• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/90

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

90 Cards in this Set

  • Front
  • Back

Things that agencies do

Agencies promulgate and apply regulations that translate general statutory directives into concrete requirments or prohibitions
Intelligible principle

This is required in a delegation to an agency.
An intelligible principle cant be too broad, and should sufficiently limit agency discretion. Congress can’t delegate power only to be used in the recipient’s judgment. An intelligible principle does not transfer legislative functions. Congress should provide policies, and establish standards for the agency to implement.
A delegation with an intelligible principle will direct the agency to make subordinate rules w/in prescribed limits.

Immigration and Naturalization Service v Chadha (1983)

Congress chose to delegate to executive branch/ Attorney General. This case says that Congress can’t control the administration of laws by Legislative Veto. This one house veto was legislative action subject to Bicameralism and Presentment. Congress’ action didn’t fall w/in provisions of the constitution allowing one house action, and this undermined the system of checks and balances. Also, Congress can’t take legislative action (trying to control the administration of laws) after delegation.
-Congress must abide by the delegation of authority until that delegation is legislatively altered or revoked.

4 provisions in the constitution that allow one house of congress to act alone

a. House has the power to initiate impeachments;
b. Senate has the power to conduct trials following impeachment on charges initiated by the house;
c. Senate has power to approve/disapprove presidential appointments; and
d. Senate has power to ratify treaties negotiated by the president.
What is legislative action?

Legislative action has is action that has the purpose and effect of altering legal rights, duties and relations of those outside of the legislative branch.

It is subject to bicameralism and presentment (Art 1 §7 cl 2)
Bowsher v Synar (1986)

-This case tells us that Congress cannot reserve for itself the power of removal (and limit the president's power of removal) of an officer charged with the EXECUTION of the laws except by impeachment. Bowsher did not hold that it is ALWAYS unconstitutional to limit the removal power of the president.
-Congress can’t delegate execution of laws to someone beholden to congress (or to itself). The comptroller was in the GAO and was a confessional entity. Congress was delegating an executive function to itself.
- Note that the only express provision respecting removals of officers in the constitution, is in Art 2 §4 which provides for the removal of the President, VP and OFFICERS by Congress only upon impeachment by the House and conviction by the Senate (on the grounds of treason, bribery, high crimes or misdemeanors).

Article 2 §2 cl 2

The appointments clause: The President nominates and by and with advice and consent of senate shall appoint ambassadors, public ministers and consuls, judges of supreme court, and all other officers of the US, whose appointments are not otherwise herein provided for, and which shall be vested by law, but congress may by law vest the appt of such inferior officers, as they think proper, in the president alone, in the courts, or in the heads of departments

Buckley v Valeo (1976)

Provided the "Significant Authority Test" for determining if a person is an "officer."
Congress vested in itself the power to appoint the Federal Election Commission members, and this was inconsistent with the appointments clause bc the commission members were "officers" of the US. The commission performed a significant governmental duty exercised pursuant to a public law. Its functions could only be discharged by persons who are “officers of the US.”
SIGNIFICANT AUTHORITY TEST
A person is an officer (rather than an employee) if they exercise significant authority pursuant to the laws of the United States (ex-delegated by statute).
Officers of the United States

must be appointed in the manner prescribed by Art 2§2 cl 2 (unless otherwise provided for). If they are not appointed properly, then they are not officers of US.
-No class or type of officer is excluded from the requirements bc of its special functions.
-does not include employees: lesser functionaries that are subordinate to officers of the US.
-Not all officers exercise executive power: judges of the supreme court also exercise power under the laws of the United States
Sources of Administrative Law

-Constitution
-Federal Administrative Procedures Act (APA)
-Organic Statutes
-Other substantive statutes
-Generally applicable procedural statutes
-Executive Orders and other internal executive branch guidance
-Other self imposed procedural rules
-Federal Common Law
Art 2 §3: take care clause

-gives president authority to oversee executive power (timeline)
-this clause implies that the president also has the power to remove officers
-EOs are authorized by take care clause

