Outline - Admininstrative Law

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ADMINISTRATIVE LAW OUTLINEWright

Chapter 1: Introduction

Admin lawThose legal principles that define the authority and structure of administrativeagencies, specify the procedural formalities that agencies use, determine the validity of

administrative decisions, and outline the role of reviewing courts and other organs of govt in theirrelation to administrative agencies.

Collective goods problem: rather than contributing to a drug safety research fund, Wright sitsback and watches others spend their $. Wright wants to wait for externality (spillover).

o How do we make sure drug is ok before we sell to the public?

o Lighthouseexample: its impossible to put .50 in the slot to see the lighthouse. Under

the technology of lighthouses cannot exclude non-paying persons. Once it is up andrunning, you cant exclude free riders. Classic collective good: you use it and it doesnttake away from others use. More than one person affected. How do you negotiatethose rightstort law would be too confusing in this instance.

Transaction costs here: so it may be most efficient for the govt to regulate whatthe mills can and cannot do.

When to apply govt solutions To control a natural monopoly

Get so dominate they can add new clients at lower rates than competitorsex. IPALCO cannot just raise rates, need govt approvalInformation problems: need to compensate for inadequate informationconsumers need to know enough to make a purchaseex. food labels, govt requires certain things be included on food labelsIf do not want to pay for it still okay, most people will so you will be a free rider (RX drugs)Collective goods (used by everyone, ex lighthouse): need to provide the right levelGet same amount of use out of the product, not like eating a peach pie-if I eat some that is less left for

youCannot exclude someone from using a collective good if did not pay for itExternalities-spillover effects: negative (bad), positive (good)

ex. Gary steel mill emissions emissions getting on laundry of nearby landowners; damage minimal, notworth it to negotiate

Have two interactive activities (laundry and making mills), mill not paying these costsFamilies are not receiving any money from Ford when they purchase the steel, so govt imposes

regulations re these spillover effectsNot living in a market situation all the time: who controls the supply and demand in these situationsex. Doctors: they control the supply and demandSee book for more explanationRedistributionTaking from A and giving to Bex. social security, and social security for disabledNot really saving for the future, really going to someone nowPaternalism

ex. seatbelt laws, helmet lawsGovt will take care of you if there is an accident so they want to lessen chance of injury

How the Government Regulates

Formal Government RuleResult of formal rulemaking process

Informal Government RuleResult of informal (notice and comment)

rulemaking process (Section 553 rulemaking)

Formal Government Adjudication Informal Government Adjudication

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Some activities are formalsome are informal. There is also rule-making and adjudication. APA regulates in those 4 manners.

1177-78basic definitions.o Definition of rulecan be broad or narrow. Has to be offuture effect. Cant be a

retroactive rule.

Formal ruleresult of a formal rule-making process

Informal ruleresult of an informal rule-making processaka notice andcomment rule-making. Aka: 553 rule-making

1. Most rule making is informal, faster2. Notice and comment requirement

a. Notice of proposed rule in federal register as well as adescription of what the rule is to accomplish

b. Time for public comment is allotted; do not need standing tocomment

c. Agency not required to respond to all comments, only major

ones, may have more than one round of commentsd. Reviewing courts will focus on whether the agency provided

a concise statement of the rule with different standards ofreview

Hard look review: giving teeth to the review process; making sure theagency does everything in absolute detail, not giving any deference theagency

Substantive Rulesbig distinction between these and interpretive. These haveforce and effect of actual law. Binding on regular people. These have to gothrough notice and comment procedures under 553.

Interpretive Rulesdo not have force and effect of law by themselves. Cantfine or put someone in jail on the basis of interpretive rule. Interpretive rule is

supposed to interpret the real law. Tells you what the agency thinks the law is.Do NOT have to go through 553 process b/c they arent the law. The way the agency sets itself upcreated by statute.

o Organizational rules do not have to go through APA. Not the law.

o Agencies have to be authorized to exist. Must be given several powers. Powers come

from Congress. Congress takes it upon itself to go through presentmentbicameralism.FCC must be created by statutecalled an organic statute. Congress gives charge toagencygo get em tiger. Promote the public interest. Very broad charter.

See p. 1177APAlays out differences in matrix.

Classic Regulatory Tools (p. 13)o More than one way of doing it

o Cost of service ratemakingpublic utilitieso Allocation in accordance w/ a public interest standardwhich will serve public

better? TV/radio licenseso Standard Settinglimitations on how much you can pollute; clean air act.

o Historically based price settingrefers to things like wage and price freezes imposed

on the govto Screening or Licensingbar exam

o Fees or Taxesregulate how many people go to park by increasing fee

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o Provision of Informationnon-coercive; standardized; food manufacturers have to list

various nutritional componentso SubsidiesGovt helping pay for law school

o Non-coercive Efforts to produce cooperation through moral suasion or political

incentivesSmokey the Bear

Chartp. 31 How much it costs to regulate various bad things. Listed by cost-effectiveness. Most effective:

regulating unvented space heaters. Not effective: formaldehyde occupational exposure limit.Chart involves premature deathsmore than bad things in life than death (disability, injury).What counts as a premature death?

p. 34 Refers to recent SC cases:

o Heckler v. CheneyGive agencies freedom from judicial review when the agency does

not acto Vermont YankeeLimit degree to which courts can impose procedural requirements on

agencies Court cannot impose more procedures on an agency (second guessing) but

other ways can:

Congress [federal statutes]can always require an agency to doanything it wants procedurally Congress writes the statute from whichthe agencies derive their power

Constitutionposes requirements on agency procedures Due ProcessClause

Agencies can bind themselves to their ownproceduralrules notrequired by congress or constitution, but agency has said this is the waywere going to do things procedurally

o ChevronRequire the courts to pay particular attention or defer to agency interpretations

of statutes (give substantial weight to what agency has done) Court can adopt two views:

Deferential: rubber stamp what the agency has done, courts go alongwith whatever decision the agency has made

Aggressive/less deferential: agency substitutes what it thinks for whatthe agency has done, second guessing agency decision

APAp. 1177

Adjudication is opposite of rule-making

Outcome of adjudication is an order

552The Freedom of Information Act (FOIA) p. 11869 Exceptions to FOIA (know these)

553Rulemaking (notice and comment rulemaking); Has to publish a notice in FederalRegister in advance that its going to go into rulemaking. Must give people then lead time to

responddone w/ comment. Congress has to authorize the agency to engage in rulemakingagency must specify the statute that gives them the OK to make a rule.

o This process does NOT apply in case of interpretive rules, general statements of policy,rules of agency organization

Hard look doctrine (Judicial Review)o Refers to the attitude that the judge takes when they are looking at an informal rule

553o Applied under standard of review-- 706. Cant be arbitrary or capricious. The more

demanding it is, the more of a hard look it is.

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o Or, by hard look, it means your concise statement of the rule must be extensive. (553)o Can also apply it not just to concise statementyou can apply it earlier to the notice and

comment provision.

554Adjudication

Formal adjudicationbasically like a trial. We have to get the rules for informal adjudication from

somewhere other than the APA. Suppose you had an informal adjudicationhow would you feel if you were an undocumented

alien and you are picked up and a case is brought against you? How would you then feel if theguy who brings you in then judges you? Not enough humans here. You want different peopleinvolved.

556Hearings

Generally, unless specified by statute, the burden of proof (rulemaking or adjudication) is borneby the proponent of that rule or order.

Any oral or documented evidence may be receiveddont have to worry about hearsay rules.701Judicial Review

As long as theres somebody w/standing, you are going to get JR UNLESSo (a) 1) Statues preclude judicial reviewexpression by Congress. NOT very common.

You are only going to find a congressional intent like this if Congress has said so w/

unmistakable clarity. Wright thinks the Constitution would be violated if you are failed tobe given JR

o (b) 2) Agency action is committed to agency discretion by law. Very rare case.702Right of Review

Standing under the APA is loose. All you have to be is adversely affected by agency action706Scope of Review

Generally in informal rulemaking, most of the p. 1198 applies: a court is supposed to set asidewhat agency has done if the agency fails any of the tests:

o Arbitrary, abuse of discretiono Contrary to constitutional right, power,o In excess of statutory jurisdiction, authority, or limitations, or short of statutory right-o W/out observance of procedure required by law

o (E)only in FORMAL rulemaking and FORMAL adjudicationmust be supported

substantial evidence in the record as a whole. More demanding standard than just notbeing arbitrary.

The Overton ParkSynthesisAnalysis of Agency Review

Want to put road in or near Overton park. Run road through park or neighborhood? Parkonlydisrupt squirrels. Public parkdont have to may morewe already own it. Because homeshave sentimental value (ex: yearbook)people resist it.

