discuss concerns wagency decision:makers as

long as they do not use ;extraneous< 4ressures to 4ersuade themd. No ore t(an BB Re6uires=

i. In inormal rulemaking, courts may O9 go +eyond the A0A, only the agencies candecide to im4ose more 4rocedural re3uirements than the A0A re3uires see ermont=ankee v- Natural Resources Befense )ouncil; !52; pg 1!2 %it is t&e discretion oft&e agencies and not t&at of t&e courts in determining *&en extra procedural devicess&ould be used()

1. 9he court is allowed to inter4ret the A0A see Nova +cotia), +ut they are notallowed to im4ose something more than the A0A re3uires

*. Agencies should +e allowed to make their own rules4rocedures unless thereare constitutional constraints or extremely com4elling circumstances sayingotherwise

8. 8 reasons why it is the discretion o the agencies 6 not the courts

a. esire to avoid un4redicta+le /udicial review+. esire to 4revent Conday morning 3uarter+ackingc. Cisconceived nature o the standard o /udicial review Bule vs. Ad/)

ii. Exce4tions to Germont Kankee1. Organic statute 5 when the statute re3uires something more than the A0A*. Past .gency Practice 6 .gency Rules 5 the agency might +ind themselves8. )onstitution 6 Bue Process 5 2i:Cetallic said due 4rocess considerations

shouldn-t +e involved in rulemakings, +ut i the circumstancesacts suggestthat it really should involve due 4rocess 4rotections, then it will

J. Extremely )ompelling )ircumstances 5 exam4le?F


16/30

Administrative Law Exam Outline1(

iii. #u+stance vs. 0rocedure1. $t o A44s could strike down the rulecase +y saying that there was not a

clear record o +asis 6 4ur4ose 5 this is a 4rocedural argument, +ut it is alsosort o a su+stantive argument +c its making the court look at thesu+stantive acts o the case see also 8+ Tankers v- BoleF and Nova +cotia)

*. e+ate +etween @. Leventhal 6 @. 2a>elon see 4g !18)a. 2a> 5 4rocedureF we are /udges, not scientists and we shouldn-t

second guess scientiic ex4erts 5 +etter way is to im4ose greater4rocedural guidelines on the agencies LO#E# see G9 Kankee)

+. Lev 5 su+stanceF we shouldn-t im4ose greater 4roceduralguidelines, we should try to learn as much as we can a+out thesu+stance so we can make a reasoned decision +ased on what theagency did WI#

& H)brid Rulema5inga. #calia 5 says $ongress can alter 4rocedural o+ligations 5 i they

think the agency will +e too 4olitical, it can add additional 4roceduralre3uirements +y 4assing a statute

i. 4rocedure is a vehicle or getting to su+stantive issues+. Edley 5 court can look at su+stance and say that agency couldn-t

have come u4 with their decision +ased on the actsevidenceavaila+le 5 this /ust may workQ

J. $ourts may lose the ;4rocedure< +attle, +ut win the ;su+stantive< +attle$I& In/ormal Adarine Engineers v- >aritime .dmin-; /000 %party tried to impose ex parte communication pro&ibition in informaladudicationF but court did not let t&em do it b6c court can only impose *&at t&e .P.reCuires ? not&ing more()

+. P'GC D In/ormal Ad


17/30

Administrative Law Exam Outline1&

i. When rules are re3uired +y statute to +e made ;on the record< ater o44ortunity or;agency hearing


18/30

Administrative Law Exam Outline1H

*. does O9 have the orce o law8. does O9 +ind anyone, it-s /ust guidance

iii. +ee 9E v- EP.; /00/; pg 5! %Rule saying &o* to clean up P)3; EP. issues a9uidance Bocument saying t&at parties must do a risk assessment; 9uidance Bocgives / risk assessment options; 9E argues t&at t&e 9uidance Boc is a Rule t&ats&ould &ave gone t&roug& N?) and not a Policy +tatement like t&e EP. says

&eld 9E *ins b6c t&e 9uidance Boc is NOT a Policy +tatement b6c it is a substantiverule t&at &as t&e force of la* and binds people(I& C(oosing bet*een t(e #i//erent Procedures

a. C(oices think Londoner 2i:metallic)i. Bule 5 4ros4ective, general, creation o 4olicyii. Ad/udication 5 retroactive, individual, a44lication o 4olicy to actsiii. Also choice +etween inormal 6 su4er inormal

+. Factors Agenc) ig(t Consider 0 it could go eit(er *a)i. Ruality 5 Which will achieve a higher 3uality decision?

