Date post: | 05-Apr-2018 |
Category: |
Documents |
Upload: | onlineprize |
View: | 217 times |
Download: | 0 times |
of 129
8/2/2019 Admin Law Final Notes Trimmed 20100422
1/129
1
ADMINISTRATIVE LAW NOTES
SPRING 2010
LEGISLATIVE DELEGATION REFUSAL TO REGULATE
Massachusetts v. EPA
- Legal question in this case?
Whether the agency can/should/must regulate under the Act.
- How do we answer this question?
Has there been a delegation of power?
Do they have the power to enforce the subsequent rules?
Start from the language of the statute
Setting out a grant of power to the agency - always your first question
Creation of an agency
Or grant of power to the agency
Language of the federal statute is always the starting point
EPA shall - no discretion
By regulation
proscribe standards
Applicable to new motor vehicles
Any air pollutant Stevens interprets this broadly
New motor vehicles
In the administrator's judgment possible discretion
Reasonably be anticipated to endanger public welfare
EPA Argument 1:Regulating would interfere with other congressional actions
Conflicts with DOT's authority to regulate efficiency standards
Only way to regulate this would be tailpipe emissions and someone else isalready regulating that
Any rulemaking that EPA would undertake would be superfluous
Response:
Congress is the one who makes the pronouncements and the agency
doesn't get to decide whether or not to follow; agencies have to execute the
inconsistencies
8/2/2019 Admin Law Final Notes Trimmed 20100422
2/129
2
Allowing the outcome of the statute to determine the meaning of the
statute is the wrong way to approach the analysis
Steven's position:
We're a country of great innovation - issue the regulations that will prompt innovation
within the industry (like what happened with lead gasoline, airbags/seatbelts) Statutory interpretation shouldn't be based on technological abilities; don't just throw
up our hands
Set aspirational standards / Set up a timeframe / Allow for setbacks
Concurrent jurisdiction is the assumption that our agencies will overlap; will be asked
to regulate issues that fall at the intersection of two fiefdoms
So what can the agencies do with concurrent jurisdiction disputes?
Sue each other
Negotiate with each other
Go with the stricter regulation
Get Congressional clarification (two actors within the same branch)
Go to the head of the executive branch - ask the President
o Concurrent jurisdiction is plausible and workable because the President (White House) is expected
to oversee the whole mess
EPA Argument 2: Congress failed to act on this issue on their own
- Congress knew of this catastrophic problem and rather than acting, they delegated.o This inaction should be given deference - Congress chose a course and the EPA should respect that
- Trying to figure out what the sorcerer wants us to do - we should try to honor the Congressional policy of
further study
EPA Argument 3: Piecemeal Approach
- Might disturb an overarching presidential policy related to international negotiations
- New Motor vehicles are 1/7th of the cause of GHG in the country - which produces 1/5th of the world's
emissions
o So why should the EPA interpret a statute in a way that would obligate them to regulate in such a
fashion (which would end up being ineffective) and would also tie the President's hands in creating
a global approach (would take away the President's carrot and stick)
EPA Argument 4: Brown & Williamson Tobacco
- FDA didn't regulate tobacco b/c regulating would ban the product
- Tobacco was within the plausible definition of the statute - but the court said that wasn't plausible;
Congress didn't grant to the agency regulatory power over such a large industry within the country
8/2/2019 Admin Law Final Notes Trimmed 20100422
3/129
3
- Should be careful about interpreting broad language to grant immense power to the agencies
Secondary legal question: What is wrong with EPAs decisionand justificationsfor declining to
regulate when the decision whether to regulate is left up to the administrators judgment?
- In the administrator's judgment . . . May reasonably endanger health and welfareo EPA was saying, even if we're wrong about whether we have the authority, we still have the choice
to regulate under that authority
o There is residual uncertainty about the causal link between human conduct and climate change; the
NRC report said causal link cannot be unequivocally established; so we (the EPA) do not want
to regulate in the face of uncertainty
- Why is Stevens entitled to impose this on the agency?
o The judgment is about the reasonability of the danger - not about whether they want to regulate /
think it's effective
o The discretion must be tied to the statute; they can choose not to act but their reason for not
acting has to be connected to the statute
Their current reasons are arbitrary and capricious
In summary, holding of Mass v EPA is that the clear text of the Section 202 clearly indicates that EPA has
authority and the agencys contrary interpretation based on DOTs overlapping jurisdiction, the ineffective
piecemeal approach & Presidents prerogative, Congressional silence, andBrown & Williamson is weak and
foreclosed by the bare text of the federal law. Also, the EPAs justification for not acting, even assuming ithas the authority, is arbitrary and capricious since the reasons it gives (e.g., residual scientific uncertainty) are
unconnected from the statute.
There is a subtle distinction between two types of decisions by an agency not to act:
Refusing to take enforcement action (strong deference) v. declining to engage in rule making
(much less deference, arbitrary and capricious standard)
IRS decides not to sue inaction (non enforcement) is given incredible deference
This is bound up in a highly factual inquiry
Decision to decline rulemaking petition which is properly presented to the agency - is
a question the courts will get into, although even here they will be deferential
Your decision has to be consistent with the text of the statute
Decision not to act as to be supported by reasons that somehow connect to the
statute (unconnected reasons are tantamount to an arbitrary and capricious justification
that can be invalidated by the court
LEGISLATIVE DELEGATION - INTELLIGIBLE PRINCIPLE
COST CONSIDERATIONS WHEN REGULATING
8/2/2019 Admin Law Final Notes Trimmed 20100422
4/129
4
Whitman v. American Trucking
Overview of the case:
This case deals with the Clean Air Act; specifically with the portion of the Act in which
Congress delegates the power to set air quality standards to the EPA.
The case presented itself before the DC Court of Appeals where the Court said that the EPA
can look at costs because the statute gives them a broad delegation of power and charges them
with promoting the public safety. If the EPA cant take cost into consideration, then the
affected industries will shut down. Obviously, closing entire industries and creating vast
poverty would be deleterious to the public health; something that the EPA is charged with
promoting.
Two legal issues:
This case presents two questions to the Court:
1. Did Congress provide an intelligible principle in its delegation to the EPA to set air
quality standards for greenhouse gases, e.g., carbon dioxide; and
2. Whether the EPA can take the costs of regulation (for the industry) into consideration
when deciding whether to regulate or not
The Statute:
To set primary ambient air quality standards the attainment and maintenance of which is meantto protect public health with an adequate margin of safety .
The Courts Opinion (Scalia):
It cannot take costs into account when setting air quality standards.