Must be reviewable: must be appropriate for courts to get to the merits of a case Look to section 701 of APA to decide if there is judicial review available. They must have

standing. The presumption is for every final determination of the agency, the aggrieved party canget judicial review:

o Two types where there is NO JUDICIAL REVIEW

Where Congress/statute clearly precludes judicial review; must have clear andconvincing evidence of an intent to do so; bad constitutionally

Look for words like committed to agency discretion. When committedis omitted, there is broader discretion.

Where a statute has committed decision to agency discretion; only when astatute is written so broadly there is no law to apply (ex. presidential pardon, noway to litigate)

6 Standardsp. 430

o Arbitrary, capricious, abuse of discretion, not in accordance w/ law. Lowest level of

review. (Actually varies in its strength)

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o Capricious: GW does not see much difference here than w/arbitrary

o Abuse of discretion or otherwise not in accordance with law: applied when an agency

violates, misunderstands or makes a decision contrary to the lawo Action failed to meet statutory/procedural/constitutional requirements

Statutory: agency only makes regulations pursuant to statutes, may not amendthem

Procedural: Decision must be consistent with agency rules, must follow ownprocedural requirements whether made by Congress or not. Arizona Grocery

o Substantialevidence in the record as a wholemore rigorous review. ALWAYS review

that requires that the decision be made on the basis of an administrative recordmadesolely on the basis of the compiled administrative record. This is a FORMAL proceeding.Acquired more often in adjudicating contexts than rulemaking contexts. Formalrulemaking is rareFL East Coast Railway Case.

o De novoeven more rare. No deference at all. Start all over.

2 Narrow Circumstances: 1) Adjudication and the agencys fact-findingprocedures were inadequatecan trigger de novo. 2) If we are talking aboutenforcing the rule or applying it 3) Usually, you need clear and convincingevidence. (EX: Presidential pardons)

Arbitrary and capricious reviewis neither supposed to be too demanding on one hand orinsufficiently demanding on the other hand. You dont want your decisions substituted by theagency.

o Review should be searching and carefulthis is the HARD LOOK DOCTRINE.

o 2 extremes: must be searching and careful, but its narrow as well.o There is a presumption that what the agency did is not unconstitutionalpresumption of

validity.o 3 ways of applying hard look reviewif its more demanding, its the hard look doctrine.

706Interpreting Arbitrary and capriciouscan make it a high standard forwhat is arbitrary.

553Arbitrary and capricioushave to put notice in the federal record. Couldapply demanding standard to this requirement. Can interpret this rigorously.

553concise and general statement might be construed as being TOOconcise or general.

o If the agency hasnt offered sufficient grounds for its decision, court will not make them up

court isnt there to be helpful. Court wont supply adequate justification. Cheneryprinciple.

Power of agencies to legislate

Non-Delegation Doctrine

By vesting all legislative powers in a Congress of the US, the Const seems to create a non-delegation doctrine

o No provision expressly says Congress cannot delegate its power to otherso However, courts have suggested such a prohibition

Non-delegation at the state level:State ex rel. RR v. Chicago

Facts: Shippers complained to MN RR Commission that rates for milk carried on passengertrains in MN were unreasonably high. Commission decided on an equal and reasonable rate,brought a mandamus action in state court to make the RR obey the order.

Holding: 1)The powers given to the Commission are an acceptable conferring of authority tomake decisions in pursuance of existing law not an improper delegation of legislative authority.

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2) It is constitutional for a statute to deny courts the power to review a determination by anagency, setting certain rates as reasonable.

Court thinking in terms of convenience and mood Not practical for the state legis whom only meets for 60 days to be specific re: freight charges,

should be left to the expert agency Court says there is a difference btwn delegating legis authority and acting pursuant to the law;

can have discretion under and pursuant to the law (W: not fooling anyone, when an agencymakes a decision it is making the law)o Court is relying on authority to MAKE the law (bad) v. under and pursuant to the law

(OK).

Congressional powers; non-delegation doctrine

Too broad a delegation:ALA Schechter Poultry Corp. v. US

RULECongress may NOT transfer to an administrative agency the power to establish thestandards of legal obligations between parties under the regulation of the agency.

Too much discretion was given to the president in approving or prescribing codes Here, the code-making authority was an unconstitutional delegation of legislative power

Not enough guidance herewho knows what unfair competition is. This is delegation gone riot.BAD.

Last time the SC invalidated federal legislation on the ground of overly broad delegationGilberts: NIRA delegation that gave the President power to adopt codes of fair competition incooperation w/ members of an industry. These codes were to set forth schedules of wages and prices,and other rules that would be binding upon entire industries. This delegation was held invalid.

Rationale: The Supreme Court found an absence of standards to guide the President in decidingwhat regulations to impose upon various industries. The court was also heavily influenced by thelack of hearings or other procedures in adopting the codes, and was concerned by the rile ofprivate industry in regulating itselfi.e. that large companies might succeed in having rulesadopted that would harm their competitors.

Modern approach to the non-delegation doctrine, most deferential:

Amalgamated Meat Cutters v. Connally(Nixon price freeze case)

RULEIn order for a delegation to be constitutionally valid, Congress must provide an intelligibleprinciple defining its control and accountability specific enough to enable the courts to ascertainwhether administrative action is w/in its scope

Unlike Schecter, court finds a guiding principle other than w/in the text of the statute

ALLOWED TO LOOK AT EVERYTHING IN ASCERTAING A GUIDING PRINCIPLEo Here, court looked to media surrounding the making of the statute, speeches, etc.;

purpose; factual background; statutory context

This is a complex administrative systemits unrealistic to think Congress can regulate this pricefreeze over time. Pragmatically necessary for delegation to the agency.

Gilberts: Court held that the statuteunder which the President had imposed a wage price freezesufficeintly marked out the fieldin which the President was to act by setting a base date and providing

for adjustment of inequities. Legislative history and previous wage-price control statutes were held toindicate the congressional intent.

Court also found relevant that Congress had provided a relatively short life span for executiveauthority (so that frequently Conrgess would have to reexamine the Presidents actions) and that

judicial review was available.

Industrial Union Dept, AFL-CIO v. American Peteroleum Institute (The Benzene Case)Status ofthe delegation doctrine today

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RULEThe Sec of Labor must determine, prior to issuance, that an OSHA standard isreasonably necessary and appropriate to remedy a significant risk of material health impairment

What made this a non-delegation doctrine case was the language 2 statutory sections in this: if you are thinking about regulating Benzene you have to:

o STAGE 1: Section 38show its reasonably necessary for a safe, healthy environment.

(significant risk)

This is a threshold determinant. Might be a delegation problem, if agency has too much discretion.

o STAGE 2: w/ regard to toxic pollutants:

6(b)5: mixture of strong and not strong regulation. no employee is left behind.Basically you have to get to no risk.

Language: to the extent feasible So the extent feasible is much less pro-worker than other language. Mixture of both pro-worker and pro-company.

As a result, we dont know what this statute means. It could mean to theextent its feasible for the industryinsure safety to point where itsimpossible or the industry is about to go out of business.

Gilberts: The Court expressed severe doubts about the breadth of the delgationto OSHA, which leftunclear whether the agency was to balance costs and benefits. It also expressed reservations aboutregulations that set standards w/out reference to the cost of satisfying them. As a result, the Courtnarrowly construed the statute, finding that first OSHA had to show that a significant risk existed at theconcentration level shown.

American Trucking v. EPA

Statute violated the Nondelegation doctrine, but the court would have allowed the EPA toprovide the missing intelligible principle itself

Adequate margin of safetyozone standard. Has to protect the health. Is this enoughguidance? Poorly written statutevague

Does this provide enough guidance, or is this a nondelegation doctrine problem?o Court says it fails delegation doctrineno intelligible guiding principle.o Therefore, its insufficient for agency and public

But court doesnt want to strike it downbut the court wants a more precise callfrom the agency w/ regard to the scope of its discretion.

Scalia says you dont need a determinative criteria but you need intelligible guidingprinciple to guide the agency.

o He also says that the scope of the delegation tells you what degree of discretion is

allowed for the agency. If the area that the agency is considered w/ is narrow, then youdont need as much guidance from Congress.

Ex: country elevators: Not that broad of a subject. Congress can leave this termundefined.

Gilberts: This statute gives the EPA little guidance on where to set the standard; it does not indicate howmuch pollution is too much.

Ability of the President to control administrative actors and the proper role of Congress

The executive and the agenciesThe old learningMyers v. US

RULE: The power to remove subordinates is inherent in the constitutional power of the PresidentSenate cant reserve removal for themselves.