1. Rule 5 you can-t antici4ate everything, +ut you have a +etter chance osolving the 4ro+lem +c you have +roader in4ut

*. .dudication 5 there could +e a +ad rule that doesn-t +eneit all 4artiesaected similar to airness argument)

ii. Eiciency 5 Which will +e the most eicient method?

1. Rule 5 i it is a general issue, then you wouldn-t have to kee4 re4eating thead/udication each time the issue arises

*. .dudication 5 no need to go through the +urdensome 6 lengthy 6$4rocess 5 i there aren-t that many 4eo4le involved, then start here and youcould shit later to rulemaking i it a44ears that lots o 4eo4le will then +einvolved

iii. 0olitical Accounta+ility 5 Which will allow 4olitical 4artici4ation?1. Rule 5 you have the 6$ 4rocedure, and ex 4arte contacts are allowed so

4olitical igures can get involved*. .dudication 5 ex 4arte contacts are not allowed

iv. Dairness 5 Which will +e air to the involved 4arties?1. Rule 5 you have the 6$ 4rocedure to +e sure everyone can 4artici4ate*. .dudication see Nova +cotia) 5 it is act s4eciic and case +y case, so

you-re ate is individually decided, you-re not /ust su+/ect to a +road generalrule that might not really +eneit you

c. T(e Agenc) #ecides *(ic( Procedure to Usei. 9he choice +etween 4roceeding +y rulemaking or ad/udication is let to the discretion

o the agencyU doesn-t matter what the court thinks see +E) v- )&enery; !15; pg##$ %Public 8tility .ct aimed at dismantling and reorgani4ing pyramid structurecompanies in t&e industry; +E) adudicated a caseF 8++) t&oug&t t&ey s&ould &aveissued a rule &eld 8++) &ad to agree *it& it b6c agency gets to decide *&at

procedure to use b6c t&ey &ave expertise()ii. +ee also 3ell .erospace v- NLR3; !51; pg #$! %NLR3 allo*ed managerial

employees to unioni4e even t&oug& prior policy said managerial employees *ere notallo*ed to &eld follo*ed )&enery; court must give great *eig&t to an agency@s

decision to use adudication instead of rulemaking even t&oug& rulemaking may &ave

been better(d. Limits on Agenc)Gs #iscretion

i. I use o ad/udication is an a+use o discretion, court may overturn 2"9 2ell Aeros4ace +asically $LO#E# 97E OOB on this o4tionF

ii. $ongress- statuteAct could s4eciy rulemaking only +e used& Constitutional #ue Process as a Constraint on Agenc) Ad


19/30

Administrative Law Exam Outline1N

*. oes it get ue 0rocess 4rotection?ii. W7A9 5 I ue 0rocess does kick in, then use a +alancing test to weigh the interests

and determine what 4rocess is due1. What does ue 0rocess re3uire?

c. !HEN does #ue Process "ic5 In=i. I the nature o the interest involves a li+erty or 4ro4erty interest, then ue 0rocess

kicks in see 3oard of Regents of +tate )olleges v- Rot&; !5"; pg 20)1. .n individual is not deprived of liberty or property in violation of t&e 1t&

.mendment *&en &e is given no reason *&y &is nonItenured employmentis being terminated and afforded no process to protest t&at decision ?t&erefore &e isn@t due any special procedures

*. Liberty P@s liberty interest in &aving a ob is not defeated b6c B did not pro&ibit &im from seeking employment else*&ere and B did not damage P@sreputation

8. Property only if P@s A &ad included a rene*al provisionF or if &e *astenuredF *ould &e &ave a valid property interest in &is ob

ii. Li+erty1. 9he court determines i this exists*. 0ossi+le deinition includes 1) reedom rom +odily restraint, *) right o

individuals to , 8) right to engage in common occu4ations o lie, J) right toac3uire useul knowledge, !) right to marry, have a home 6 kids, () right to4ractice a religion, and &) right to en/oy those 4rivileges as essential to theorderly 4ursuit o ha44iness

iii. 0ro4erty1. 9he state has some control in creating it*. Kou must have a legitimate claim o entitlement +ased on historical 4ractice

and state created 4ositive law8. Kou don-t necessarily need a ormal to have a 4ro4erty interest, an im4lied

may +e suicient see Perry v- +indermann; !5/; pg 202 %P s&o*ed &e&ad de facto tenure t&roug& evidence of a faculty guide and state boardguidelineF and t&us a property interest in &is ob()

d. !HAT does #ue Process Re6uire=i. 9he Dirst Attem4t

1. ue 0rocess re3uires that welare reci4ients in K have to +e aorded a 4re:termination evidentiary hearing, s4eciically re3uiring 1) timely 6 ade3uatenotice, *) oral 4resentation wwitnesses, 8) cross examination, J) o4tion or a lawyer, !) decision +ased on the record, () ex4lanation o decision, and&) im4artial decision maker see 9oldberg v- Aelly; !50; pg 52")

a. 9he court re3uired these ormal 4rocedures +c 4eo4le-s liveshealthwere at stake there was deinitely a 4ro4erty interest)

ii. 9he 2alancing 9est "se this to determine what ue 0rocess re3uires1. 7arm o error interest o the individual)

a. 7ow seriousim4ortant is the interest +eing terminated?+. 7ow grievous a loss would occur i there-s a mistake?