Judicial review
Process by which courts make final determinations on statutes and review agency action
non-delegation doctrine
-congress cant give away purely legislative power or policymaking to the other branches
-Is grounded in the Art 1 vesting clause: All legislative powers herein granted shall be vested in a Congress of the United States.
-only twice relied on to invalidate a statute as unconstitutional.
Panama Refining and Schechter Poultry cases
Canon of structural interpretation
when a law gives a new right or a new power and provides a specific mode of executing the power or enforcing the right, the fact that a special mode is given will be regarded as excluding, by implication, the right to resort to other modes
JW Hampton, Jr & Co. v US
Provided the Intelligible principle test.
Congress set explicit prices initially and delegated authority to president/agency by the Tariff Act to change rates (duties).The Tariff Act contained an intelligible principle bc it contained 4 specific criteria for changing rates. Congress clearly described the policy and plan, and also authorized a member of the executive to carry it out
ALA Schechter Poultry Corp v US
congress delegated policy making (create “codes of fair competition”) to private citizens and the president (to approve and prescribe w/o an intelligible principle. There was no intelligible principle here bc “fair competition” was not defined.President’s discretion was not limited enough. Congress cant transfer its legislative function by failing to establish a standard of legal obligation.
Classes of Officers
Principle officers: these are nominated/selected by the president and conf by senate.
Inferior officers: Congress can vest appointment of inferior officers in the president, the courts, or in dept heads. The heads of depts are in the executive branch.
(See Morrison v Olson for the test to determine whether principle or inferior)

Conflict between the Article 2 "vesting clause" and Article 1's "necessary and proper clause"
The executive power of the president takes priority over the authority granted to congress in the necessary and proper clause as far as appointments of officers. Congress has no authority under necessary and proper clause or anything else to specify a method of appointment for “officers" that differs from Art 2§2 cl 2
2 kinds of agencies in the modern administrative state
1. Executive branch agencies
2. Independent agencies:
-run by commissions
-Officials appointed by the President subject to party restrictions, staggered terms, removal restrictions
-can say they are really w/in executive branch
-purpose of independent agencies: to insulate some agencies from political influence
Myers v United States
NO LONGER GOOD LAW. This case deals with the removal of an "officer." The Postmaster’s removal was subject to advice and consent of Senate.The Myers Court made the question of the constitutionality of a restraint on the President's power to remove federal employees depend on whether the employee was within the "executive branch." That inquiry is no longer relevant; the test for the constitutionality of removal restraints is now given in Morrison v. Olson
Humphrey’s Executor v US (1935)

NOT GOOD LAW. Like Myers, Humphrey's was a case about "removal". Humphreys made the constitutionality of a restraint on the President's removal powers depend on whether the official in question was a purely "executive" official. It questioned the character of the office. The Humphrey’s ct said the removal restriction was valid bc the FTC was “quasi legislative” and “quasi judicial”- it wasn’t executive enough for the president to have a illimitable removal power. That is no longer the law. Humphrey's held that some entities are "quasi-legislative," even though they exercise important powers granted to them by federal statutes. That way of conceiving of federal entities is now no longer good law. Following Chadha and Bowhser, no entity may exercise power under a federal statute if that entity is within the legislative branch
Morrison v Olson (1988)
Addressed appointments and removals. provided the 4 step TEST to determine if an officer is a principle or inferior officer, as well as a balancing test for determining the constitutionality of a restriction on the president's removal power.
4 step TEST to determine if an oficer is a principle or inferior officer
1. Is the officer subject to removal by a higher executive official?
2. Does the officer have limited duties? (does he make policy or have significant authority?)
3. Does the officer have limited jurisdiction?
4. Does the officer have limited tenure?
The modern balancing test of the constitutionality of congress putting limits on the president’s power of removal
1. How important is the person to the president’s ability to fulfil his duty to execute the laws?
2. How limiting is the limitation (on the president’s ability to perform his duties)?
APA
contains procedural rules for agencies
Agency:
Each authority of the government whether it is w/in or subject to review by another agency. Does not include Congress, Courts, military authority, etc
Person:
Includes individuals and corporations

Party:
Includes a person or an agency named or admitted as a party…in an agency proceeding
Rule:
Agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization [or] procedure…of an agency
-is forward looking
Rulemaking:

The agency process for formulating, amending or repealing a rule
-is future oriented/prospective
-all RM is on the record, even though formal RM is only specifically req’d to be on the record. Reason- JR is of the record.