Power grab by Congress

Power over the executive branch lies with the president, not the president and Congress. Powershould be with the president, if not the pres would lose power over his own branch

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Idea: if the president wants to remove the postmaster in OR, he has to get the consent of theSenate. Congress is not just putting a limit on the president based on criteria, Congress isinsisting on a role for itself.

How does this comport w/ Article 2? Doesnt comport well says Taft. The President and no oneelse is supposed to take care that the laws are faithfully executed. Congress does the legislatingand then has to let goCongress CANNOT reserve for itself the power to control an executive

act.Gilberts: The Myers rule probably apples only to high ranking officials such as Cabinet officers who aredirectly involved in carrying out the Presidents policies at the highest level, b/c a removal restriction atthis level would impede the Presidents ability to perform his constitutional rights.

Removal of Executive Officers

President has power to remove executive officials at will. Congress may impose restrictions on removal of officials. May not retain advice or consent

power to remove officials.

See Myers v. U.S. above.

Humphreys Executor (U.S.)o Member of federal trade commission. Federal trade commission engages in quasi-

legislative and quasi-adjudicatory activities. FTC can make trade regulation rules and

also adjudicate cases and impose fines on industries out there that violate traderegulation rules. Acts a little like Congress.

o Example: Power to require gas stations to post octane ratings on the pump.

o KEY: this would be different from Post Master (pure executive branch division). Post

Master does not findings or general rules. Nor does he impose fines on public. Since helacks this power, he is pure executive branch.

o Meyers is different. Here, Congress is not reserving for itself any power. Statute doesnt

say that the President can fire this person for differences. Statute says can do it but onlyforGOOD CAUSE. This is a limitation on the Presidents power to remove.

o Why do you want to insulate? Would want to bc of quasi activities. If they do this everyonce in a while, dont you want those decisions to be made on the merits as oppose to onpresidential politics. Dont want president to have power to call of FTC and tell them howto vote on their cases because they have for instance contributed to my campaign orsomething similar.

o Holding: The President cannot remove officials whose agency functions are quasi-

legislative and quasi-judicial in nature, and not merely extensions of the ExecutiveBranch of Government.

Weinero War Claims Commission case. This commission hears and determines war claims

arising out of WWII. Suppose to be temporary. Then it will be done.o Congress fails to discuss how or when the war claims commission can be removed in the

statute. War claims commission stays in existence for longer than it is suppose.o The President and one of the commissioners has a little tiff. So, now President wants

him gone. Statute does say how commissioner should be removed.o Have to make up limitation on power of President to remove war claims commissioner.

That is what court does. Says, even though no statute, we are going to imply a statute onthe Presidents power to remove. Did this bc of the logic saw in Humphreys Executor.o Goes further than Humphreys Executor. Creates an implication from language.

o Holding: The President has no power to remove agency commissioners of agencies

whose function is purely adjudicatory.

Congressional Involvement in Appointment and Removal of Executive Officials

Appointment clause: Art. II, Sect. 2, Clause 2.

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Congress MAY NOT appoint administrative officials. May appoint those who act merely in aidof legislation, such as officers who gather information or do research to help Congress decidewhether and how to legislate. Officials appointed by Congress may NOT exercise authorityunder the laws of the U.S., such as prosecutorial or rulemaking.

Congress has power over budget and legislation. This may influence or force the President

to appoint those she may not wish to. POLITICS

Congress MAY NOT participate in the removal of administrative officials.o Other than removal via impeachment and conviction, the Constitution contains no

provision regarding the removal of officials. Court has held that Congress may notremove except by impeachment in House and conviction in Senate.

o Bowsher v. Synar(U.S. 1986)Formalist, line drawing approach.

Large budget deficits. So, re-election coming up. Getting a little nervous. Bottleand Ulysses metaphor. Take budget deficit and the cuts you make and take topresident and then he will make cuts according to schedule so we will wind upwith deficit that is lower than we want later.

That arrangement is unconstitutional. Because Bowsheris carrying out the law.He is executing the law. It is unconstitutional even though Bowsher issupposedly under the control of Congress. He is removable by Congress ongrounds slightly less than impeachment.

Bowshers removal for less than impeachmenthave to specify for Congress forcause groundslike misconduct, malfeasance, etc. Bowsher can litigate that.

Otherwisehave to have a joint resolution by Congress. Statute or law. Majorityof both houses of congress and presentment to the president. So, can only getfired if all agree to fire him. He has to be extremely unpopular to be terminated.

Holding: Congress cannot retain power to remove executive branch officersexcept by impeachment. Otherwise, this would violate the separation of powersbecause Congress would be interfering in the execution of the laws through thepower to participate in the removal of officers of the U.S.

**NOTE: members of Congress may not serve as Administrative Officials. Incompatibility Clause of Constitution and

Separation of Powers

Executive Control of Administrative Agencies

Article II places the President at the apex of the executive branch and therefore theadministrative hierarchy.

Inherent power in President has not really been clear throughout history.

Unitary Executive Theoryholds that the Constitution vests all executive power in thePresident. Any attempt by Congress to insulate officials and agencies from completepresidential control is suspect and probably unconstitutional. This theory, includes Scalia asan advocate, is attractive for its simplicity and apparent adherence to constitutional text butdoes not reflect governing law.

Presidential Control of Appointment of Executive Officials: The Appointment Clause

Appointment Clause gives power to President to appoint officers of the United States.Congress may specify that inferior officers are appointed by the President alone, by theheads of departments or by the courts of law.

Inferior v. Principal Officers: inferior may be appointed by alternative procedures. No clearsubstantive line between two types.o Principal: high-level officials in executive branch and heads of independent agencies.

Cabinet members and commissioners are principal officers because there is no one inthe government hierarchy between them and the President.

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o Inferior: lower-level executive officials who are under the supervision of other executive

officials beneath the President. Morrison v. Olson (U.S. 1988)

o Supreme Court upheld a statute that gave a court the power to appoint an independentcounsel who would investigate crime and prosecute high-level political officials.

o This case makes a hash out of all the other cases weve done. 8:1. Scalia dissent.

o Independent counselputs people in jail. A prosecutor is not a quasi judicial official.They are pure executive official. Appointed by special court. Appointed through attorneygeneral as a preacher of the presidentno IC unless the AG and Pres agree to have oneappointed. Actual counsel appointed by this special court. Have one because we donttrust Pres to investigate himself or his minion.

o Pres through AG can remove IC but only for good cause shownmalfeasance,inefficiency, inability to do job, etc. This can be litigated.

o IC in this case must be an inferior officer or else cant have been appointed by pres. Sheis an inferior officerhas to conform to policies of department, tenure, etc.

o But, what about removal? Previous cases seem to suggest that removal clause is goingto create some problems. IC pure executive branch official. But the logic of thoseprevious cases, the one thing we remembered was that there is a big difference betweena postmaster of Portland, OR or the member of FTC or the War Claims Commission?

The last two were quasi judicial. They imposed fines.o With same logicis pure executive branch official that means it is impermissible for

congress to limit the pres power to remove IC.o BUTpragmatist is going to say thisthis other way is not pragmatic. It undercuts the

reason for having IC. If can be removed by pres then no IC. SO, pragmatists takecontrol. We think no point of statute if the IC is not going to be independent.

o Want neutral so appearance of justice is done.o TESTlook in given case (case-by-case determination) and ask: Does the limitation of

pres power to remove this official impair the pres power to carry out article IIresponsibilities.

o This test is why Scalia dissents. Too general. This isnt law in any serious sense. Justsaying, your job just got more pleasant. You can go home happy every night. Bc alwaysdecide separation of powers cases the way you feel whether you like the Pres or you like

Congress.o Holding: The independent counsel was not entirely an independent agent because she

could be fired for good cause which the Court did not define.

Incongruous Appointments

Appointments made across departmental lines or by a court appointing an official to aposition unrelated to law or legal processes (such as an undersecretary of a department) maybe incongruous. These appointments may violate the separation of powers.

Congressional Involvement in Appointment of Officers in U.S.

Only power Congress has is its advice and consent powers.

The Legislative Veto and Review of Regulations

Legislative VetoUnder legislative veto, Congress reserved the power to reject agencyaction with a vote, depending on the particular provision, of both houses of Congress, by onehouse of Congress, or in some cases even by a single congressional committee. Legislativevetoes were not presented to the President for signature or veto. Congress used this forseveral decades to control agency action.

Chadha DecisionSupreme Court held a one-house legislative veto unconstitutional.Formalistic Approach.o Deportation case. Attorney General temporarily stops deportation process. This statute

has a legislative veto attached to it.

