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39 Cards in this Set

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Non-Delegation Doctrine
- A boundary to what Congress can delegate to agencies
-Agency must be based on an intelligible principle
-Judiciary does not receive these challenges well
Misretta
Represents a signal that non-delegation will not be well received
-Deals with the Federal Sentencing Guidelines
-Blackmun writes the opinion
Appropriations Clause
-Is a semi-influential way for Congress to influence agencies or decrease their effectiveness, seemingly no limit on how specific these instructions can get(Case?)
Statutory Overrides
=Most straight-forward way for Congress to control agency discretion
-Override or amend the statute
Legislative Vetoes
-Makes agency discretion conditional on approval by Congress, House or Senate, or Legislative committees
Kinds of Agency Employees
-Mere Employees
-Inferior Officers (Subject to some Executive Removal)
-Officers (Removal by Executive)
Congressional Regulation Enforcement Act
-Statutory Override
-Complies with article I reqs
-Clunky, rarely used
Morrison
-Functionalist Opinion by Rehnquist
-Do the removal restrictions unduly hamper POTUS ability to exercise executive authority
-SCALIA DISSENT
-Formalist
-Unitary Executive
ALJs
Not inferior officers, just mere employees
-Make suggestions and recommendations, do not hand down final decisions
-Landry
Buckley
-When an employee is involved with agency decisions which require discretion and affect individual rights through rules or adjudications, considered an officer
Encroachment v. Aggrandizement
Encroachment: Congress limits POTUS power and doesn't give it to anyone, ultimately falls to the courts

Aggrandizement:
Congress limits POTUS power and takes it for themselves

Examples?
Unitary Executive
-Scalia likes the idea
-Any impingement on the executive power is unacceptable
-In terms of removal or otherwise
OMB/OIRA
-Way for executive to control all agencies
-Was abused after first instituted
-Subjects everything to a cost-benefit analysis, fight becomes about how you do it
SCHOR Factors
-Evaluate permissibility of Agency Adjud.
-Four Factors-
Power within the jurisdiction
Breadth of the jurisdiction
Origins/Importance of the adjudicated right
Purpose behind Congress' choice
Adjudications vs. Rulemaking
Londoner (Adjudication)
-Fairly small group of people are affected
-Ruling depends on their facts
-Triggers US Con Rights (DP)
Bi-Metallic
-General applicability, prospective outlook
-Citizens do not have a right to participate in the legislative process
Sources of Law Regulating Agency Procedure
US Constitution
APA
Organic Statutes
Agency Self-Regs
Court Decisions: Sup. Ct., DC
APA Main Subjects
Disclosure (552-552(b))
Availability/Timing/Form of Jud. Rev. (701-705)
Scope of Rev (706)
Procedural Reqs (553.556,557)
706(a)
Arbitrary and Capricious

Catch All

Used to review informal adjudications/rulemakings as well as all other actions

Eventually spawns hard look rev (see overton park)
706(c)
-In Excess of Statutory Jurisdiction
-Typically comes down to Chevron Analysis
-Touchy Separation of Powers situation, Congress writes the statutes, Courts review them
-Chevron Step II is the edge of the world here, could stir some shit up
706(d)
-Without observance of procedure required by law

Pre-FECR, pretty tough on agencies, having to do a lot of formal rulemaking
706(e)
-Substantial Evidence
-Only applies to Formal Proceedings
-Anything where a record is produced
-Addresses pure questions of fact
-Real deferential standard, see Universal Camera
Rulemaking (APA)
551(4)
Rulemaking is as “an agency process for formulating, amending, or repealing a rule
Rules are a “whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.”
Adjudications (APA)
551(6-7)
'Adjudication' means the agency process for the formulation of an order
'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing
556,557 Rulemaking
-Some type of hearing is required
-Central Component is Record Creation
-Enables effective judicial review
-Encourages an equitable outcome by giving a chance to be heard
-FECR coins magic phrase "hearing on the record"
553
-Often Referred to as Notice & Comment Rulemaking

-3 Steps, debate over how much each should entail, see Vermont Yankee

-Notice, published in Federal Register of a proposed rule of issue to regulate

-Comment Period: People and interested parties can submit concerns and qualms about the rule, usually in written form

-Issue the rule, provide a general statement of basis and purpose
554
Applies to Formal Adjudication
Creation of a record
Looks pretty much like a jury trial
However, Agencies can write some of their own rules of evidence
No definite triggering language
Informal Adjudications
No APA statute
Some constitutional implications: see Londoner
Seminal Rock Doctrine
Old Standard, City of West Chicago
When courts review an agency's interpretation of their own statute
Agency interpretation is controlling unless clearly erroneous
“No clear intention that Congress intended to trigger formal adjudication process here based
Seacoast Protection League
Adjudication must be a full one unless the statute specifies otherwise
Hybrid Rulemaking
See D.C. Circuit Vermont Yankee
Increased Process under N&C Rulemaking
Notice, Portland Cement Doctrine (Requires any science in the notice include the methodology, survives after Sup. Ct.)
Proceeding, Whatever the court believes is required, oral challenges, etc.
General Purpose and Statement, Needs to enable judicial review, respond to meaningful comments (survives after the Sup. Ct. Decision)
Logical Outgrowth Doctrine (N&C Rulemaking)
-Connecticut Light and Power Co. v. NRC
-If a final rule is logical outgrowth of the original noticed rule, it merely has responded to the comment period and is acceptable
-Rule must be close enough to encourage meaningful participation and reflect reasoned decision making
Exceptions to N&C Requirements
-Interpretive Statements
-Policy Statements
-Agency rules relating to military, agency administration
Citizens to Preserve Overton Park v. Volpe
DOT decides to build a highway through a park
Statutes require the administrator jump through some hoops
Verify there are no “feasible and alternative routes”
Engage in all possible planning to minimize harm to the park

Beginning of the Hard-Look Review
ADAPSO v. Board of Governors of the Federal Reserve
SCALIA OPINION

Deals with finding of facts arising from an informal proceeding

APA indicates that 706(e) “Arbitrary and Capricious” is the standard of review

Operates as a catchall, providing courts with a basis on which to conduct review of minor agency actions in case of abuse or inequity

Pretty deferential standard for the Agency
Universal Camera v. NLRB
FRANKFURTER OPINION
-Substantial Evidence Review
-Requires a balance of the positive and negative evidence on the record
-Cannot examine the positive evidence in isolation
-Standard of Review can turn into an infinite cycle of reinterpretation
Skidmore v. Swift & Co.
JACKSON OPINION

Looks at it as a question of application

The agency has not exercised any real statutory authority here

Thus, views of the administrator should play into the court decision

However, is merely persuasive
Chevron Doctrine 3 Part Frame Work
(1) Has Congress spoken directly on the issue/ Is the statute ambiguous?

(0) Has the agency exercised their legal authority to promulgate the decision?
If not, skidmore persusasion

(2) Is the agency's interpretation reasonable?
(Statutory fit vs. Reasoning Process)
-Statutory fit is a bald assertion by the judiciary
AT&T v. Iowa Communications
SCALIA OPINION
-One of the only decisions where a decision gets killed at step II
-Statutory Fit analysis under CV II
State Farm
JUSTICE WHITE OPINION
-Deals with seat belt regs
-Post Vermont Yankee

-Justifies the hard look review conducted by lower courts