When we consider a question about delegation, we should think about whether the language in
the statute provides sufficient guidance to the agency. That is because A1 S1 of the
Constitution vests all legislative power in Congress. So, if Congress is going to grant that
power to someone else, it must be limited in some way. The SC requires Congress to give
agencies an intelligible principle when delegating them power.
The point of an intelligible principle is to ensure that the administrative agency is not
legislating, but is regulating and administering the law. In this case, the intelligible
principle is requisite to protect the public heath with an adequate margin of safety.
According to the Court, this sufficiently guides the EPA to administer the law as opposed to
create the law.
8/2/2019 Admin Law Final Notes Trimmed 20100422
5/129
5
It is worth pausing for a moment on Scalias argument that the Court has rarely declared a
delegation of authority unconstitutional. In fact, there are only two times in the history of
the Court that it has declared a delegation unconstitutional for failing to provide proper
guidance to the agency. In one circumstance, Congress granted an agency the power tocontrol the entire economy and in the other, Congress did not provide the agency any
guidance whatsoever.
However, Scalia believes that if the delegation of authority is broad, then the Court should
examine the delegation more closely for an intelligible principle. Conversely, when the
delegation of authority is narrow, the court does not need to examine the statute as closely.
The breadth of the grant of authority is inversely proportional to the amount of examination
that the Court will give the statute.
The court determined that the Act did provide sufficient guidance to the EPA to regulate air
quality standards after it examined the text and the legislative history of the statute.
The Court said that the EPA could not take costs into account because the text was silent
on the matter. The statute does consider what the EPA may take into account, such as the
public health, but in that consideration, it does not list cost of implementation.
***as a side note, Scalia does consider two definitions of public health as given inthe dictionary. The first definition is narrow and the second is broad. Scalia determines
that Congress must have intended the first definition to be used because; under the second
definition the EPA would have the power to take ANYTHING into consideration. He said
that Congress would not try to fit an elephant in a mouse hole, meaning that if Congress
intended such a vast grant of power, it certainly would have said so explicitly.
The Court also said that the EPA could not take cost into account because the legislative
history revealed that Congress did not want the EPA to make that consideration . Placing
language in statutes instructing an agency to consider the cost of implementation is not
something that is foreign to Congress. In fact, they have done that very same thing in other
provisions of the Clean Air Act (this type of analysis is called intratextual analysis).
Scalias third argument is that Congress was aware that this statute could have serious affects
on the US and they created a safe-haven clause for this very reason. Congress gave the EPA
the power to waive a deadline if it is essential to the public health to waive the deadline.
8/2/2019 Admin Law Final Notes Trimmed 20100422
6/129
6
Breyers Concurrence:
Though Breyer concurs in the judgment, he disagrees with the process that Scalia and the
Court uses. Breyerargues for an efficient government that can operate smoothly. He said
that in order to have this, the Court must read delegations of power broadly, so that the
agencies have the tools and the flexibility necessary to run the government on a day-to-daybasis. He believes that court-imposed restrictions on power to agencies would handcuff them
and put the brakes on government. Therefore, all other things being equal, statutes should
be read to grant an agency the power to consider all necessary implications of a regulation
In this case, however, all things were not equal and that is why Breyer concurs in the judgment.
He agrees with Scalia that the legislative history of the Act reveals that Congress did not intend
for the EPA to calculate the cost of implementation when setting the regulation.
Breyer differs from Scalia with respect to the presumption that the court should have when
reading a delegation of power. Scalia believes that the court should presume that the power is
not granted to the agency, while Breyer believes that the court should presume that the agency
was granted the power.
Thomass Concurrence:
Thomas agreed with Scalia that this particular delegation of authority was
Constitutional, however, he disagreed with the test that Scalia and the SCs priordecisions use. He argues that the intelligible principle test is a fictitious concoction of
the SC that has no basis in the Constitution. Instead, A1 S1 requires that Congress
exercise all law making. Therefore, he believes that the SC should rework the test to
whether or not Congress vested law making power in the agency and not whether
Congress provided the agency with an intelligible principle.
LEGISLATIVE DELEGATION
DELEGATING CRIMINAL PUNISHMENTS AND SENTENCING
Touby v. US
8/2/2019 Admin Law Final Notes Trimmed 20100422
7/129
7
Overview of the Case:
In this case, Congress passed a statute permitting the agency to decide the penalties for drug
offenses. It asked the agency to place drugs on a schedule. Each place on the schedule carried
different penalties. The statute also permitted the agency to place new and innovative drugs on the
schedule on a temporary basis. The temporary basis was not subject to judicial review, but the D couldchallenge the regulation in the trial court.
The Court:
The Court found that this was a constitutional delegation of authority to an agency. They were not
swayed by the lack of judicial review, because theD could challenge the statute during the
prosecution of the offense. Therefore, an independent judicial body still had the power to review
the agencys actions at some point in the process.
In this case, the Court wrestled with the question of what permits an agency to
criminalize something in the first place? The Court had to balance societys interest in
speed and efficiency of criminalizing innovative drugs against societys interest of having a
person who is accountable to the electorate.
Mistretta v. US
Overview of the Case:
Congress created a sentencing commission to try and deal with disparities in the
sentencing of federal Ds. They noticed that Judges were all over the map with
sentencing and Congress wanted to rein them in by creating guidelines for sentencing.
The commission was charged with creating a table for crimes that would recommend
the appropriate sentences to federal judges. Basically, 7 people got to decide the
sentences for every federal defendant in the country.
The Court:The Court found that this commission was constitutional. The court argued that Congress
was really delegating something to the judiciary that it already had the power to do . The
Court argued that Judges already decide sentences. So, by creating a commission in the
judiciary to make sentences more uniform, Congress is really only providing guidance to how
the judiciary should exercise its own power.
ScaliasDissent:
8/2/2019 Admin Law Final Notes Trimmed 20100422
8/129
8
Scalia wrote a stinging dissent, saying that Congress was actually giving the Commission
legislative power. He argued that sentencing was something that Congress should
handle because it is absolutely law making and A1 S1 vests all law making power in the
legislature.
Loving v. US
Overview of the Case:
Congress authorized the President to set forth conditions as to when the death penalty
can be enforcedin the Courts Marshal system. A prisoner sentenced to death under
that section challenged this delegation of authority.
The Court:
The court said that first of all, there is no hard and fast rule in the text of the Constitution preventing
Congress from delegating its authority to a coordinate branch of government. Second of all, the
President is the Commander in Chief of the armed forces, so when he is controlling the Courts Marshal
system he is already acting within the purview of his constitutionally granted authority.