*. Bisk o error and value o additional su+stantive 4rocessesa. What is the risk o an erroneous de4rivation o the interest through

the 4rocedures use?+. What is the 4ro+a+le value o any additional su+stantive 4rocedures?c. What are the costs o an erroneous de4rivation?

8. $ountervailing government interestsa. What are the costs and administrative +urdens o additional

4rocedures and +eneits?J. +ee >att&e*s v- Eldridge; !5$; pg 2"! %an order terminating a person@s ++

disability benefits need not be preceded by an evidentiary &earing(e. Relations(i, bet*een !HEN and !HAT


20/30

Administrative Law Exam Outline*'

i. #u+stance W7E) and 4rocedure W7A9) are distinct see )leveland 3oard of Edv- Loudermill; !2#; pg 25/ )

1. W7E i it-s a 4ro4erty interest) is answered +y the state*. W7A9 is answered +y the +alancing test

ii. 2itter vs. #weet What vs. When)1. Ca/ority says to se4arate the +itter rom the sweet*. issent says to take the +itter wthe sweet


21/30

Administrative Law Exam Outline*1

.U#ICIAL RE$IE! OF THE SU3STANCE OF A#INISTRATI$E ACTION

.n agency starts by interpreting t&e la* it is supposed to implement; it finds facts about t&e situation it *ill address; and it uses discretion in applying t&e la* to t&e factual situation it finds to exist

9eneral rule courts *ill give less deference to an agency@s legal conclusions t&an to t&e agency@s

factual or discretionary determinations

I& Revie* o/ Factual #eterminationsa. Substantial Evidence % &'(*)E)

i. A44lication1. A44lies to %% !!( 6 !!& Dormal Ad/udications 6 rare rulemakings)*. As long as the agency decision is su44orted +y su+stantial evidence, then

the reviewing court must airm 5 lots o deerence to agency determinationii. 9he $ourt Cust $onsider the Whole Becord

1. 9he court is not su44osed to look /ust or evidence that su44orts theagency-s decision, +ut to look at all o the relevant evidence and determinewhether the agency-s decision is reasona+le see 8niversal )amera )orp- v-NLR3; !#; pg !10 %employee *as fired for disputed reasonF in adudication

.LJ found firing violated NLR.F agency reversed D court looked at *&olerecordF including .LJ@s findingsF and affirmed t&e agency@s decision()

iii. 9o Whom is eerence Owed?1. 9he 2oard is owed the deerence, not the AL@

*. 9he su+stantial evidence test a44lies to the agency-s decision, not the AL@-sa- #ince the AL@-s decision is 4art o the record, the reviewing court will

consider it when evaluating the agency-s decision8. Limits the 4ower o AL@-s, +ut 4laces a +urden on the agency to ex4lain a

decision contrary to the AL@-siv. Agency vs. @ury

1. #u+stantial evidence test is the same as what /udges a44ly to /uries all thetime in civil trials i /ury-s decision is not +ased on su+stantial evidence, the

/udge grants a /.n.o.v.)*. I the court thinks a reasona+le /ury could have ound the other way like not

how the agency ound), they can overturn an agency-s decision see .llento*n >ack v- NLR3; !!2; pg !#" %NLR3 adudication said unionexistedF 8++) reversed NLR3@s determination saying it *as not supported

by substantial evidence on t&e record as a *&ole()+. Arbitrar) ; Ca,ricious % &'(*)A)i. A44lication

1. A44lies to most other 4roceedings not %% !!( 6 !!&) 6$ Bulemaking 6Inormal Ad/udications

*. $ourts have inter4reted this to im4ose the same actual review standard as#u+stantial Evidence

8. It is A6$ to make a decision that is not su44orted +y su+stantial evidence+ased on the whole record 5 lots o deerence to agency determinations heretoo

• When challenging an agency decision, you can make a 4rocedural or a su+stantive challengeo 7ow can the su+stance +e wrong?