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o Chadha is now going to be deported. So he challenges this overturning by one house.Says have to have both houses. You dont have the ability to do this by yourself. Shouldhave to go through both houses and President.

o Court saysthere are some things that the houses can do by themselves such asimpeaching, Supreme Court justices, and treaties. But, those dont include legislation.Therefore, cant do in this case.

o DISSENT: Justice Whitepragmatic approach suggests that since Congress hadunconstitutionally delegated away its real legislative power, its not unconstitutional; itsconstitutionally sound to allow congress to recapture some of its originally assignedlegislative authority through the one house legislative veto.

o Instead, they take a formalistic mind blowing approach.

o Holding: Where the action of either house of congress is legislative in nature, such

action is subject to the presentment and bicameral requirements of Art. I of theConstitution.

After ChadhaAll legislative vetoes are unconstitutional. Congress created a new procedure in the newAPA, chapter 8, under which agency rules can be rejected by a resolution that passes both houses ofCongress and is presented to the President. Resolution must be introduced to Congress within sixtysession days of Congress receiving notice of the rule and the major rules cannot become effective until

after the sixty days have expired. Meets both bicameralism and presentment requirements.

Post Benzene nondelegation casessince Benzene case, the Court has rejected several delegationchallenges.Mistretta v. U.S. (U.S. 1989)

Intelligible Principle Testcourt held that the acts declaration of purposes and goals andits specification of the factors to be considered by the commission, provided a sufficientintelligible principle. Court rejected Scalias dissenting argument that the statute wasunconstitutional because the Sentencing Commission was a minilegislature since it had nofunction other than promulgating the guidelines.

Scalia thought such a minilegislature was unconstitutional because its discretion was notincident to the performance of an executive function.

Class Notes:

o Scalia is more right than the majority. Criminal sentencing. Swing pendulum onsentencing back and forth. Discretionary sentencing to vary uniform sentencing. Justrequires treating unlike things unlike. Be sensitive to context and circumstance. Thenindividualized sentencing and large discretion for judges. But, then similar crimes aregiven different sentences. There is a problem. So, create a US sentencing commission.Independent agency. Dont want politics involved. Not subject to presidential control.Passed by Congress. It gives guidancein a statute. Generalized, guiding principle.

o Commissionjudges mostly and lay down more particularized standards. Some sort ofsentence is adopted for a crime. Then you have provision for upward departures anddownward departures based on various prior criteria.

o Appointed by President, but upon recommendation of the Senate (Senate confirmation).Removed (federal sentencing commission) only by president. But, because independent,then must be terminated for good cause.

o When and if the president wants to remove judge then must do so for good cause.President CANNOT remove them as federal judges nor can congress/president reducetheir salary.

o Functional approach. Mixing of powers. Dont have to have pure separation of powers

could just have a checks and balances.o This looks like rulemaking. Not a case where one branch is giving power to another or

keeping for self and harming others.o Is this a judicial power grab? If no sentencing commission, then who would be doing the

sentencing? Individual federal judges.

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o All you are doing is concentrating the sentencing authority within a few federal judges asoppose to given power among all city judges. This is concentrated power. Not takingpower from one to another. All judicial power is staying with the judicial side. This isdifferent than seizing the power of the other branch.

o Does not improperly add to the presidential power.

Holding: Establishment of the U.S. Sentencing Commission is constitutional.

Intelligible Principle as generalized instructions: Under current law, relatively general statutorypurposes or broadly stated instructions to agencies will supply an intelligible principle and thus meet therequirements of the nondelegation doctrine.

Congressional Control of Administrative AgenciesInformal Congressional Influence

Congress has informal contacts with agency personnel to express their interests andinterests of their constituents in the outcome of agency action. Congress also seeksinformation from agency officials and summon them to committee hearings to explaintheir actions.

Congress influences agency action by pressuring the President to appoint officialsfavored by members of Congress. These officials owe their agency positions to

members of Congress who retain influence over their actions at the agency.

Formal Congressional Influence

Congress can formally influence agency action througho Agency funding provisions in appropriations bills,o By statutorily restricting agency action, ando By overruling regulations under recent legislation that gives Congress sixty days to

review major agency rules before they go into effect. Congress also have power by creating agencies with less Presidential control.

Direct Supervision of Administrative Agencies

Cost-benefit analysis. Office of Management and Budget created by Reagan. Influence

agencies to do cost-effective regulation. Agencies budget requests are channeled throughOMB giving the President another method of controlling agencies. Congress still may setbudgets.

Independent agencies are not located in the executive branch.

Executive Order 12,291o Answers questions you might have. Think in intelligent terms of cost-benefit analysis.o Limitationdoesnt apply to independent agencies. Reason is because it might raise

constitutional problems because the order is given by the Pres and cant control theagency. Not really talking about formal rulemaking (rarekey caseFL EastcoastRailway Case). Any other respect in which it would be contrary to statute, then dontapply.

o Cost-benefit analysisregulations can sometimes cause problems. Can be well

intended but can actually do more harm than good.o EXAMPLES: sometimes clean air regulations also have dirtier water. There are trade

offs. Carcinogen example and food. Asbestos in breaks.o So, want to reduce costs of regulation. Make sure that the benefits exceed the costs

otherwise, why regulate. Choose way to regulate with the least net cost. Be sure toconsider non-quantifiable costs and benefits. Just because hard to quantify, that doesntmean that it is zero. Must also examine the non-monetary costs.

TWO APPROACHES

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Line drawingtakes what majority says and decides that Congress has improperly reserved for itselfcontrol over the execution of the laws.

What is going on in BowsherCongress is not aggressively reaching out to seize power thatbelongs to the executive.

Confession of ones own weakness. Know that may have power now but wont be able to have itlater, so take itbudget example. Not a power grab.

Functionalist Approachmajority approach

Power of Agencies to Adjudicate

Crowell v. Benson (1932) [George says very important case = blockbuster] {Public, Privateand Constitutional rights doctrine}

o Facts: Benson sued to enjoin enforcement of a workers comp claim made by Crowell

(D), a deputy commissioner of US Employees Compensation Commission, contendingthe enabling act was unconstitutional in that it vested adjudicatory power in adm agency.

Jurisdictional facts: Was person here injured while being employee as opposed to IC Injury on the navigable waters on US

o Whether something counts as navigable waters varies fordifferent purposes (environment, safety, etc)

o Holding: Congress may not substitute an adm agency for constitutional courts for final

determination of the existence of facts upon which enforcement of the constitutionalrights of a citizen depend

o Dont have to worry about questions of law b/c agencys findings will be freely determinedby any reviewing ct (no harm)

o Public v Private rights (two types of facts)

Public rights = may be assigned to adm agency b/c historically public rightsdisputes could have been decided within the govt w/o any adjudication and publicrights did not exist at common law b/c of sovereign immunity so they can nowbe assigned to adm agencies and not violate Article III.

Crowell first case in which SCT approved the adjudication of private rightsdispute by adm agency. (RM)

Stringent requirements from Crowell = de novo review for questions oflaw and questions of jurisdictional fact (RM)

Lenient requirements = ct allowed deferential review of agencys factualdeterminations b/c the ct viewed the agencys function similar to that ofmasters and juries who often aid Art III judges; and it might actuallypreserve judicial power by not overwhelming cts with controversies,while maintaining judicial control thru de novo review (RM)

o Ct says there are still limits dont go wild we have examples now where cases ofmatters of fact can be determined by third parties hearing examiner, ALG, etc butthere are still limits

Ct says there are some limits that just stick in their craw (2 types of cases):o

Two exceptions to agencies finding facts: Matters of jurisdiction fact

Dont want to allow A thru even factual findings to be the determinationb/c it is in their jurisdiction (they could interpret their own mandatewrongly gone power mad and we dont want this so we cannotallow them to be the final say to tell them how broad their scope and

jurisdiction is need to reel them in ) Matters of constitutional fact

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Dont want to allow govt A bureaucrats to have the final say over yourconst rights which are important

Have to have judicial determination by fed ct for const rights accordingto this case those determinations mean nothing if you take them to fed ct

they wont just not give very much deference they will completely re-determine the facts on their own new record (de novo)

o

Part of this case that is kind of dead now jurisdictional Facts have be determined denovo by reviewing ct > Current state of law jurisdictional fact doctrine in the sense thatcrowell says jurisdictional facts have to be completely re-determined = pretty much dead

why too inconvenient pointless, time consuming , wastes the cts time Not specifically overruled though - so in this specific kind of case still follow

Crowell v. Benson and there has to be a new determination (confined to its facts so need similar facts for it to apply)

o Current law: A Pragmatic Test = Today cts use a pragmatic test to determine whether the

assignment of adjudicatory functions to an agency violates the separation of powers.o Constitutional fact doctrine (private right that bear upon your constitutional rights)=

degree of deference is less if talking about a constitutional right being implicated . Dont want to allow govt A bureaucrats to have the final say over your const

rights which are important

Doctrine got started with takings (violates const) Why would SCT review obscene films - residue from const doctrine

theory is they do this b/c freedom of speech is one of our most importantrights so they will make sure obscenity is really there and offensive

o Really suppose to reweighing facts b/c you want to err on sideof free speech

How heavily must an agency weigh fact-finding by its own ALJ?