LEGISLATIVE DELEGATION - SUMMARY
Art. 1, s. 1: All legislative powers vested exclusively in Congress.
8/2/2019 Admin Law Final Notes Trimmed 20100422
9/129
9
Supreme Court doctrinal test: Congress must supply an intelligible principle to the agency.
Whitman, Mistretta, Touby and Loving- examples of where the SC has upheld alleged violations of this
doctrine.
Take Aways:
(1) Where does the presumption lie?
When it comes to something like costs, the assumption the majority of SC will take:
unless Congress specifically suggests that costs are to be contemplated by the agency, then it
would be improper for the agency to do so.
This is the starting position for Scalia; he then adds that Congress specifically
contemplated considering costs and rejected that idea. Moreover, they included
reference to costs elsewhere. Therefore, they knew how to accomplish that objective
and chose not to.
Distinguish the above from Justice Breyer. Agreed with the judgment, but assumed that
cost consideration fell within the ordinary discretion of agencies where technical details do
become a part of calculations
(2)American Truckingis the relatively easy case:
(a) the objective is clear; and
(b) the agency is given some sense of the types of data & analyses that its conclusions
should rest on
(3) Where broad delegations of power are involved, the SC will require Congress to be morespecific with regards to the "intelligible principle"
(4) Lots of concrete examples of language that satisfies the delegation requirements; it does not
have to be very specific.
See quotes from last class
(5) Be sure to understand Justices Thomas and Scalia's opinions
Reconcile Scalia majority in Trucking and dissent inMistretta
American Truckingwas not quintessential lawmaking, standards within a
technical field for a variety of air pollutants; that does not sound like something
Congress is best at.
In contrast, Scalia is much less ok inMistretta when an agency is asked to
determine what the right penalties are for the violations of federal law; that looks too
much like lawmaking
Justice Thomas picks up on this point. Acknowledges intelligible principle precedent,
has no problem withAmerican Trucking. But to use intelligible principle as litmus test does
not make much sense - could delegate something with intelligible principles that is entirely
too lawmaking-like to be ok
8/2/2019 Admin Law Final Notes Trimmed 20100422
10/129
10
(6) Delegating authority to unit of government that already has that power is something that
gets greater deference
Mistretta - That branch (judiciary) ALREADY fixes penalties, so what is wrong with
having a subunit WITHIN the Judiciary to set guidelines
E.g. - Loving - smaller power was contained in the greater power, then ok.
PRESIDENTIAL APPOINTMENTS AND REMOVAL
SUPERIOR OFFICERS AND INFERIOR OFFICERS
Introduction
8/2/2019 Admin Law Final Notes Trimmed 20100422
11/129
11
o Presidential Appointment Power derived from Art II.2 Appointments Clause
Pres advice and consent of Senate for superior officers
BUT - Congress retains the power to vest the appointment of inferior officers
What about removal?
o Pres can fire superior officers at will Does NOT need good cause There are no constraints
So Why are there restrictions on the Pres to APPOINT officers, but NOT on the
Presidents ability to REMOVE?Historically The Pres needed advice/consent from
Senate so that small states could retain their political power in what high-ranking
officials are in the Exec branch
Myers v. United States
Facts
Statute provided that President can only fire the local postmaster general with the
advice and consent of the Senate
Holding
Unconstitutional; Constitution limits the Presidents power to appoint officials and the
Court understands that power to be strict and not also limiting his power to remove
Requirement to obtain advice and consent of Senate for removal is too much a constraint
on the President
Reasons why requirement is unconstitutional:
Position is purely executive
Consider This position is one of an INFERIOR OFFICER
So GivenArt II, Sec 2 - Congress retains the ability to vest the power of appointment
in Pres (alone), Courts of Law, and Department HeadsThus Shouldnt Congress also be able to impose restrictions to REMOVE that inferior
officer?
BUT Art II, Sec 2 Says that the power to appoint may be VESTED in one of those
three bodies It does not actually GIVE that appointment power to Congress
So then why would Congress be able to control when they are removed?
ASSUMPTION
8/2/2019 Admin Law Final Notes Trimmed 20100422
12/129
12
Unless Cong is specifically given the power, it is assumed that they do NOT have the
power
BUT With the Pres, we will assume he HAS that power even if not specifically
delineated
Myers should be read somewhat narrowly Only thing that remains With respect to purely executive officers, Cong cannot control
the removal
Humphrey's Executor v. United States
Facts
Roosevelt fired a FTC Commissioner appointedwith advice and consent of Senate for afixed term of 7 years
Issues
Does Pres have authority to remove him before his 7-year term is up?
Does the restriction of the 7-year term obstruct the Presidents ability to remove him?
Holding
President did not have to power to do so
Actually Pres CANNOT fire someone in the middle of their term that is
statutorily provided for
This is the point at which the Court breaks with the general deference to the Pres and says that
some restraints are ok
It DISTINGUISHES from Myers; Does not overrule
Commissioner is quasi-leg and quasi-judicial officer, not purely executive
Also note the 7-year term in distinguishing the cases
The officer was DESIGNED to be independent of the Exec branch, as
evidenced by the 7-year term restriction that intended to cross presidenciesThis 7-year term also ensures expertise in the job
8/2/2019 Admin Law Final Notes Trimmed 20100422
13/129
13
Morrison v. Olson
Facts
Morrison appointed independent counsel to investigate Ted Olson
Subpoenaed individuals then challenge the statuteSpecifically that theIndependent Council appointed by the Judiciary branch
(not the Executive) and there was a restriction on the President's ability to fire
the IC (for good cause only) and that restriction seems to handcuff the President in
a way that the Constitution does not allow
Statute
Grew out of Nixon Watergate scandal
Provides for a politically independent investigation to high-ranking Exec official
Allows AG to investigate and if finds anything then can ask Special Division to appoint
Independent Counsel
Allows Special Division (within Judiciary Branch) to then appoint Independent Counsel
Holding
"Good cause" requirement ok since its not really burdensome and does not impede
President from performing his Executive responsibilities.
What are the distinctions between these cases?Myers andHumphrey's
Branches of government involves
Impartiality matters
Senate role
Humphrey's andMorrison
Inferior officer
Purely executive
INFERIOR AND SUPERIOR OFFICERS
8/2/2019 Admin Law Final Notes Trimmed 20100422
14/129
14
QUALITIES & APPOINTMENT OF OFFICERS BY JUDICIARY
The first question the Court puts forth to decide this is:
1) We have to decide whether or not Morrison is an inferior officer or not
Holding Yes, Morrison is an inferior officer
Courts definition of inferior officer:
1. Subject to removal by a superior officer, i.e., the Attorney General
2. Limited duties
3. Office is limited in jurisdiction
4. Office is limited in tenure
These four facts are just issues or factors to look at. They are not dispositive.