9he agency may have gotten the acts wrong must +e su44orted +y evidence) 9he agency may have gotten the law wrong must +e consistent wlaw 6 can-t violate

$ongress- ex4ress instructions)• I the decision is consistent wlaw 6 su44orted +y evidence it can still +e A6$ i there is a 4olicy

determination saying it is unwise• % &'(*) gives the court the authority to review an agency-s decision on several listed grounds


22/30

Administrative Law Exam Outline**

c. Relations(i, 3et*een Substantial Evidence and Arbitrar) ; Ca,riciousi. #u+stantial evidence standard and A6$ standard are the same see .B.P+O v-

7ederal Reserve +ystem; !21; pg !$# %rulemaking employed .?) standard()ii. #u+stantial evidence a44lies s4eciically to ormal ad/udications, A6$ a44lies to

inormal 4rocedures 5 /ust a dierence in languageiii. #o long as the agency decision is +ased on the whole record, the language doesn-t

matter iv. !th 6 11th $ircuits suggest that the #E is may+e a teeny +it more stringent than A6$

II& Revie* o/ #eterminations 3e)ond t(e Factsa. Pre1C(evron

i. #4eciic a44lication o +road statutory terms goes to the agency1. I a 3uestion is a s4eciic a44lication o a +road statutory term courts will

deer to the agency so long as the agency-s decision is +ased on the recordand has a reasona+le +asis in law see NLR3 v- :earst Publications; !11;

pg !5! %NLR3 interpreted statute to say ne*sboys *ere employeesF )t of .pps interpreted statute to say t&ey *eren@t; 8++) reversed b6c NLR3@sinterpretation *as based on t&e record ? &ad a reasonable basis in la*()

*. 9he ultimate determination o statutory inter4retation lies in the courts, +utinitially they let the agency have a shot at it +c $ongress delegated theauthority to them

8. Tension statutory inter4retation is or the courts 6 $ongress assigned it toan agency

J. Reason for deference agency has ex4erience and ex4ertise in the ield!. 38T +EE Packard >otor )ar )o- v- NLR3; !15; pg !21 %8++) up&eld

NLR3@s determination of foreman as employees; but based on t&eir o*ninterpretation of t&e statue(

ii. Inter4retive Bules1. A court does not need to acce4t an agency-s inter4retive rules, +ut usually

gives it some res4ectweight*. Agency doesn-t really get deerence or its inter4retive rules, /ust a ;4ower to

4ersuade< see +kidmore v- +*ift ? )o-; !11; pg !2# %OT *ork interpretiverule()

8. Reason for deference agency has ex4ertise 6 a desire or uniormity

J. Whether 6 7ow Cuch deerence will +e given de4ends on the circumstancesa- 9horoughness o the agency-s consideration 5 expertiseb- Galidity o their reason does it make sense) 5 expertisec- $onsistency over time 5 uniformity

iii. 0resum4tion o Beviewa+ility wA6$ deerence) +etween acts 6 lawF1. Inormal Ad/udications get A6$ deerence see )iti4ens to Preserve Overton

Park v- olpe; !5; pg !2! %P claimed agency didn@t issue formal findings I8++) said case *as an informal adudication *&ic& does not reCuirestatement of basis or purpose %N?) Rulemaking( or formal findings %formalrulemaking ? adudications( and is revie*ed under an .?) standard()

*. 0resum4tion o /udicial review unless A0A % &'1)a- 9here is a statutory 4rohi+ition on review, or b- Agency actions are committed to agency discretion +y law

8. Be3uirements o @udicial Beviewa- Whether the agency was acting win the scope of its statutory

autority A0A % &'(*)$))b- Whether the decision was &*C A0A % &'(*)A))

i. I the courts want to evaluate under A6$, they need a recordandor ormal indings...

ii. #ends a message to the agency that they are +etter o+uilding a record 6 giving ex4lanations even when they-renot re3uired to do so


23/30

Administrative Law Exam Outline*8

iii. oesn-t directly contradict G9 Kankee +c doesn-t say theagency C"#9 do something, /ust creates an incentive or theagency to ollow

c- Whether the agency ollowed the proper procedure A0A % &'(*)))

J. XXBevival o 2a>elon vs. Leventhal de+ate rom G9 Kankeeiv. Ar+itrary 6 $a4ricious Beview

1. A rule is A6$ when the agencya- 7as relied on actors which $ongress has not intended it to consider,b- Entirely ailed to consider an im4ortant as4ect o the 4ro+lem,c- Oered an ex4lanation or its decision that doesn-t match u4 with the

evidence +eore the agency, or d- ecision is so im4lausi+le that it could not +e attri+uted to a

dierence in a view or the 4roduct o agency ex4ertise*. An agency can change its mind, +ut it must give reasons see >otor e&icle

>anufacturers .ssociation v- +tate 7arm Gnsur-; !2"; pg 00/ %rule reCuiring passive restraints in carsF agency failed to consider / viable options in t&erecord ? 8++) &eld t&at rule *as .?) b6c of t&at()

8. 9reat a revocation o a rule the same as a rulemaking, not as an agency-sdecision not to act this comes u4 again later in reviewa+ility...)