Universal Camera(3 cases) [Review of Questions of Fact]o Facts: Retaliatory discharge case. Finding by ALJ makes certain findings of facts and

conclusions of law ALJ gets case first and hears and determines that case sometimesit is just the ALJ that hears witnesses they are the only ones in position to notice tone invoice or if witness fidgeted no eye contact, etc.. When full board reviews, they look attranscript.

Witness credibility will vary sometimes it makes a big difference and othertimes it wont make much difference at all

Some situations where the board has better access to agency expertise= howsafe is it if I touch this irradiated rod to decide that kind of thing not Wcredibility > best scientific evidence we are capable of better to be able toconsult real expert (agency scientists) full board can do that batter than ALJ

So some situations where you would want to respect the board andothers where you would want to respect the ALJ

Statute itself says consider the whole record after all the report of the ALJ itselfis part of the record so has to count for something and it cannot be zero maynot be wroth very much but it counts for something looking for substantialEvidence the ALJ report is probably not substantial need more than ascintilla!

o Substantial Evidence test = means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion (withstand a directed verdict on the groundthat a reasonable jury could only have one view of facts)

Ct must look at the record as a whole (and not just evidence supporting agenciesdecision as they did in the past; now less deferential than in past = this is a morerigorous test)

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o Special circumstances:

Witness credibility determinations : If the agencys decision relies on witnesscredibility, it takes a great deal of contrary evidence to convince a ct that theagencys decision lacks substantial evidence. Agencys decision is entitled togreat deference b/c able to observe witness.

Agency reversals of ALJ decisions : The initial decision of the ALJ is part of the

record of agency proceedings that are reviewed in ct. When an agency reversesthe decision of the trier of fact on appeal within the agency, the reviewing ct musttake the reversal into acct in deciding whether agencys decision is supported bysubstantial evidence (The ALJs decision weighs against the agencys decision).

Rigor or Deference in judicial review of agency determinations of law, fact, and policy when anagency adjudicates, makes substantive rules, or non-binding rules

Allentown v. Mack(1998)

o Facts: Allentown (P) was accused by local 724 of unfair labor practices. Local 724 filed

a charge with the NLRB (D), which found Allentown guilty of unfair labor practices b/c itdid not have a good-faith reasonable doubt about the extent of support for local 724among Allentowns employees when it conducted a poll of employees. NLRB verypolitically sensitive board but not a model of your impartial agency

o Holding: Basing its actions on statements from a substantial portion of its employees

provides a company with reasonable good-faith grounds for doubting the degree of unionsupport; polls taken on that basis are valid.

Doesnt have to be more certain than not or more reasonable than not Just need reasonable good faith suspicion

o Lesson learned: If you allow agency to find whatever facts they want to you have

thereby in effect allowed the agency to change the law and cts would lose a great deal ofcontrol over agencies. Reviewing cts cannot give up completely their power to reviewfindings of fact

o Politics has a big role in this case and facts

Republican stand point: have testimony by some of the workers that they believeunion does not have the support We know hearsay counts for something and if you have 1 or more

workers that say this why cant you as owner of AM based on thatand other things I have heard putting everything together I now harbora good faith reasonable doubt

o Std is not clear and convincing E

Democratic standpoint: what circumstances existed when this person said Idont think the maj supports the union it was said in response to a Q posed bythe people who are just about ready to decide to hire or fire you

Pressure for getting job Board is going to think undue influence

Board is going to say in circumstances where there is just obvious potential forcoercion we will give what that employer says zero weight not b/c it ishearsay but b/c it is not worth anything = inherently coercive holding chaps jobhostage until waiting for the answer that boss wants

Smyth v. Ames (1898) [Constitutional fact doctrine]

o Facts: The Nebraska Legislature set a maximum rate on railroads operating within the

state which precluded the railroads from recovering their operating expenses.

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o Holding: The fixing of rates must be based on the fair value of the property being used

by a corporation for the public convenience to ensure the corporation receives justcompensation for its service.

As to a degree still = there is an argument to be made under Crowell thatconstitutional rights are at stake idea would be if you have a pubic utilitymonopoly and are franchised (have to supply everyone but no competition)

there are going to be heavily regulated by the state and state will dictate the rateof return on their investments = if you go to far you may be confiscating utilityproperty = almost a taking eminent domain

o Rate of return should be commiserate to other ventures that have similar degree of risk fairly recompense stock of capital many ways to calculate far be it from use,reviewing cts, for us to tell you to apply one method to another

If rates too low similar to a taking (eminent domain) SCT is backing away from constitutional doctrine

Hope Natural Gas

o Facts: George combined this case with Smyth above

o Holding: A rate order which is not unjust or unreasonable in effect is not subject to

judicial review even if the method used contains some infirmities

Constitutional duty for court to reweigh the facts For practical purposes the const fact doctrine is dead in this area except for free

speech

53 Eclectus Parrots [Review of Questions of Law]

o Facts: Allen (D) appealed from a summary judgment ordering the forfeiture of 53

eclectus parrots to customs.o Holding: The definition of wild bird extends to any foreign bird whose species is

normally found in a wild state if the country of origin protects the species.o Dispute over which definition to use for wild bird: One definition (govt) = wild bird

normally found in the wild state and other (importer)= a bird that no one has any successin domesticating not bread in captivity untamed parrots no breeding of parrots

o US govt wins here with their definition Want to argue from neutral standpoint that govt definition is better b/c it is

generally easier and cheaper to apply in a given case than importers definition Dont get demographic shifts too often found in wild will not change

rapidly will be something you can look up quickly and cheaply Definition of importer more particularized and more fact sensitive

what you deem to be relevant can vary rapidly and no single authoritaryplace to look it up very vague unpredictable and complicated

Simplicity ease of application in particular context apply a general legalterm is easier under govt definition than importer

o Degree of deference that cts should accord to Agency should vary depending on whetherwe are defining a general term or if it is a situation where we are applying facts to aparticular legal principle

Going to defer more in cases in which legal problem is application of law toparticular set of facts

Unless not complicated then ct may do (like valid will) Defer less if it is a general term

o Conclusion = less deference to Agency if just defining legal term more deference

when applying legal term in particularized contexto NOTE: GENERALLY Burden is on proponent of rule/order to go forward w/process and

bear burden of proof. If you want a rule or order adopted, then you bear burden of proof.

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Hearst Publications [Review of Questions of Law Application to particularized Facts]

o Facts: The NLRB found that newsboys selling Hearst (D) newspapers were employees

under the NLRA and therefore Hearst was ordered to engage in collective bargaining withtheir representative.

o Holding: A reviewing court must accept an agencys application of a broad statutory

term if such application is supported in the record and has a reasonable basis in law.o Definition of employee is for the courts (RM) [pure legal question/pure statutory

interpretationo Application of definition is for the agency (RM) when question is one of specific

application of a broad statutory term deference to agency and cts function is limitedo Pg 275 suppose to look at leg hx > look at terms of statute and purposes underlying the

statute = this is the ct determining what the law is So dont ask how much they should defer ct starts out by brushing agency

aside and say well figure it out by looking at the above and they decide what weconclude is that Congress wanted to extend the scope somewhat (expandcollective bargaining)

o [Pg 276 btm] The ct says boards determination is acceptable if it as warrant in the

record and a reasonable basis in the law = they are admitting there is no single right

answer even to a legal Q but as long as not a crazy interpretation we the ct are goingto then refer to it. Ct recognizing we cannot just ignore accumulated experience of the A b/c they

deal with this kind of problem every day ct does not see that wide variety Uniformity of law problem if all cts defer to what the agency wants = get more

uniformity and stability if all 30 of the cts defer = uniform, homogenous laborlaw across country has to be something beneficial to that

If get cts giving all diff answers then it would be different for eachemployee depending what ct they are under (judicial jurisdiction) = costlyand inefficient.