What is Scalias position? Does not agree that this is inferior office.
This person is embued with all of the powers of the Department of Justice to conduct her investigation. And
that seems like an unlimited jurisdiction.
Although her position is limited to a particular series of events, that investigation could take 6 months or 6
years and could involve subpoenas that involve lots of people
The mere fact that someone besides the President can fire you, seems a low bar.
Essentially anyone besides the cabinet members will report to someone besides the President, so does that
mean that all of those people are inferior officers.
Why is it important whether or not Morrison is an inferior officer or not?
It comes from the Constitution that limits the ability of Congress to appoint inferior officers.
If the person is deemed a superior officer, the President and only the President can appoint that person with the
advice and consent of the Senate. (Appointments Clause Art. II, Sec. 2) He cannot delegate that to a DC
Circuit court, etc.
8/2/2019 Admin Law Final Notes Trimmed 20100422
15/129
15
Head of Office of Legal Counsel, the Head of National Security Office are rightly construed as superior
officers.
The reason for this is that they are long-standing positions, and positions that report directly to the President.
But in reality you do not fire the head of the Office of Legal Counsel without getting the Presidents ok.
So superior officers are not just limited to the heads of cabinet departments.
Congress cannot pass a law sending the appointment of a superior officer to someone else.
If IC is an inferior officer, Pres need not have appointed, and then you can ask whether Congress was acting
within its powers to vest in the DC Circuit Court the power to appoint.
Question 2: Is it okay for the judicial department to appoint this officer?
Courts holding Yes
Courts reasoning - federal courts appoint officers in various circumstances, e.g., such as when there are
claims of contempt of court or allegations of wrongdoing. So in light of this it is not unusual for Congress to
have vested this power into a subunit of the judicial branch. Not a new power being exercised; not unusual for
Congress to vest power in sub-unit of judicial branch.
Judicial branch in charge of interpreting laws/making decisions, so appointment fall within the traditional
scope of power and expertise. Hears cases and make resolution (decides up/down). It is a foreign concept for
a judge to appoint someone to do it. So isnt it odd for one branch to vest power to appoint in judicial? Chief
Justice says no. The judicial branch makes decisions, but it also appoints in special circumstances and this is a
special circumstance
So there is no problem with the judicial branch appointing a prosecutor to investigate allegations against high
officers of the executive branch
Also, if you specifically look at the Constitutional clause Art. II 2, cl. 2, it specifically says that you can
vest the decision to appoint these inferior officers in the courts of law along with the President or in the
Heads of Departments. So framers anticipated judges/courts of law might from time to time be making
appointments.
8/2/2019 Admin Law Final Notes Trimmed 20100422
16/129
16
Question 3 Separation of Powers = this is the meat of Morrison that gives rise to a new test that supplants
the test of Humphreys Executor approach or either complements the Humphreys Executor approachAt the
end of the day, the question of whether this removal provision violates separation of powers turns on
whether or not the restriction interferes with the Presidents execution of his executive power. Art. II, 3
says that the President must take Care that the Laws be faithfully executed
The restriction that you can only fire for good cause is not an onerous position that prevents the President from
executing his responsibilities faithfully and it is found in many employment contracts. It is just an ordinary
provision.
Because the ultimate test of Morrison is does the firing condition get in the way of the President of doing his
job the Court finds they have no objection to the firing condition because it does not get in the Presidents
way.
Morrison takes the last part of Myers and says you are not getting in the Presidents way this is the ultimate
question or test when you get to an inferior officer.
Test:
1. Is the officer inferior? If not, then only the President can fire the person
2. If so, does the firing condition get in the Presidents way of the discharge of his duties? (ultimate
question). If not, then the provision is constitutional and okay.
Here, President can do his job.
This is a simple restriction in a lot of K's (i.e. can only remove by Ag and for good cause) -- not an onerous
restriction on Presidents ability to discharge duties.
Congresss power to remove is not a specifically enumerated power, but it is an incidental, natural of the
power to appoint inferior officers in the President, judicial branch, or Department head
Morrison is, in some sense, an anti-President position likeHumphreys Executor(soMyers is the
outlier case).
- Morrison says that the ultimate q is: areyou getting in way of President's responsibilities?
Bc quasi-legislative/quasi-judicial function of IC, not getting in the way of President
8/2/2019 Admin Law Final Notes Trimmed 20100422
17/129
17
- Might find ammunition for analysis of "is it getting in the way" in prior cases
Where is statutory language that gives Cong power to put restrictions on apptments?
Ted Olson is an important figure in modern American legal history - represented Bush in Bush v. Gore.
Teamed up with the lawyer that represented Gore in Bush v. Gore to challenge Californias Proposition 8
Other ways that the President and Congress have oversight power over agencies and the ways in which these
powers are done.
LEGISLATIVE VETO
8/2/2019 Admin Law Final Notes Trimmed 20100422
18/129
18
INS v. Chadha
Facts
Law enacted by Congress that enabled Congress and AG to have a role in the deportation of immigrants
(Immigration & Nationality Act of 1952)
Chadha facing deportation. Under 1952 Act, first person who needs to act for Chadha to stay in US is AG.
AG given power by Congress to make determination that deportation would be hardship and AG then has
power to suspend deportation.
o No real delegation problems with this.
o But Ag's decision conditioned on Cong approval
Sect 244 of Act gives Congresspower to veto (Cong has reserved to itself some power to oversee the
administration of justice).
o AG exercising power granted under the statute. Congress delegates power to decide
when deportations can be suspended, but if Congress disagrees with AGs decision
not to deport, it could pass a resolution against the AGs suspension of deportation.
The AG could make a determination whether a foreigner could stay in the country
But Congress enacted a statute that allowed either house of Congress to pass a resolution to deny the foreigner
the ability to stay
This was a law enacted by Congress to allow Congress to have a role in the deportation process
What happened before this law was passed? Only remedy before the law was passed in 1952 was that
Congress could pass a bill that allowed an individual foreigner to stay in the US when they face deportation
Who is delegated the authority in the first place? The AG
And what does he get to do? Make a determination that if the deportation would pose a hardship on that
person or family and if AG found such a hardship, the AG could suspend deportation
In this case, the AG found such a hardship
So Mr. Chadha is on his way to stay in the country so long as neither the Senate nor the House of Reps puts
him on a list of people they thing should be deported
8/2/2019 Admin Law Final Notes Trimmed 20100422
19/129
19
This case is an example of where Congress has reserved for itself the power to oversee an administrative
agency. The AG has exercised the discretion given to him under the statute. Congress is saying they are
delegating the power to determine deportations that they used to exercise, but they are limiting the power to
say that one of the branches can limit the power to prevent deportation.