J. $onse3uencesa- Ossiication 5 rules get stuck in 4lace +c courts make is so hard or

agencies to change the rules 5 makes agencies hesitate +eore4romulgating rules

b- $ourts are acting as $ongress- agent in 4rotecting the goals o$ongress 5 Even though 0re> gets to make a little law through theagencies, the courts 4rovide a check on that 4ower +y making surethat agencies act win statutes set orth +y $ongress

+. C(evron Test

i. )&evronF 8+. v- Natural Resources Befense )ouncil; !21; pg 0/$ %agency &ad todecide if bubble< concept applied to t&e statutory term of stationary source


24/30

Administrative Law Exam Outline*J

1. 2etween legislative su4remacy 6 agency 4ower a- I there-s am+iguity, the court is su44osed to 4romote legislative

su4remacyb- $hevron is shiting 4ower rom $ongress to agenciesc- 9his move away rom legislative su4remacy seems like an

unconstitutional delegation o 4owers*. 2etween $hevron 6 non:delegation doctrine

a- Cakes delegation +roader 5 +eore we were trying to limitdelegations, now we are +roadening them +c any am+iguity+ecomes an im4licit delegation

b- $hevron essentially gives agencies the 4ower to deine intelligi+le4rinci4le +c its usually a +it am+iguous) and then there-s no limit onagency 4ower

c- Cay+e $hevron hel4s non:delegation $hevron creates anincentive to $ongress to drat +etterclearer statues and erases ourworry o $ongress 4unting and giving stu away to the agency

vii. Beconcile $hevron and #tate Darm1. $hevron when $ongress is am+iguous, courts will +e deerential to

agencies, as long as they are reasona+le or 3uestions o law, courts deerto agencies)

*. #tate Darm or 4olicy 3uestions, the courts really dig in and give lessdeerence to agencies

8. #te4 I = As a 4ure matter o statutory inter4retation, is the statute clear 6unam+iguous? I not, go to #te4 II.

J. #te4 II = Is the agency-s decision reasona+le?a- A) as a matter o 4ure statutory inter4retation text S legislative

history), is the inter4retation reasona+le? see $hevron) theoryFb- 2) did the agency engage in reasoned decision making 5 is the

decision reasoned +ased on the record 6 the statute? see #tateDarm, A6$) 4racticeF

viii. 0olicy Beasons in #u44ort o $hevron1. Agency ex4ertise*. Agency needs lexi+ility in com4lex regulatory schemes

8. Agency is 4olitically accounta+leJ. eerence 4romotes uniormity in the law

c. Post1C(evroni. Less eerence +c o Aggressive 9extualism defeated in +tep G )

1. +ee >)G Telecommunications v- .T?T; !!1; pg 0#/ %7)) relied on itsstatutory po*er to modify< t&e .ct ? announced it *ould exempt all longdistance carriers except .T?T from tariff filings(

*. #te4 I 5 #calia says the Act is clear according to dictionary deinitions;modiy< connotes moderate change and the D$$-s change is struck down+c its too swee4ing) 5 there-s no need to go on to #te4 II

8. #te4 II 5 D$$-s decision a44ears reasona+le 6 not A6$ii. Core eerence +c o Aggressive Intentionalism defeated in +tep GG )

1. +ee 7B. v- 3ro*n ? ,illiamson Tobacco; /000; pg 0$# %7B. attempted to

regulate tobacco products(*. #te4 I 5 meaning o ;sae< is am+iguous treated as an im4licit delegation)8. #te4 II 5 2"9 would have +een a huge delegation or $ongress to 4unt to the

agencies 6 "##$ didn-t think $ongress meant to do thatd. !(en C(evron A,,lies

i. Inormal Bulemaking1. Procedural

a- otice, o44ortunity to 4artici4ate, statement o +asis and 4ur4ose*. +ubstantive $hevron

a- #te4 I 5 is the statute clear and unam+iguous


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Administrative Law Exam Outline*!

b- #te4 II 5 i it is am+iguous, is the agency-s inter4retation reasona+le?i. Was it reasona+le as a matter o 4ure statutory

inter4retation?ii. Was it A6$? id actual review meet #u+. Evid. test?