Legislative rules v. Agency Interpretations [From Pollys notes]

o Two differences:

Interpretative Rule Procedurally: Does NOT have to go through notice and comment procedure Does not get tested/tried by public opinionits the agencys best guess at what

congress meant by a particular term in a statute

NOT a binding rule of law just an agencys statement of its own view of

congressional law, judgment of how they predict a case will come out only there forguidance

* Gets less deferenceo However, Swift, defers to an interpretative rule

Legislative rule aka Substantive rule

Done pursuant to congressional authorization congress has allowed the agency tomake binding lawthis is just as binding as an actual statute

This is real law that has gone through both authorization by congress and notice andcomment been tested by public commentary * Gets more deference [usually]

o Upcoming cases, Cardozo Fonseca, MCI do not defer to legislative rule

o Sometimes dont want to defer to a legislative rule politics can play role

which party in charge of house, change statute a lot under which they work

SCOPE OF REVIEW OF AGENCYS LEGAL INTERPRETATIONS

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Rigor or deference in judicial review of agency determinations of law, fact and policy when anagency adjudicates, makes substantive rules, or non-binding interpretive rules.

An Agency interprets law when it:

Adjudicates a case and writes a decision

Adopts an interpretive rule

Adopts a legislative rule

Traditional rule (based on APA 706) was that the court could substitute its own judgment for theagencys legal interpretations, but the following cases have eroded that power

Skidmore v. Swift & Co. (1944), p. 243

Legislative Rules v. Agency Interpretations

Weak Deference

Holding: Courts, in determining controversies not committed to the jurisdiction of any agency, may takeaccount of reports, recommendations, and opinions of administrators.

Legislative rule: The product of an exercise of delegated legislative power to make law throughrules. Valid if within the granted power issued pursuant to proper procedure and reasonable as amatter of due process.

o Also called substantive rule. Does have to go through notice and comment.

o Legislative rules, adopted by agency, have the force and effect of law. The agencys

power to adopt it was delegated by Congress via a statute.

Interpretive rule: Any rule an agency issues without exercising delegated legislative power tomake law through rules. Not binding on courts but may be persuasive.

o They dont have to go through thenotice and commentprocess. Agency just

promulgates it based on its expertise.o These, by themselves, dont have the force and effect of law. Just the agencys best

guess about what it thinks the law of Congress is.

This decision may have been made via an extremely informal agency process Means that therule in Skidmore is an Interpretive Rule.

Legislative/substantive rules, because Congress authorizes them, should get more deferencefrom reviewing courts. If you disagree with a legislative rule, youre not only disagreeing withagency, but also with Congress power to delegate to that agency.

o Often, like in this case, legislative rules get struck down by courts and when interpretiverules get upheld.

BIG IDEA: If the issue is technical, DEFER. If its not technical, DONT DEFER. Court givesweak deference to agencys interpretation, taking into consideration the agencys expertise.

Factors related to weak deference:o Consistencyo Contemporaneousnesso Thoroughness of considerationo Reenactmento Agency expertiseo Public participation

CHART NOTES

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(Everyone has THE CHART in your notes already Ive just included my notes so you can compare withyours. Feel free to delete this section of the outline.)

General Rule: Chevron is more deferential than Skidmore. Not exactly right.

Overlap ofChevron and Skidmore curves show that you can have the same amount of deference for a

certain agency decision/interpretation under both cases. Skidmore deference, in some circumstances, isstronger than some cases where theres Chevron deference.

Skidmore high deference: Case in which there is a great deal of agency expertise andexperience thats crucial to the case. Court will defer to that. The more an agency has expertiseand experience thats relevant to the case, the more we want to defer to that.

Skidmore low deference: we can test the validity of the agencys reasoning p. 246. Thatsalmost no deference at all. Deference means that the court will not second-guess or critique you,even if it disagrees. If Im checking the validity of your reasoning, Im not being deferential.

KEY:1A Christensen at 3061B Meadat 314 .. Scalia always is on Chevron, or else free judicial review On

Chevron if agencys authoritative high-level view is somehow known. Scalia

doesnt believe in Skidmore. Chevron or nothing. This includes interpretiverules. Scalia often stops with Chevron Stage 1 or on less deferential (left) side ofChevron. IfChevron doesnt apply, he thinks the courts are on their own.Although he likes to apply Chevron to lots of things (formal adjudication, noticeand comment substantive rules, also interpretive rules), he sometimes applies itbut cuts off the process early and doesnt defer at all to the agency (skippingStage 2).

2 Christensen at 306 . Thomas Agency interpretations lacking the force of law (legislative orsubstantive rules, but not interpretive rules) get only Skidmore deference, notChevron deference. But compare Barnhartat 1271-1272 (saying that there aretimes that interpretive rules not having the force of law - should get Chevrondeference, based on factors).

3A Christensen3B Christensen. Breyer and Ginsburg - At 3A (on Chevron), if Congress delegated the

necessary authority to the agency to do what they did, but on 3B (Skidmore), if itdid not grant the necessary authority (consider degree of agencyexperience/expertise). Apply same level of deference, no matter whether youapply Chevron orSkidmore.

4A - Mead4B Mead.. Souter Giving some Skidmore deference Give Chevron deference (only) if

the agency actually acted somehow pursuant to some sort of explicitly ORimplicitly intended congressional grant of legal authority. (Pretty broad Scalias fuss unwarranted?) On chart, degree of deference could be anywhere inthere, as long as its on the Skidmore curve. In Mead, theyre not really

narrowing Chevron as much as Scalia thinks.

SO. IfChevron (Step 1) does not apply, Breyer/Ginsburg/Souter/Thomas apply Skidmore, and Scaliawould give free judicial review to decide whetherChevron even applies. If something less than a NOTICEAND COMMENT rule or formal adjudication (where Chevron clearly applies), look to Barnhartfactors at1271-1272 in deciding whether to apply Chevron (i.e. agency expertise, importance, interstitiality).Agency expertise factors into whether to apply Chevron orSkidmore AND how much deference underSkidmore should be given. Its relevant to both decisions.

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Also, if Congress has reenacted the same statutory language with a knowledge of the agencysposition/view/interpretation, that is usually presumed to validate the agencys position. Infer thatCongress wasnt unhappy with the agencys interpretation.

Chevron, Inc. v. Natural Resources Defense Council(1984), p. 250

Agency Interpretation of stationary sourceModern View: Strong DeferenceHolding: In the absence of clear congressional intent, courts must accept the reasonable interpretation ofadministrative statutes given by the agency. Courts may not fashion their own interpretation of the statutethat encroaches on the rulemaking power of the agency. Unless the regulation, arising out ofinterpretation of a statute, is arbitrary, capricious, or manifestly contrary to the statute, it must be upheld.Here, the regulations were proper.

BIG IDEA: Ambiguous statutory terms should be interpreted by agencies rather than courts, soCourt must give effect to a reasonable agency interpretation of a statute unless that interpretationis inconsistent with a clearly expressed congressional intent.

o If Congress expressly or implicitly delegated law-interpreting power to the agency, theCourt must follow any reasonable agency interpretation of an ambiguous statute.

Chevron introduced the era of STRONG deference: A court MUST (not may) defer to the

agencys interpretation of law.

Court establishes a 2-step process for judicial review of agency interpretations of law:(1) Ask whether the statute is clear (or, if Congress has directly decided the precise

question at issue)(2) Ask whether, if the statute is ambiguous, the agency interpretation is permissible orreasonable. (If so, the agency interpretation is to be upheld.)

Chevron deals with an interpretive rule.

Weight should be given to contemporaneous agency interpretations of statutes.o More weight given to interpretations adopted after accumulated experience (as opposed

to contemporaneous) in enforcing that interpretation.

BREAKDOWN of the 2 STAGES:

Starting with a separation of powers focus (legislature does the legislating), go to the FIRSTSTEP: TO LOOK FOR SOME SORT OF UNAMBIGUOUS, SPECIFIC INTENT OF CONGRESSON THE PARTICULAR QUESTION AT ISSUE.

o If Congress has done that, the case is OVER. (Rarely the case.)

Agency would have to follow congressional intent bottom line because theagency has no authority to defy Congress. The court has no business overridingwhat Congress has done, either.

Increases the power of the agency. If youre looking for Stage 1 specific intent, you do NOT CONFINE YOURSELF

TO LOOKING AT THE FACE OF THE STATUTE. Consider and consult ANY traditional canons of statutory construction

not just the text. (Even a dictionary.)

STAGE 2: The DEFERENTIAL STAGE.o 2 kinds of gaps that Congress might leave for an agency (whatevers left when congress

hasnt left specific instructions): Explicitly-left gaps Implicitly-left gaps

o For an explicitly-left gap, Agency can fill it in any way, AS LONG AS ITS NOT

ARBITRARY.o For an implicitly-left gap, if Congress has intentionally delegated to the agency the gap-

filling, then the test is one ofAGENCY REASONABLENESS. Court will uphold any

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reasonable filling of an implicitly-left gap. If its unreasonable, the reviewing court willstrike it down.

Theres a little more discretion for the agency if the gap is expressly, explicitlyleft.

This probably isnt a real difference between these standards.