The question does this pose a constitutional problem?
What is the constitutional provision that you might invoke if you were Chadha?
The presentment & bicameralism clause Art. I, 7, cl. 2 requires that both houses pass a bill andobtain presidential signature.
The Court says that the statute 244 is unconstitutional because it did not pass both houses and it was
never presented to the President.
Bicameralism is especially important when the veto may alter the responsibilities, duties, and rights of
someone outside of Congress, indicating a legislative action requiring bicameralism . deporting someone
is affecting someones legal rights.
Just as it was legislative action before 1952 to have private bills that would alter Chadhas rights and allow
him to stay here. The resolution that would prevent Chadha from staying here is also legislative action. And
thus it must meet the presentment and bicameralism clause.
So the only way that Congress can change this is to amend the Constitution.
So why is it so problemsome for Congress to enact a law to shift some power, but to reserve some of the
power (limited oversight option).
It is certainly an example in which Congress does not show the utmost faith in the executive agency.
Held: sect 244 violates Const because it violates bicameral requirement (doesnt preserve 2 branch way of
making bill become a law)
- Can tell by intent and effects that this is legislative action (modifies duties and rights of people
outside of Congress)
o Mr. Chadha has to be deported --> Legal rights being affected by action of Congress
o Legislation is nothing more than actions by Congress that impact rights and duties of
persons beyond Congress
8/2/2019 Admin Law Final Notes Trimmed 20100422
20/129
20
- Just as before 1952 Congress can pass a bill to allow Chadha to stay, a decision by either
House which prevents him from staying is legislative action, and therefore subject to the
protocol (bicameralism/presentment)
Whats so troubling about this arrangement?
The Court contemplates discrete lists of situations where one house by itself takes unilateral actions- House
impeachment, Senate convicts from impeachment, Senate ratifies treaties, Senate advises and consents on
Presidential appointments
The original law satisfied protocol; why isnt it ok that Congress preserved some power and gave away some
power (retained some oversight)?
- Doesnt this seem like plausible way of sharing power w/I govt?
Hobsons choice in the opinion
Hobsons choice is a free choice when only one option is offered
-you are offered horses in rotating stalls, but can really only choose the horse up front
This is not a workable government that we envisioned in the administrative state to delegate authority
to agencies, but then to reserve some powers
There were tons of laws that had these legislative vetos in them that gave one or both houses of Congress that
gave them the ability to override the agencys action.
Justice White says that you are about to strike down more laws than have been struck down in the entire
history of the country.
Doesnt that seem harsh- to give them a Hobsons choice to delegate completely or not delegate at all.
But efficiency may be okay. That the Constitution consciously put in place separation of powers to put in
efficiencies to ensure that one branch of government did not have too much power.
Why does this not satisfy the spirit of presentment and bicameralism?
Pre-1952
The Senate and House have to approve and President signs the bill
8/2/2019 Admin Law Final Notes Trimmed 20100422
21/129
21
Post-1952, under 244
The AG says that the deportation should be suspended and then we have both Congresses say they do not
disapprove (by not passing the resolution). So this is both branches of government acceding to approving
Chadhas staying in the country
The order of approval is different, but are these not the same thing?
Summary
Case sets forth the type of oversight the legislative branch can
have through veto (of sorts).
Congress has tried to create loopholes to get around Chada.
Congressional Review Act (around 1995). Every major regulation
has to have a 60 day period of review before it becomes law. If
the house and senate disagree during that time, a proposed
regulation can be fast-tracked through both chambers, and sent to
the president to sign. If so, the regulation will not go into effect.
The act just standardized how this process should happen under
Chada (It satisfied requirements for bicameralism and presidential
approval)
Holding
SC said:If you are taking legislative action, if that action in its intent or effects
modifies the rights or duties of people outside of the legislature, then Congress can
only do so in a manner consistent with bi-cameralism.
Prof. Hypo
Imagine that NASA gets a grant of $2 billion to establish a Mars
station. Congress authorizes the $2 billion, but in addition states
that if NASA needs more money it can make an additional request
to a congressional subcommittee that deals with space exploration
If the subcommittee approves additional funding, then original $2
billion grant can be exceeded.
Prof asked: Is this plainly unconstitutional or not?
8/2/2019 Admin Law Final Notes Trimmed 20100422
22/129
22
Ms. Frankie: Not constitutional because the subsequent action is a
legislative action that should go through the bicameral process
Ms. Parsi: Not constitutional Said that hypo is similar to Chada.
Broader pole. Most votes for not constitutional.
Argument that the subsequent grant to NASA was constitutional:
It was distinguishable from a legislative action because it did not
change anyones rights; it was only an approval of funds.
Ms. Mannion: Constitutional. Prof: Why cant the hypo scenario
just be taken out of the legislative category because it can be
distinguished from Chada, which altered rights.
Mr. Arbagast: Not constitutional because rights of others could be
affected if the subcommittee had unfettered access to funds.
Prof: Changed hypo so that subsequent request would have to be
capped at a certain amount according to the grant of funds under
the original bicameral process. Would that scenario be different
from Chada? Prof: The question is this a legislative action or not.
Student: It has to be a legislative action of some sort.
1st debate Prof: Things like this happen all the time. Committees
are always allocating more or less money than planned for. There
are questions about the constitutionality of such occurrences.
Scholars have problems squaring these types of actions with
Chada, but think that an exception for appropriating money exists.
2nd
debate: Bear in mind that congress can make non-bindingactions[?]. Congress as a whole or subcommittees can act this
way. They are acts of legislation, but not legislative actions under
Chada. Doesnt fit under concept of legislative action.
3rd debate: Mr. Tressler: Congess is essentially creating a
legislative agency with its committee. Prof: Would you be OK
with Chada if, instead of saying that the Senate or House can
8/2/2019 Admin Law Final Notes Trimmed 20100422
23/129
23
overcome legislation, that this subcommittee is responsible for
vetoing it even though the AG said no. Restate hypo In Chada,
the idea was that the House or Senate can disapprove of AGs
decision. Tresslers point: A subcommittee would be granted
power to override AGs decision, would that change the result in
Chada? Prof: This is not a way to get around Chada, but would
run afoul ofChada. Student: Who would have standing in such a
case. Prof: Tabled until later
Bottom line:
Point 1. There are many ways congress maintains oversight over
agencies, and Chada is still good law.