ii. Dormal Ad/udication1. Procedural

a- % !!( 6 !!&, o44ortunity or oral hearing wcross examination, no ex4arte communications

*. +ubstantive $hevrona- #te4 I 5 is the statute clear and unam+iguousb- #te4 II 5 i it is am+iguous, is the agency-s inter4retation reasona+le?

i. Was it reasona+le as a matter o 4ure statutoryinter4retation?

ii. Was it A6$? id actual review meet #u+. Evid. test?iii. Inormal Ad/udication

1. Procedural a- ue 0rocess

i. Initial in3uiry to whether due 4rocess a44lies?ii. Is there 4ro4erty or li+erty interest at stake?iii. 2alancing test to decide what 4rocedures to do

*. +ubstantivea- $hevron

i. icks in i $ongress intended to give agency delegated lawmaking authority

b- #kidmorei. icks in i $ongress did not intend to give agency delegated

law making authority 5 or i it is, then agency is notexercising it

iv. #u4er Inormal Bulemaking Inter4retive Bules 6 0olicy #tatements)1. +ubstantive #kidmore*. +ee 8+ v- >ead )orp-; /00; pg 0$2 %>ead@s day planners *ere classified

so no tariffs appliedF but t&en t&e agency s*itc&ed t&e classification in an GR;8++) &eld t&at )&evron deference didn@t applyF but +kidmore deference did

apply(v. Dormal Bulemaking

1. Procedural a. % !!( 6 !!&, o44ortunity or oral hearing wcross examination

*. +ubstantive $hevrona. #te4 I 5 is the statute clear and unam+iguous+. #te4 II 5 i it is am+iguous, is the agency-s inter4retation reasona+le?

i. Was it reasona+le as a matter o 4ure statutoryinter4retation?

ii. Was it A6$? id actual review meet #u+stantial Evidence9est?

ii. Why agencies get more deerence in 6$ Bulemaking 6 Dormal Ad/udications thanin Inormal Ad/udications or Inter4retive Bules0olicy #tatements

1. 0artici4ation0roceduresa. 6$ Bulemaking 5 4eo4le have had on o44ortunity to 4artici4ate so

agency gets more deerence +c there-s a +etter chance they got itright 6 +c the rules have the orce o law i.e., the court is +oundunless its unreasona+le)

+. IB0# 5 there is less chance or 4artici4ation A rules don-t havethe orce o law i.e., they can +e challenged in ad/udications)

*. $ongressional Intenta. $hevron is related to $ongressional intent to delegate


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Administrative Law Exam Outline*(

+. Ask i $ongress intended to delegate lawmaking authority to theagency?

i. I they do, like in 6$ Bulemaking 6 Dormal Ad/udications,then there is a delegation o lawmaking authority 6 $hevrona44lies)

ii. I they don-t, like in an Inormal Ad/udication or IB0#, thenhere isn-t a delegation o lawmaking authority 6 #kidmorea44lies)

iii. What is #kidmore eerence?1. #kidmore deerence = 4ower to 4ersuade see )&ristensen v- :arris )ounty;

/000; pg 02) o one really knows that that meansQQ


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Administrative Law Exam Outline*&

ACCESS TO .U#ICIAL RE$IE!

Gf P doesn@t &ave standingF t&ere is no *ay for us to kno* if t&e agency decision *as proper D Gf P can@t get into court in t&e first placeF *e@ll never kno* &o* t&e substantive issues are resolved

I& Standinga. 9he ederal /udicial 4ower is limited to ;cases< and ;controversies<+. A0A % &'* 5 ;any 4erson aggrieved win the meaning o the relevant statute is entitled to

/udicial review<c. Constitutional Standing

i. Be3uirements1. In/ury in Dact

a. In/ury must +e concrete 6 4articulari>ed, not a+stract or hy4othetical+. I the in/ury is a stigmatic one that creates a risk o everyone

+ecoming a 0, then the in/ury is not suicient see .llen v- ,rig&t;!21; pg 2 %Ps do not &ave standing b6c t&eir stigmatic inury ofracial discrimination is not a udicially cogni4able inury in fact b6cany black person could t&en become a P()

c. 9hreats to aesthetic, recreational 6 environmental interests couldconstitute suicient in/ury to coner standing, +ut a s4eciic in/ury to a

s4eciic 0 must +e alleged 0 himsel must also +e in/ured) see+ierra )lub v- >orton; !5/ )

d. 0ast ex4osure is not enough, 0s must show a 4resent or imminentin/ury see Luan v- Befenders of ,ildlife; !!/; pg "! %E+.reCuired a federal agency to consult *6 it before funding proectslikely to &arm endangered species D Ps *ant t&e rule to applyinternationally D Ps stated t&at t&ey visited foreign sites to studyspecies t&reatened by .GB proectsF but since Ps did not mention any definite plans to return to t&e sitesF standing *as not granted()