Order:
The whole or part of a final disposition of an agency in a matter other than a rule making. May be affirmative, negative, injunctive or declaratory in form. Includes licensing
Adjudication:
The agency process for formulating an order (final disposition). It concerns past events (apply existing policy/law to facts to determine present rights and liabilities. It results in a finding.It can be future oriented in a way: the adjudicator may announce policy in a case that may be applied and will be binding in future cases, but must be applied to the party before it

License
includes an agency permit, certificate, approval,…statutory exemption or other form of permission

Agency Proceeding:
Agency processes of rule making, adjudication and licensing.

Agency Action:
includes agency rules, orders (and licensing)…or failure to act
Ex parte communication:
oral or written communication not on the record for which reasonable prior notice to all parties was not given
§ 553 applies to what?
RULE MAKING (Informal and formal).

What is exempted from rulemaking requirements of 553 ?
i. when a military or foreign affairs function of the US is involved
ii. when a matter relating to agency management or personnel is involved
What does 553b require of the Notice of Public Rule Making?

1. statement of time, place and nature of public RM proceedings
2. reference to legal authority under which rule is proposed
3. either the terms or substance of the proposed rule OR a description of subjects involved
That should be published in the Federal Register
What is exempt from the NOTICE requirement of 553b?

1. interpretive rules, general policy statements, rules of agency organization, procedure
2. situations where the agency finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest (good cause exception)
What does 553 c require of an agency after the NPRM that applies to informal rule making only?
1. the agency should give interested persons the opportunity to participate and submit written data, views or arguments with or without opportunity for oral presentation.
2. The agency should consider relevant matter/data presented.
3. After considering (and if it decides to promulgate) the agency should incorporate in the rules adopted a concise general statement of basis and purpose.
What does 553 d require?

substantive rules should be published in the Federal Register at least 30 days before becoming effective
What does 553 e require?
Interested persons have right to petition for making, amendment or repeal of a rule
§ 554 applies to what?
FORMAL ADJUDICATIONS Those required by statute to be determined “on the record” after opportunity for hearing
What are the basic requirements of 554

*Persons who are entitled to notice of hearing should be informed of:
1. the time, place, nature of hearing
2. the legal authority and j/d under which hearing will be held
3. the matters of fact/law asserted
*agency shall give interested parties the opportunity to submit facts, arguments, etc
*The presiding employee (usually ALJ) at the reception of evidence pursuant to 556 shall make the recommended decision reqd by 557
*rule against ex parte contacts in formal adjudications

§ 556 applies to what?
Formal Rule makings and Adjudications. Hearings required by 553 and 554 to be conducted in accordance with this section (556)
Basic requirements of 556

*who presides at taking of evidence/trial: usually an ALJ or the agency
*what the presiding employee does: rules on offers of proof and receives relevant evidence;makes recommended decisions in accord w 557
*who has the burden of proof: the proponent of the rule or order
*Sanctions, rules and orders can only be issued on consideration of the whole record or parts of the record cited by a party and supported by reliable, probative and substantial evidence
*describes what the formal record should consist of

What does the "record" required by 556 d (which applies to formal rule makings and adjudications) consist of?

testimony, exhibits, papers and requests filed in the proceeding- this is the exclusive record for decision in accord with 557. Nothing else is admitted later.
On JR, agency can only rely on evidence in this record

What does 557 apply to

Formal Rule makings and Adjudications.
Once there is a formal hearing under 556, the ALJ makes a decision (which agency has the power to disregard), and this section gives rules for decision making and ex parte communications.

Under 557, who decides the case in a formal rule making or adjudication?
the presiding employee

Under 557, before a decision is made, parties should have an opportunity to submit what for consideration?