Chevron Court doesnt find any specific intent on the part of Congress at Stage 1. Goes to Stage

2. Finds reasonableness, so the Court upholds what the agency has done in this case

Quick Review ofChevron Test: STAGE 1: Is there unambiguous, specific intent of Congress on the particular question at

issue? If not, go to stage 2.o Determine intent by looking at alltraditional tools of interpretation (text, structure

of statute, circumstances, legislative history, dictionaries). STAGE 2: Court gives some deference where a gap is left open for agencies to fill.

o If gap is explicitly left, Court applies more deferential review forarbitrariness.

o If gap is implicitly left, Court applies less deferential review forreasonableness.

Changing scope ofChevrons 2-stage test for judicial review of an agencys interpretation of keystatutory terms.

INS v. Cardoza Fonseca (1987), p. 264Holding: Asylum can be granted without a more likely than not showing. The 2 statutes createdcompletely separate tests. Immigration Acts created a right not to be deported that applies much morenarrowly than the discretionary grant of asylum. Tests are different in scope.

In a way, this is really just a Chevron Stage 1 case where you stop there, finding a clearcongressional intent on the interpretation at issue. BUT. The intent of Congress in this case isreally more of a NEGATIVE specific intent rather than a POSITIVE specific intent.

2 separate statutes in question.o One requires that its more likely than not that the person would be persecuted in order

to forbid the AG from sending them back.o The other requires a well-founded fear of persecution.

INS has been interpreting well-founded fear of persecution as meaning morelikely than not.

o How much deference should this get? Not overly much.

We may not know what Congress intended in a positive sense, but we know what they did NOTmean in a negative sense. We know that they didnt mean the INS interpretation.

o Court STOPS at Chevron Stage 1. That gives a definitive result that intent is evident

NEGATIVELY.

Christensen v. Harris County(2000)Not every interpretation is entitled to strong deference like an agencys legal interpretation contained in

an interpretive rule or policy statement.Issue: What weight should the divisions opinion letter be given in the courts determination of statutoryconstruction? Holding: The opinion letter should be given no weight.

The interpretation at issue is in the form of an opinion letter from the division not a formaladjudication or from notice-and-comment rulemaking. Such interpretations are entitled torespect, but only to the extent that they have the power to persuade.

o Here, the agencys interpretation is unpersuasive, and deserves no weight.

Court tries to adopt a sensible rule: Giving Chevron deference to a formal adjudication(uncontroversial) or to formal rulemaking because Congress has given the agency the authority toadopt binding rules by its own intent.

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o Court applied Skidmore and its factor analysis instead ofChevron. Decided that

Skidmore should be applied to interpretations contained in interpretive rules or policystatements.

o So what would NOT get Chevron deference? Stuff thats short of that like opinion

letters, which do not have the binding force of law. What else? Interpretive rules

Policy statements Agency manuals Opinion letters

Interpretations arising out of formal agency adjudication qualify for strong deference, as long asthe adjudicating agency also had rulemaking power.

Case: United States v. Mead Corporation (2001)Not every interpretation is entitled to strong deference like ruling letters written by agencies.

Holding: A tariff classification has no claim to judicial deference underChevron because there is noindication that Congress intended such a ruling to carry the force of law; underSkidmore, however, theruling is eligible to claim respect according to its persuasiveness.

On the face of the statute, theres no congressional intent to give Customs classification rulingsthe force of law.

No Chevron deference unless:o Congress has granted lawmaking power IN THIS CONTEXT to the agency; ANDo The agency must actually have acted pursuant to that delegated lawmaking power.

The delegation of authority may be explicit or implicit. Unclear on what to do with informal adjudication which is what this case is about. Court is reluctant to give a ruling letter a lot of deference. Might give it deference under certain

circumstances like:o Longstanding interpretive ruleo Well reasoned interpretive rule

Court applied Skidmore instead ofChevron, considering that the rulings applied to an area inwhich the agency had technical expertise.

Chao, 291 F3d 219. Discusses Mead. We didnt cover this or the law review note on the syllabus inclass, but review your copy of the article that was on reserve for an overview of the Chevron cases.

Barnhart v. Walton(2002)Informal Agency Decision Borderline Case whether to apply Chev. def. Holding:

The fact that an agency previously reached its interpretation through means less formal than"notice and comment" rulemaking does not automatically deprive that interpretation of judicialdeference.

Whether a court should give Chevron deference to an agency interpretation that did not emergeout of notice-and-comment rulemaking depends upon the interpretive method used and thenature of the question at issue.

Ct. attempted to determine when to apply Chev. or Skid. deference in regard to informal agency

decisions. Wright says this is a balancing test that is used in a borderline case.

Factors to consider:

Interstitial nature of legal question: Question that lies between 2 main strands not ofmajor significance matter of filling in holes

Expertise of the agency: always an exam answer - Expertise is a consideration that in bothChev. and Skid. def.

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Importance of question: Should cut in favor of Chev. def. Another canon of statutoryconstruction - if something is an important question, you can likely assume that Cong. had anintention in the matter = less Chev. def.

Complexity of administration: If complex to administer, will want to defer more to theagency.

Careful consideration over a long period of time: If agency has taken something seriouslyor if agency has adopted a certain view even casually but over a long period of time = moredef.

Factors are not all inclusive.

Krzalic v. Republic Title (2002)

Case decided after Barnhart

Holding:

The more technical the issue, the less guidance the statute provides to its correct resolution, themore sensible the agency's decision, and the more deliberative and empirical the proceduresused in the decision = greater the deference.

When a statute administered by a federal agency is unclear and the agency is authorized tointerpret it, the agency's interpretation, unless unreasonable, may bind a reviewing court.

Posner says that the Barnhart case attempts to merge Chev. and Skid. Wright does not agreewith this dont take it seriously dont put this on exam. Per Wright - Barnhart is to help youdecide in a close case whether Chev. def. applies.

Edelman v. Lynchman College (2002)

By amending a law without repudiating a regulation, Congress suggests its consent to the agency'spractice.

Ct. basically said that Chev. and Skid. do not matter the agency was exactly on point in itsinterpretation agency did exactly what the ct. would have done de novo.

Wright says this was a made up standing in the shoes of the agency test Wright says this isabandoning method! All the previous cases dont seem to matter to this ct.

MCI v. ATT(1994)

J. Scalia (dictionary case) Stage 1 Chev. CaseStage 1 Chev. case Lack of def. to agency Scalia does not go past stage 1 of Chev. found unambiguous Cong. intent on the precise issue so

no reason to defer to agency (Wright says this rarely happens) he never looked to leg. hx. orcontext of statute.

Holding:

An agency's interpretation of a statute is not entitled to deference when it goes beyond themeaning that the statute can bear.

The agency did not modify the statute, they fundamentally changed it and this is not allowed. The plain meaning of modify did not allow the FCC to eliminate the tariff requirement.

Public Citizen v. Young(1987)Stage 1 Chev. Case

ROL: If a court finds the FDA's construction contrary to clear congressional intent = no deference.

Case involved Delaney Clause - If something causes ca to any degree then it is completelyprohibited. FDA attempted to interpret meaning of statute to be more flexible Ct. said no. Cong. intent was very clr. = case stopped at Stage 1 of Chev. (no def. to agency)

Wright says: If you can get to step 2 of Chev., the ct. will likely uphold the regulation. If stopped bystep 1, then the ct. will not uphold the regulation.

Am. Textile v. Donovan (1981)

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Basically a Chev. stage 1 case but Chev. at Ct. of App. when decided Facts: OSHA interpreted Act as requiring the most stringent standards that were economically and

technically feasible. Am. T. argued that a cost-benefit analysis must be used. Holding:

Standard was reasonably necessary under OSHA - that it protected employees' health to limits oftechnical and economic feasibility, and that cost-benefit analysis was unnecessary. (improve

worker safety up to point that business could be in financial trouble imposing greater reg. costthreatens to put out of business) ROL

Substantial evidence = such relevant evidence as a reasonable mind might accept as adequateto support a conclusion. The reviewing court must take into account contradictory evidence in the record but 2

inconsistent conclusions from the evidence does not prevent an agency's finding from beingsupported by substantial evidence.

The reviewing court intervenes only when the substantial evidence standard appears to havebeen misapprehended or grossly misapplied by the court below. (rarely happens)

When the agency has failed to articulate a rationale, the cts are not expected to scrutinize therecord to uncover and formulate a rationale explaining an action.

Ct. found clear intent of Cong. = step 1 Chev. case. Cong. specifically intended this meaning of

the word feasible. Ct. used this along with plain meaning of feasible to determine that Cong.intended a feasibility analysis and not a cost benefit analysis.