Point 2. Chada involved an adjudication (as opposed to
administration of a rule). Chada dealt with a specific designation
of specific people facing deportation. J. White: We could
have avoided the broad sweep of the Chada decision affecting
agencies with override provisions. We could have treated this as
an adjudication because it dealt with one person. Legislation
could be used to deal with broader.
8/2/2019 Admin Law Final Notes Trimmed 20100422
24/129
24
LINE ITEM VETO
Clinton v NY Facts
Line item veto case. Congress passed a line item veto bill, that was signed by President
Clinton. Act allows President to veto specific provisions he disagreed with;
contrasted with discretion to control aspects of spending. There was wide support
for the bill, because everyone disliked the idea that pet projects (pork barreling) were
embedded in bills that the President was forced to accept if he signed the bill. The act
provided for 3 situation s when President could veto.
Clinton vetoed a provision that would have allowed NY to not
have to pay back $2.6 billion it had received in Medicaid benefits.
Clinton signed the broader bill, but used his line item veto power
to cancel out the debt forgiveness to NY.
The Act included a provision that conferred standing to
members of congress to challenge the Act. Such a challenge
would by fast-tracked directly to the SCOTUS. Members ofcongress that thought the Act was unconstitutional challenged the
bill, but SCOTUS held that they had no standing, no matter what
standing the Act provided. Instead someone directly affected by a
line item veto would have standing to file lawsuit. For example:
Consider the NASA hypo above. When the subcommittee
allowed the subsequent appropriation, someone affected by that
8/2/2019 Admin Law Final Notes Trimmed 20100422
25/129
25
additional appropriation could sue. The class of potential
aggrieved parties would be narrow; likely an affected agency or
state.
o
Standing: Harder option, If congress gave money to X, then Y who felt entitledto that money would have standing.
o Standing: Easier option, If Congress directly took money that was going to Y and
gave it to X. Y has standing.
Holding
In Clinton,SCOTUS found line item veto unconstitutional
because President should not be allowed to cancel a law after
signing, especially so soon afterwards (the Act allowed a veto
action within 5 days of signing).
President does not have the power to unilaterally change
statutes; requires bicameralism
Comments
Prof.: Did you agree with holding? Student response:
Constitutional. The line item veto is practical.
Student response 2: Unconstitutional. The political nature of pet
projects is welcomed in recipient district, so the line item veto
raises a political question that cant be decided by the President
But if enough procedural limits were placed on line item veto
power, it may be considered constitutional.
Prof.: There are already constitutional procedures for getting rid
of pork barreling (Pres can veto entire bill, it goes back to
congress, and comes back to pres). Prof: If you think there is an
inefficient process or protocol put in constitution by framers, the
constitution can be amended to deal with modern truths. Student.
Congress is not going to want to limit themselves by giving power
to the president.
8/2/2019 Admin Law Final Notes Trimmed 20100422
26/129
26
Prof. summarizes. On the one hand, the line item veto is practical
and widely politically popular. But the SCOTUS concluded it was
hard to get around plain language of the Constitution. There is
only one legislative process intended by Framers. We cant allow
a president to re-write legislation.
Field v. Clark (distinguished in Clinton case)
Holding
President can suspend free trade with other countries and veto
items off a pre-determined list of items that are freely traded.
Analysis
President may unilaterally take items off a listof items that can
be traded is distinguished from line item veto power because the
conditions related to trade, and policies of other countries may
change suddenly. President needs to be able to act quickly.
Second. Presidential authority here is limited by very narrow
discretion. Third. Even when the President is acting to erase
items from free trade, he is doing it to achieve the aims of
congress. Contrast with Clinton, where President had to act w/in
5 days. That period is not long enough for facts to change.
Instead, he is rewriting legislation by stroke of pen. In Clinton,
there was no indication that the broader bill would have passed
without the debt reduction to NY state.
In Clinton President is not effectuating the goals and aims of
congress. Instead with the stroke of his pen he is wiping away
negotiations made in Congress.
8/2/2019 Admin Law Final Notes Trimmed 20100422
27/129
27
ADJUDICATIONS AND RULEMAKING COMPARED
BASIC DISTINCTIONS
Ajudication and Rulemaking:
Adjudication:
Effects a small group of people
Is retroactive. (you owe this tax to us now)
In these situations people must have notice and the opportunity to be heard.
8/2/2019 Admin Law Final Notes Trimmed 20100422
28/129
28
Rulemaking:
Affects a lot of people
o Proscriptive
8/2/2019 Admin Law Final Notes Trimmed 20100422
29/129
29
ADJUDICATIONS
RIGHT TO A HEARING & DUE PROCESS
Londoner v. Denver Summary
Establishes when an agency rulemaking process must submit
to adjudication.
Prof.:Londoneris not a classic case of adjudication. Generally,
adjudication affects a small group of people, and is usually
retroactive.
Issue
Do those affected by a tax have the right to argue their side and
support their allegations by proof?
Holding
SCOTUS: When rules affect a small number of people, the Due
Process Clause requires that the people affected be given notice
and an opportunity to be heard and challenge. The 14th
amendment due process clause allows notice and chance of
individuals affected by agency decisions to be heard. Its not that
much of a burden on an agency to give people a chance to
complain when those people are part of a small group.
Bi-Metallic Investment Co. v. State Board of Equalization of CO.
Summary
One part ofBi-Metallic is, when an agency decision/rule affects
a broad group of people, each person does not have right to a
forum to voice objectives, because: 1. Is not practical; and 2.
there is a political remedy through the democratic process.).
Rules are prospective in application, may affect many people, and
are not really bound by fact-bound limitations.
8/2/2019 Admin Law Final Notes Trimmed 20100422
30/129
30
Londoner, andBi-Metallic differ on the basis of an order versus a
rule, respectively. Orders are products of adjudications and rules
are products of administrative decisions.
The Administrative Procedure Act has very different rules foradjudications and administration. A sub-category is informal
rulemaking and informal adjudications (well talk about later.)
Wong Yang Sung v. McGrath. (1950)
Summary
Habeas corpus proceeding involving Sung, a Chinese citizen.
Sung says that the court did not follow procedures of the APA for
his adjudication, thus his deportation order is invalid.