-proposed findings or conclusions
-exceptions to decisions
-supporting reasons for exceptions or proposed findings

Under 557, what should the record show?
The record needs to show the ruling on each finding, conclusion, or exceptions presented.
All decisions should be a part of the record and shall include a statement of:
-findings, conclusions, and the reasons for the same on the material issues and
-the rule, order, sanction, relief, or denial thereof
Under 557, What is the rule against ex-parte communications?

Ex parte communications shall not take place between interested persons and any member of the agency, an ALJ, or other employee who will be involved in the decision making in the proceeding
Formal Adjudication

First, notice of a hearing is given, and parties are given an opportunity for settlement. A formal trial-like adversarial hearing occurs, where the agency seeks to impose a penalty on a regulated party, or is resolving a dispute btwn 2 parties under a regulatory scheme that the agency imposes. This is subject to denovo review by the agency. Denovo review starts from scratch, without deference to the trial court.
Formal Rule Making

An adversarial hearing where the proponent of the rule (the agency) carries burden of proof on contested issues and shows that the rule is supported by evidence. ALJ presides. Interested parties can participate in the agency hearing to present evidence and testimony unless agency concludes they will not be prejudiced by absence of such procedures. The final rule is based on the official record adduced in the hearing.
Triggering language for formal rule making: required to be “on the record. ” See §553 (c)
What does section 702 deal with?
the right to judicial review of agency action
Under 702, who is entitled to judicial review?
a person suffering a legal wrong because of agency action, or adversely affected, or aggrieved by agency act (an aggrieved party is a person affected someway).
IMPORTANT: Judicial review is available when agency action is FINAL. Agency action is final when it can be enforceable w/o additional agency decision making
What is the subject matter of 706?
The scope of Judicial review and the standards of review. Focus on the arbitrary and capricious and substantially evidence standards, which are substantively the same.

If a reviewing court finds that agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accord w the law OR that it is unsupported by substantial evidence, what can that court do?
The court can either hold unlawful or set that action aside OR in the case of agency inaction, it may compel unlawfully withheld/delayed agency action (see 706)

What is the standard of review of informal agency action?
The arbitrary and capricious standard of 706 (2) (a)
What is the standard of review of formal agency action?
the substantial evidence standard of 706 (2) (e)

Describe the arbitrary and capricious standard (the modern "hard look" standard)
The court will ask:
1. Did the agency consider relevant factors?
- these are found in the statute, and are provided by congress
2. Did the agency makes a clear error in judgment?
- The court considers the adequacy of the agency's fact finding process:
-did it explain the evidence available?
-did it rely on contradicted evidence?
- The court considers the explanation given connecting facts to the result reached:
-Was the connection rational?
What is the difference in review of formal and informal proceedings under 706 (2) (a) and (e)?
The contents of the record. With an informal record, almost anybody can put anything in, even the agency itself. With a formal record, the court considers only the evidence developed in formal hearings. things that get into formal record must be do so at hearing where parties are present and can object.
What is the remedy in judicial review?
Reversal
US v Nova Scotia Food Products Corp. (1977)

This case discusses "the paper Hearing Requirement" or the notice requirements implied under 553 (b) and (c). Specifically, during the initial NPRM reqd by 553 (b), the agency needs to disclose the evidence it is relying on so that the agency can can get useful comments and regulate properly. (an agency cant "consider relevant factors" w/o useful comments). Also, in the concise general statement of basis and purpose required by 553 (c), the agency needs to address concerns raised by the comments submitted. The agency should identify facts on which rule is based, and the evidence that supports those facts, and should also explain why alternatives were not chosen.

What evidence does Nova Scotia require an agency to disclose int the NPRM?
The evidence on which rulemaking proposals are based. This includes the evidence the agency has in possession at time the notice of proposed rule making is published in the Federal Register. (Often an agency will base its final rule on data or other material that the agency acquires after publication of notice, even material submitted by parties as part of the public comment process).