e. Procedural In+ury 5 When the statute gives 4eo4le a right to haveagencies consult w#ecretary 5 its like a mini:ad/udicatory4roceeding 6 i agencies don-t consult, then citi>ens don-t get to4artici4ate and that-s +ad see Luan)

i. Ca/ority says that i we let a 4rocedural in/ury +ecome anin/ury in act we-d essentially +e violating se4aration o4owers +c it would +e transerring rom the 0re> to thecourts the 4ower to take care that the laws are aithullyexecuted

ii. I $ongress were ree to cut o case 6 controversy +y givingeveryone in the world standing 6 let the court intervene we-d+e letting the court overseereview everything the agencydoes 6 that would usur4 Exec 4ower

. Citi,en Standing i. $oncerned citi>ens only have standing i they have a

concrete 6 4articulari>ed in/ury in act as well see +teel )o-v- )3E ; !!2; pg #" %a citi4en *&o is simply concerned

*6an issueF like pollutionF does not &ave standing()ii. 7E) v- .kins; !!2; pg ## %7E) said .GP.) *as not aP.)F Ps &ave standing to sue 7E) on grounds t&at .GP.) isa P.) t&at must disclose information(

1. $onstitutional #tanding 5 id 0 allege an in/ury inact? KE#

a. KE#, it is a concrete 6 4articulari>ed in/uryand not generali>ed

+. In inormational in/ury is a /udiciallycogni>a+le in/ury in act

#e4aration o 0owers: O-$onnor in .llen) 5 when

courts take a case wout4ro4er standing, it can +e ausur4ation o executive4ower

: $ase 6 controversy

re3uirement is a limitationon /udiciary

I 0 satisies Art. III

standing and thestatute contains aciti>en suit 4rovision,4rudential standing isautomatically satisied


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Administrative Law Exam Outline*H

c. ot generali>ed +c /ust +c an in/ury iswidely shared does not mean 0 does nothave Art. III standing

*. 0rudential #tanding 5 Is 0-s alleged in/ury win the>one o interests 4rotected +y the statute? KE#

a. Catter o statutory inter4retation

+. Cust +e a grant o standing +y congresssaying an aggrieved 4erson can +ring suit*. $ausation

a. I the line o reasoning +etween the -s +ehavior and the allegedin/ury is too attenuated, then 0-s in/ury is not airly tracea+le andstanding will not +e ound see .llen v- ,rig&t; !21; pg 2 %Ps donot &ave standing b6c t&e inury caused by t&e GR+ proceduredenying t&eir kids t&e rig&t to attend a racially desegregated sc&oolis not fairly traceable to B@s be&avior()

+. ;the links in the chain o causation +etween the challenged conductand the asserted in/ury are ar too weak or the chain as a whole tosustain 0-s standing< O-$onnor-s ma/ority o4inion)

c. #tevens dissenting in Allen) argues that elementary economics ocost raising leading to a change in +ehavior is suicient to esta+lish a

solid causal link and allow standing8. Bedressa+ility

a. ot discussed much 5 think a+out relationshi4 to 4olitical 3uestion+. ;as much as it is airly tracea+le, it is redressa+le<

d. Relations(i, bet*een Constitutional and Prudential Standingi. 9wo #te4s

1. Dirst determine whether 0 alleges an in/ury in act*. I 0 does, then the court examines statute or constitutional 4rovisions to

determine ;whether the interest 0 seeks to 4rotect is argua+ly win the >oneo interests to +e 4rotected +y the statue or constitutional 4rovision<

ii. +ee .B.P+O v- )amp; !50; pg /! %sellers of data processing services could &ad standing to sue t&e )omptroller of )urrency from aut&ori4ing banks to compete *it&t&em b6c %( t&e )omptroller@s ruling *ould cause t&em an economic inury in factF

and %/( federal banking legislation suggested t&at )ongress desired to protectcompanies from &aving to compete *6banks for nonIbanking business and so Psclaim *as *6in t&e 4one of interests protected by t&e statute(

e. Prudential Standingi. Yone o Interest 9est a matter o statutory inter4retation)

1. Is the 0 argua+ly win the >one o interest 4rotected +y the statute?*. What does ;>one o interest< actually mean?

a. Bestrictive 5 >one test is the same as the merits in3uiry +eore AA0#O do you have a legal right, does the statute single out and4rotect you)