Facts
Governments position was that the particular immigration statute
at issue here doesnt require a hearing; therefore, we are not
required to give a hearing and are not bound by the APA, because
the APA only applies to rules that are required by statute.
Analysis Prof: When is a hearing necessary? If the APA does not apply,
what requires a hearing? Answer: the 14th amendment Due
Process clause.
An immigration hearing is exactly the type of hearing the APA
was meant to apply to.
Prof.: The key nub ofYang Sungis that anything that is so
important that a hearing is required (e.g entitlement to a license,
etc.) and is a big deal, we want the strong robust protections of the
APA to apply.
Here even though statute does not say one gets a hearing in a
particular circumstance, if the Constitution demands that you
have a hearing, the APAs same protections should apply there
8/2/2019 Admin Law Final Notes Trimmed 20100422
31/129
31
as well. We assume that Congress intended for those robust
protections of the APA to also apply.
The APA was going to apply one set of rules to all hearings. If
due process guarantees right to hearing, there would be a hugehole in the APA if it did not allow hearing. AfterYang Sung, we
know thatAPA applies to all things where a hearing is
guaranteed under the APA or the constitution.
ADJUDICATIONS
APA STANDARDS AND OTHER LAWS
Dickinson v. Zurko (p.264) (Purpose of the APA & standard of review)
Facts: Zurko applied for a patent & the Patent & Trademark Office (PTO) denied the application. Zurko
appealed to Fed. Circuit Court, which ruled in favor of Zurko by using a stricter standard for reviewing the
agencys decision.
PTO said that Fed. Cir. Ct should only review to see if decision was arbitrary & capricious (from APA
706)
Zurko claims that standard of review should be clearly erroneous which comes from settled case law
Issue of case: whether standards for judicial review follow APA or case law (pre-APA law)
APA 706- arbitrary & capricious
More deferential standard to agencies
less strict standard
agency has more latitude
Ex of acting arbitrary & capricious: if they make decisions by flipping a coin
Case laws clearly erroneous
Less deferential standard to agencies
8/2/2019 Admin Law Final Notes Trimmed 20100422
32/129
32
Stricter standard
Could be wrong, but not acting arbitrarily or capriciously, if you followed procedure and made a thoughtful
decision
Easier to be clearly wrong than arbitrary or capricious
When agency hears the facts, makes determination, & decision is subject to judicial review by a court
Rule: Agencies can make decisions in the form of rule making & judicial branch can review this (in most
instances)
How does question come before the court?
APA 706 supplies judicial review standards for agency decision making (including arbitrary & capricious)
APA 559 sets up conflict & is an exception that states the APA is not limiting or repealing additional
requirements already recognized by law
Sets up question of whether clearly erroneous is an extra requirement & whether it is recognized by law?
It is an additional requirement b/c imposes an additional restriction on the agencys decision making
So accepted that it is an additional requirement so question is whether is recognized by law..
Majority Opinion (Breyer): 706 arbitrary & capricious standard applies b/c of uncertainty in case
laws clearly erroneous standard, it is not recognized by law & it does not override the purpose of the
APA which is to create a uniform standard
Supreme Court will not override principal purpose of APA to set a uniform standard of review unless it is
clearly recognized by law
If it is recognized by law, then that additional requirement would supersede the arbitrary & capricious
standard set forth by 706
The goal of the APA was to bring about uniformity & allowing unsettled common law standard to govern on
the basis of 559 would create different standards of review
Dissent: Point of APA was to raise the standard of review for everybody, not just uniformity, to correct those
agencies that had suboptimal procedures
8/2/2019 Admin Law Final Notes Trimmed 20100422
33/129
33
Here for the sake of consistency, the Court is choosing the lower standard & hence lifting a constraint on
agency action
**KEY TAKE AWAY**: Supreme Court recognizes that one of the great hallmarks of the APA is
uniformity & therefore terms like recognized by law should be interpreted to promote uniformity
When interpreting language of APA, including terms like recognized by law, read them as consistent with that
overarching purpose of uniformity
Understand the text through the purpose of the APA
Arbitrary & capricious is the appropriate standard of review unless it is clearly displaced by
established/settled law or practice, even if it is lowering standard of review
Clear example where SCt says arbitrary & capricious is more deferential & less strict for the agencies than
clearly erroneous.
Clearly erroneous is less deferential and a step lower than arbitrary & capricious
Question to the Class:
Did the court get it right??
Those who say the Dissent is correct
The APA used as a gap filler, filling in where they had defects & strengthening it
If congress wanted total uniformity then 559 would be pointless
statutory interpretation, 559 says recognized by law
so many different areas of Admin Law then why mess with the existing standard then the uniformity
The Majority is correct: APA created to make sure that all agencies were following the same set of constraints,
and Common law standard variably applied provides insufficient guidance to litigants before the agency
8/2/2019 Admin Law Final Notes Trimmed 20100422
34/129
34
ADJUDICATIONS
HEARINGS ON THE RECORD REQUIRED
Seacoast Anti-Pollution League v. Costle(p.325) (554(a) of APA & definition)
Facts: Private company wants to obtain permit for exemption from a statutory rule that says you cant
discharge a pollutant into the water. In this case wanted permission to discharge pollutant,
superheated water, using a one time through system in order to remove waste heat. B/c company
wasnt clear that system they had would satisfy agencys requirements, they filed for permit &
exemption under 316
316 exemption
company needed to show that EPA standard was more stringent than necessary for a
balanced indigenous population of wildlife and
structure was best available technology
most environmentally friendly available technology
statute says only get an exemption after youve had a hearing, but problem is that there were
additional findings submitted but no hearing after these findings were submitted
claims hearing isnt consistent with requirements of the APA, didnt conform to procedural
requirements of APA
APA 554 says APA applies in every case where an adjudication takes place which is on the
record
Question: whether APA applies when statute requires a hearing but no mention of it being on therecord, given that the text of the APA makes it clear that APA rules apply where a hearing is
required to be determined on the record
554- tells us when the APA applies
Compare Wong Sung v. McGrath (holding that the APA applies even where the statute
does not call for a hearing in cases where the Constitution demands a hearing since
Congress must have wanted APAs strict rules to apply when not just a mere statute
but the Constitution necessitates a hearing )
APA says only time when rules apply is if hearing is on the record
APA applies b/c 554 says that APA applies in every case of adjudication, and a record
is necessary to facilitate judicial review & if it is not on the record then it is very hard to
be able to establish this review with nothing to look at
How do we get past the text on the record
Assume that when a statute refers to a hearing, it refers to it as a hearing on
the record b/c need to have judicial review
There can not be an agency whose decisions are not subject to judicial
review b/c the hearing is not on the record
8/2/2019 Admin Law Final Notes Trimmed 20100422
35/129
35
There is a rebuttable presumption that any time the statute refers to a
hearing it is referring to a hearing on the record; the magic words on
the record are not needed
Circuit Court concluded that you could assume that a hearing is meant to be on the record, unless there
is some contrary evidence, b/c the decision issubject to judicial review
the decision depends on highly fact specific determinations
The company is looking for an exemption which turns on whether standard was more
stringent necessary & whether they were using the best available technology; both
of which are fact based inquiry
Therefore we need to assume that it is on the record
The hearing determines individual rights and not simply broad policy
APA is big set of laws meant to govern administrative proceedings,
anytime you go before an agency youre going to wonder what set of rules are we subject to,
ISSUE IS WHETHER THE APA APPLIES IN THE FIRST PLACE --> THE APA
TELLS YOU WHEN IT APPLIES.