Chocolate Manufacturers Association v Block (4th Cir. 1985)
This case discusses the adequacy of a notice of public rule making required by 553 (b), and when supplemental notice is required. A revised final rule that replaces a proposed rule is in accord w the APA if it is a "logical outgrowth" of the proposed rule. Otherwise, the agency may have to start a new round of notice and comment. (This case implied supplemental notice requirements under 553b, so that the obligation under 553c to provide opportunity for participation could be met).
The "Logical Outgrowth Test"
1. the final rule should be in character with the original scheme of the proposed rule. (a new round of notice and comment may be needed to comply with the notice req of 553 (b) if the comments received during the comment period lead to a rule opposite of the proposed rule).
2. the final rule should be a logical outgrowth of the proposed rule (a final rule is a logical outgrowth if interested parties could anticipate that a change was possible, and reasonably should have filed comments).
* Note: an agency doesn’t have to identify EVERY possible change, but the case will turn on how well the notice the agency gave serves the policy underlying the notice requirement.

Securities and Exchange Comm. v Chenery Corp (1947)
This case discusses an alternatives to announcing policy by notice and comment rule making, namely adjudication. An agency can announce and impose new policy (filling in a statute) in an adjudicative order. The policy is retroactively applied to the party before the agency and may be binding on future parties. (Note: the agency’s action should be based on substantial evidence and the agency should have statutory authority to make the policy).

The test applied to determine if the retroactive application of a policy announced in an adjudication is unlawful.
A balancing test: If the mischief (of producing a result contrary to the statute or to legal and equitable principles) is greater than the ill effect of a retroactive application, then it is not a retroactive application condemned by law.
How is policy announced (and applied) in a prior adjudication applied in a subsequent adjudication?
The agency would cite the prior adjudication as precedent, showing the facts are similar enough, and the party would try to distinguish itself. (Note: the agency needs to sit through evidence in each adjudication, but with a rule making, this only needs to be done once if rule survives JR).
National Labor Relations Board v Bell Aerospace Co. (1974)
This case affirmed Chenery. It addressed whether the NLRB should proceed by rule making or adjudication when applying a policy formulated for the first time.
Rules: 1. The agency has the choice to proceed by RM or ADJ announce policy
2. The policy announced needs to be applied to the party before the agency if it is going to be applied to subsequent parties.
3. There is limit on agency freedom to announce policy by adjudication: if reliance on adjudication amounts to abuse of discretion under 706 (2) (a).
-it would be arbitrary and capricious to announce policy, not apply it to the party before the agency, and then apply that policy to the next party.

Ethyl Corp v EPA (DC Cir. 1976)
This case is from the district court and deals with judicial review of agency rules, specifically the arbitrary and capricious standard. Different views were presented in that case for how arbitrary & capricious review should be performed. The first opinion in the case states the modern "hard look" approach to judicial review, which would later be adopted by the Supreme Court in the State Farm case.

The "hard look" approach used in Ethyl Corp v EPA to determine if agency action is arbitrary and capricious.
1. Did the agency consider relevant factors?
2. Did agency make clear error in judgment?
a. did the agency follow a rational/adequate process in finding facts (the agency should explain evidence considered and how it found facts)
b. did the agency rationally connect the facts to the result reached (the agency should also explain why the facts it found support its decision. It should consider alternatives and explain why they don’t work in the concise general statement of basis and purpose)
Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc. (1978)
In this case the court decided if a procedurally oriented approach to judicial r was permissible.
This case said that courts don’t have the authority to impose procedures in addition to those in the APA, statutes, and the agencies own self imposed rules. If the agency action was informal RM, and the agency does the minimum req'd by 553, then that is sufficient (if not arbitrary and capricious).
The agency needs only sufficient notice and comment, publication of final rules and concise general statement of basis and purpose 30 days before taking effect, etc.
Policy reasons for not imposing additional procedural requirements on agencies
1. Agencies cant predict procedures courts will think are appropriate so agencies will adopt formal proceedings, requiring compliance w 556 and 557 to avoid reversal. This would nullify the advantage of informal notice and comment RM.
2. Courts are criticizing from a position of hindsight in their review by finding fault w procedures on the basis of the record produced by those procedures rather than the information the agency had when it made procedural choices.
3. courts will tend to assume that requiring additional procedures (those giving interested parties more ability to participate) will result in a better record for review.