The clear statement limit to Chevron deference when important liberties are at stake

Kent v. Dulles (1958)

DO NOT GIVE CHEVRON DEFERENCE IF THERE IS A SIGNIFICANT LIBERTY INTEREST ATSTAKE!!!

Holding:

The SC reversed the judgment, which had affirmed the denial of passports to petitioners. Heldthat the Secretary of State only had authority to withhold passports for reasons relating tocitizenship or allegiance or to criminal or unlawful conduct.

ROL:

Traveling is a personal right = "liberty. If "liberty" is to be regulated, it must be pursuant to thelaw-making functions of Congress. Where liberties are involved, the courts will construe narrowlyall delegated powers that curtail or dilute them.

Case does not follow the steps of Chev. If ambiguous, cannot have stage 1 case. Given the ambiguity of the language of this case should

have gone on to stage 2. Under Chev., this case would have come out the other way because ofthe Clear Statement Doct.

Clear Statement Doctrine (CSD):

Idea is that Congress must provide a clear statement for courts to allow certain results to bereached.

If there are 2 ways of interpreting statute one way raises the possibility that statute is unconst.

2

nd

way of interpreting statute will not raise any const. issues The ct. will choose the interpretation that is less controversial. Down side = if you are always going to assume that Cong. did not intend to raise a const. issue

by adopting statute this may sometimes violate cong. real intent. Cong. may have wanted ajudicial determination. If CSD applied, may deny cong. their day in ct.

CSD limits Chev. def. when important liberties are at stake. Basically, ct. wanted to give P a passport (it would be unconst. not to do so) so ct. interpreted the

statute in a manner that was const.

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Review of Questions of Policy Roadmap

Policy decision = agency determines whether regulations is necessary and what level of regulation isappropriate. Ex. EPA decides what level of pollutant to allow into atmosphere.

Informal rulemaking policy decision reviewed under Arb. and Cap. test. Formal rulemaking and adjudication policy decision reviewed under substantial evidence test. Arbitrary and Capricious Test

Agencies make decisions : based on consideration of relevant factors including alternatives without a clear error of judgment under the correct legal standard Agency must thoroughly explain decisions

Reviewing cts. must determine: was the inquiry searching and careful the standard of review is a narrow one and the ct. cannot substitute its judgment for that of

the agency Standard of Review of Informal Rulemaking

APA 553 Arb. and Cap. Test Substantial evidence review only applies to inform. rulemaking when provided by the enabling

statute. Only real diff. between A & C test and SE test = SE allows for greater judicial scrutiny of

scientific or factual bases of agency rulemaking. Standard of Review of Informal Agency Action (Informal adjudication)

A & C Test Standard of Review for Deregulation

Deregulation = revocation of regulation SOR = same test that applies to the initial promulgation of the regulation. (usually the A & C test)

HARD LOOK DOCTRINE (HLD)

HLD can be applied anywhere, but mainly applied in rulemaking. HLD involves 553 (rulemaking) and 706 (arbitrary and capricious) of APA.

553 only applies to informal rulemaking.

706 is a broader way of applying HLD. 706 A & C Test is applicable to everything the agency does. (rulemaking, final decisions,

everything!) All final decisions must pass 706, be within statutory authority, and be constitutional.

Difference between 553 and 706: sometimes agency decisions must pass higher test than 706 likethe substantial evidence test this is a more demanding standard than arb. and cap.

HLD applied to ensure that the agency really took the notice and comment process seriously. Agency must

read the comments adequately consider the comments respond to the most important or cogent comments

Nothing to stop a ct. from saying you have not adequately considered the comments or have notadequately responded to comments (ex. scanty 10 pages of response)

Affirmative Duty: To survive the HLD, the agency must lay out in adequate detail the reasons for itsactions and discuss the alternatives. Must explain logic and show work.

Conflict = Chev. is very deferential and HLD is not very deferential. Chev. and HLD could both apply. How do you decide between Chev. def. and HLD? Why would you apply over the other? No

clear answer. A matter of politics if a reviewing ct. likes what it sees, it will use Chev. If the ct. does not like

what it sees, will use HLD.

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Aggressiveness of review is also dictated by a judges personality. Some cts. distrust agenciesmore than others. Some agencies have better reputations than others and will receive moredeference. Consider whether the agency assisted in the drafting of the statute.

An early judicial hard-look case of agency licensing

Scenic Hudson v. FPCI and II (1965 and 1971)Epitome of HLD Facts: P asserted that agency did not adequately consider alternate plans in developing a power

plant.

Holding: The agencys discretion in granting licenses is limited by statutory authority. The agencymust consider alternative projects even after the close of hearings in order to protect the environment. 2 months after decision there is a request to reopen the record,

o there is a statute that requires agency to open record for good cause showing

Agency rejected alternate plan in less than 10 pages. Ct. said this was insufficient consideration =failed the consideration of alternatives under the A & C Test. This is HARD LOOK, b/c agency looked/discussed important problem, but not enough pages.

Need substantial evidence! After 5 yrs and 19,000 pages, Ct. said this was sufficient. However, after 5 yrs, the plan was no

longer viable. HLD is double-edged sword here it was applied for good against evil. How do you defend this?

You want the 2nd Cir. to defer to the agency on a certain number of occasions because wantuniformity. There are other times when diversity is wanted. (This was not a gen. rule thataffected the entire country just NYC different environmental values in diff. areas of thecountry NYC v. Grand Canyon.)

Judicial hard-look on the 706 substantive merits versus very demanding procedural standardsunder 553

Ethyl Corp. Case

2 heavy weight judges get into a fist fight over how court should review highly technical decision.

Procedural HLD: Judge B says to focus on making the agency hop through the correct proceduralhoops. Can apply HLD rigorously if you wish but apply it in a way that demands the agency goesthrough the correct procedural hoops. Reviewing ct. can check up on what the agency did just by forcing agency to do the work. Like a

checklist of procedural steps. Prevents agency from being too casual.

Specialized Courts for Substantive Hard Look Review: Judge L suggests that courts mustacquire the technical expertise to decide these cases. Cong. wants ct. to do something substantivelynot just force the agency to do something procedurally. Wright says this is impossible! (Math Court - HH could be the judge)

This time as a moderate hard-look informal adjudication

Overton Park v. Volpe (1971) (2nd

time around) Cts. disagree how much rigor to apply in regard to the HLD. Ct. going back and forth between HLD (553) and Arbitrary and Capricious (706).

End up at arbitrary and capricious review even though the court swings from one extreme to theother

Hard look review does not overturn an agency decision, just remands it for the agency to fix it HLD = thorough and probing in-depth review. The standard in this case was narrow but not totally HLD. Cost of overly aggressive review:

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If the cts. continually use an aggressive review and remand decisions back to agencies, theagencies will then take a wait and see attitude. Agencies may then stop engaging in rulemakingbecause it is too time-consuming and expensive. Ex. Agency attempting to create formal rule for seatbelt manufacturing. Ct. keeps sending

rule back for revision. Agency gets sick of this and then just waits for accidents to happen.After this, agency can recall certain cars with problematic seatbelts. Problem = people have

to die to recall!

4 McCases

Considering relevant factors under hard-look doctrine

Pension Benefits v. LTV- Pension Benefit Case: Very deferential

Agency in this case failed to explicitly discuss some relevant part of policy. You would thinkunder the HLD, this case would be dead but the ct. did not apply it.

This ct. says if we remanded rules every time an agency failed to explicitly consider a relevantpart of policy, the process would be too slow. Agency only has limited time and budget.

National Coalition v. Thomas - Mango Case:

Agency promulgated rule that gave these mango-growing countries a little slack in regard to

some chemical in mangos. Orig. reason agency gave for this was to help economy of poorforeign country.

Ct. said orig. rationale outside scope of consideration and remanded rule. Agency kept the same standard and changed the rationale. (so it will stand up to scrutiny of

ct.) New rationale = helping the American public interest. Although this may seem silly, thenext time the agency promulgates a rule, they may be more careful.

What is a clear error of judgment under hard-look doctrine?

Community Nutrition v. Bergland- School Lunch Case:

Rule regarding the infusion of nutrients into school cafeteria junk food. Need to look at someone elses notes mine were terrible on this case!

Microcomputer v. Riley:

Agency is trying to decide whether to apply new rule retroactively decision based on new policyand research. Applying a rule retroactively does not require agency expertise anyone can dothis.

Arizona Grocery Principle: Agency allowed to change mind about rule but must givesatisfactory justification.

Exception to Chev. def.: goes to consideration that is not agency specific anyone canunderstand the topic as well as the agency dont need any expertise in the area so youdont have to give Chev. def.!

Example: There is no agency that receives deference for a passage of th

Documents

Outline - Admininstrative Law