+. 2road 5 >one test is /ust 4u and takes it too ar 8. Yone o interest test 4revents standing only when 0-s interests are so

marginally related to or inconsistent wthe 4ur4oses im4licit in the statute that

it cannot +e reasona+ly assumed that $ongress intended to 4ermit the suitsee )larke v- +G.; !25 )ii. $ongress does not have to have intended to +eneit 0, they only have to ex4ress an

intent to 4rotect an interest and 0-s in/ury is win the sco4e o that interest seeNational )redit 8nion .dmin v- 7irst National 3ank ? Trust )o-; !!2; pg $" %banks&ave standing to sue credit unions to prevent t&em from stealing customers underreinterpretation of 7)8.()

II& Revie*abilit)a. Final Agenc) #ecisions Presum,tion o/ Revie*abilit)

#tanding isse4arated rom

the merits in3uiry


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Administrative Law Exam Outline*N

i. 0resum4tion o reviewa+ility or all inal agency actions unless the issue is committedto agency discretion or i review is 4recluded +y statute see .bbott Labs v- 9ardner;!$5; pg 2/ %7B. rule saying drug makers &ave to put establis&ed name%ibuprofen( on bottle *6proprietary name %.dvil( is revie*able(; see also .P. 50)

+. Non1en/orcement #ecisions Presum,tion o/ NON1revie*abilit)i. o reviewa+ility +c agency has ex4ertise to decide these 3uestions see :eckler v-

)&aney ; !2# )1. 2rennan-s issenta. on:enorcement decisions could +e reviewa+le i

i. $ase involves +ri+eryii. $ase involves $onstitutional issuesiii. An agency reuses to enorce a regulation lawully

4romulgated 6 still in eect+. istinction +ased on legitimate vs. illegitimate reasons why an

agency decides not to enorce*. Carshall-s issent

a. Would allow courts to review, +ut with a great level o deerencec. Agenc) Re/usal to Initiate Rulema5ing Presum,tion o/ Revie*abilit)

i. 0resum4tion o reviewa+ility or agency decisions not to engage in rulemaking see7arm*orkers v- 3rock; !25 )

1. Beviewa+le +c the agency is acting there is an airmative decision) sothere is a decision ca4a+le o +eing reviewed

ii. 2ut, the review will +e very deerentialIII& Timing

a. Ticor Title Gnsurance )o- v- 7T); !25; pg //! %Ticor c&allenged t&e constitutionality of7T)@s aut&ority to prosecute t&em for unfair competition; Ps soug&t an inunction to keep7T) from coming after t&em D case dismissed(

+. Ri,eness ocus on /udicial +ehavior @. Mreen) O9 BI0E so O BEGIEWi. 9est

1. Is the issue it or /udicial decision?a. Is the issue inal no urther agency action)?a. Is the issue a legal 3uestion i.e., acts are already settled)?

*. Will there +e a hardshi4 to the 4arties i review is withheld or delayed?

ii. Is it it or /udicial decision? KE#1. It is a constitutional 3uestion 6 a inal agency action

iii. Will there +e a hardshi4 to the 4arties i review is withheld or delayed? O1. Litigation $osts...

a. o4e, Litigation costs alone are not suicient hardshi4 to make acase ri4e

*. amage to re4utation...a. o4e, o damage to 9icor-s re4utation

i. A++ott La+s 5 drug com4anies ace damage to re4utation+c they have to make a decision to either violate or change+ehavior

ii. 9icor 5 doesn-t ace damage to re4utation +c their illegal+ehavior has already ha44ened 5 i the D9$ doesn-t come

ater them, someone else couldc. Finalit) ocus on agency +ehavior @. Williams) O9 DIAL so O BEGIEW

i. @urisdiction re3uirement rom A0A % &'1 5 /udicial review o all ;inal< agency actionsii. * exce4tions to when non:inal actions could +e reviewa+le

1. $ase is a ;clear right< 5 outright violation o clear statutory 4rovision*. Giolation o +asic right esta+lished +y a structural law

d. E'(austion ocus on 4arty +ehavior @. Edwards) I-9 EZ7A"#9 ACII#9BA9IGE O09IO# so O BEGIEW

i. 2ased on su+stantive doctrine o avoiding unconstitutional 3uestions


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Administrative Law Exam Outline8'

ii. $ourts would much rather hear the challenge ater you exhaust your administrativeo4tion, +c then you will have a inal agency action and your issue can +e ready or

/udicial reviewiii. Exce4tion 5 0s can +y4ass agency ad/udication go straight to court i the agency

4roceeding wouldn-t have +een a good way to solve the 4ro+lem see .ndrade v-Lauer ; !21)

administrative law - molot - fall 2003_3

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