What is the standard of review for repeal of a rule/regulation?
The arbitrary and capricious standard also applies. Removal of a rule/regulation does not alter the standard of judicial review (it is not the same as inaction/refusing to regulate). An agency rescinding a rule needs to give a reasoned analysis for the change.
Motor Vehicle Manufacturers Association v State Farm Mutual Auto Ins. Co. (1983)
This case gives the modern “Hard Look” standard. Under this (arbitrary and capricious) standard, the ct doesn’t substitute its judgment for the agency’s. In sum, the agency should consider relevant data and articulate a satisfactory explanation for its action including a rational connection b/w the facts found and the choice made. The NHTSA did not consider obvious alternatives (requiring seatbelts that don’t unhook). The agency ignored relevant evidence when it quickly rejected the possible benefits of using detachable belts. The fact finding was flawed.
The modern "hard look" standard from the State Farm case
1. Did the agency consider relevant factors?
- these are found in statute, and are provided by congress
2. Did the agency make a clear error in judgment?
- the court considers the adequacy of the agency's fact finding process (did the agency explain the evidence available? did it rely on contradicted evidence in finding facts?)
- The court considers the explanation given connecting facts to the result reached (was the connection rational?)
(* also the agency should not ignore relevant evidence, consider obvious alternatives and if they are rejected, should explain why)

What is required in a Notice of Public Rule Making (NPRM) under 553 (b)?
NPRM should be published in the FR and should include: 1. statement of time, place and nature of public RM proceedings; 2. reference to legal authority under which rule is proposed; and
3. either the terms or substance of the proposed rule OR a description of subjects involved. NOTE: the NPRM usually includes a draft of the rule and should be very detailed. The agency should disclose exactly what it is trying to do and what evidence it is relying on, or there might be a failure of notice. (See Nova Scotia)
What is exempt from the NPRM requirement in 553 (b)?
interpretive rules, general policy statements, rules of agency organization, procedure (also the "good cause" exception).

What is required for the Concise General Statement of Basis and Purpose (553 c)?
The rules that the agency adopted are incorporated into this detailed statement in which the agency explains the decisions it made. Here the agency needs to address important issues raised by comments submitted during the comment period, and explain why alternatives were not chosen. The agency should identify facts on which rule is based, and explain what evidence supports any findings of fact. If issues of commercial feasibility are raised, the agency should explain its choice, (why other considerations should prevail) even if it makes a commercially infeasible decision. The agency explains how the rules are consistent with statutory authority. If the agency does not provide such an explanation 706 (2)(a) may be implicated.
Licensing

A license comes from an "order", which is the result of an "adjudication". Licensing is also considered to be an "agency proceeding." A statute should grant authority for licensing, but before an agency grants licensing, it should have rules of procedure in place. Those procedural rules are not subject to 553.

Examples of Imaginative Reconstruction

Riggs v. Palmer---(Legislature would've excluded murderers if they had thought of it)



Marshall Dissent (Posner)--Legislature couldn't have possibly meant including paper; either sloppy or uninformed



Brogan Dissent (Stevens)---Congress wouldn't have included exculpatory no if they had considered it



Bock Laundry--Congress obviously didn't think of symmetrical application in Civil cases, so must have meant it only to apply to civil cases.

Ejusdem Generis

General terms following specific terms are construed in light of the list

Expressio Unius (TVA Hill)

The mention of one thing means exclusion of the other;


*TVA Hill analysis showed exception for other circumstances but not any related to the dam, so the text ultimately won.

Noscitur a Sociis (Babbitt v. Sweet Home Scalia Dissent)

Words in a list have a common meaning/known by companions.


*Scalia said that all other definition of harm have to do with direct/intentional harm, and so under NAS harm should be interpreted in similar light (not indirect, which is was majority decided).

Canon of Absurdity

Statutes should be construed to avoid absurd results. In Green v Bock Laundry, majority found that statute only pertained to criminal defendants.



*Scalia's concurrence argued that when the text was ludicrous one should look at legislative history and adopt the interpretation that does the least violence to the text.



*Takeaway: Textualists require more than a harsh result, they need a deviation from tradition or better evidence of Congress' intention than of the background norm.


Stare Decisis

"Sometimes it's more important to be settled than right (Larsen);" Relevant case is Flood v. Kuhn