APA says only apply in certain circumstances
Ex: when the adjudication going on is required by statute; ie: a hearing is
required by statute
Wong Sung
Even though APA says only applies when hearing required by
statute, also applies when hearing required by constitutionSuch as deportation hearing which involves human
liberty & happiness
Meets spirit of the APA
Seacoast
Even if the APA says it only applies when statute says hearing
on the record, if statute just says hearing, court
concluded it is assumed that the statute meant on the
record
When the statute says hearing on the record, assume hearing means on the
record, doesnt make any sense to not have it on the record when the
following 3 circumstances apply
(1) In Seacoast court concluded that you could assume that a hearing
was meant to be on the record b/c hearing implies that there is going
to be some answer that is subject to judicial review
This is the type of decision that is subject to judicial review
(2) Decision depends on highly fact specificdeterminations
8/2/2019 Admin Law Final Notes Trimmed 20100422
36/129
36
(3) Hearing affects individual rights, not policy determinations, when
this factor is present then assume it is on the record
When these 3 things are true, there is a rebuttable presumption that a
hearing means on the record as well
Even though the APA says it will only apply when a hearing is on the record, assume it applies even in thosecases where the text refers to a hearing, assume its on the record
What if the APA said a hearing before a neutral judge and statute says a hearing, should the APA
apply?
ASK: Does it make sense to have a hearing without a neutral judge?
If this is the type of adjudication where individual rights are at stake, probably want a
neutral judge to arbitrate that dispute, so assume that APA intended to apply even
in those cases where the statute simply said hearing
WHAT TO KNOW
APA tells you that its rules apply in certain circumstances ex: hearings on the record, and then theres
a statute that says only make a determination after a hearing (could even just say you present
evidence before a neutral judge, etc.. doesnt have to use the word hearing)
Seacoast & Wong Sung say that APAs rules apply in circumstances where the specific
language of hearing is not used, some other scenario can get you a hearing & have to
reason why..
Talk about uniformity
Do APAs rules apply in the first place
Each put forward specific rules as to how the APAs rules apply
8/2/2019 Admin Law Final Notes Trimmed 20100422
37/129
ADJUDICATIONS
ADJUDICATION DECISIONS MUST SET FORTH REASONS
Armstrong v. Commodities Futures Trading Commission
Facts
I. Armstrong, a commodities advisor, had some companies that ran into trouble with
the Commodities Futures Trading Commission (CFTC) because of various
violations including failure to disclose. Armstrongs company is not ultimately
liable, so the question is if he can be held individually liable, which will require a
highly fact specific determination.
II. An ALJ issued an adverse decision for him. The ALJ looked at the evidence and
concluded that Armstrong was individually liable (which is basically a trial
determination). The Commission adopted the opinion, although stating they had
reservations about it. Nonetheless, the Commission substantially agrees with
the ALJs findings.
Statute
I. Armstrong argues that if the Commission does not fully adopt the ALJs opinion,
then it has to give its own reasons. Pursuant to 557(c) of the APA, when an
agency makes a decision it has to set forth its reasons and factual findings on
essentially every disputed question of law and fact.
Holding The circuit court interprets 557(c) by saying that an agency in reviewing an
ALJ decision CANNOT say it is substantially correct.
I. By saying the ALJs decision is substantially correct the agency was basicallysummarily affirming the decision below. Summary affirmation is permissible, but
saying substantially correct is inadequate because it leaves too much
guesswork regarding what the agency adopted.
8/2/2019 Admin Law Final Notes Trimmed 20100422
38/129
38
II. The basic rationale for the courts decision is that unless we know exactly what
the agency is thinking it makes it very difficult for a federal court to engage in
proper, adequate, meaningful judicial review of the agencys decision. If this
were the standard, it would invite a more intrusive role for the court.
III. The court interprets 557(c) of the APA as stating the following:
(1) Administrative agencies must set forth their reasons on every question
of law or fact.
When you are setting forth your reasons, you have to provide enough clarity to
facilitate judicial review.
8/2/2019 Admin Law Final Notes Trimmed 20100422
39/129
39
ADJUDICATIONS
ONE WHO HEARS MUST DECIDE, BUT NO PROBING MENTAL PROCESSES
GOVERNMENT MUST PROVIDE NOTICE
Morgan I
Facts
I. Fifty suits were consolidated for trial and were brought to restrain the enforcement of an
order by the Secretary of Agriculture fixing the maximum rates to be charged by market
agencies for buying and selling livestock in Kansas City.
Issue
II. Section 310 of the Packers and Stockyards Act calls for a full hearing before
determining the maximum rates for buying and selling livestock. The Court is trying to
figure out what a full hearing consists of.
III. 2 minor questions:
I. There was an intelligible principle question. Like in Whitman v. American Trucking
delegation is ok.
II. Was it ok to consolidate these 50 suits?
a. Supreme Court said this was not a problem.
Analysis
IV.Secretary did not hear any of the evidence. Instead the following process ensued:
8/2/2019 Admin Law Final Notes Trimmed 20100422
40/129
40
1. Examiner - Initially an examiner in the ALJ admits testimony, essentially
performed the role of a trial judge. The examiner that does this handles a huge
number of investigations. The examiner then stepped aside.
2. Acting secretary Then the acting secretary hears all oral arguments.
3. Secretary Finally, the new secretary comes along and instead of holding the
hearings all over again, he looks through documents and makes a decision.
Holding
V. The principle ofthe one who hears must decide. The Court says that if the Secretary of
Agriculture has too many things on his plate he can delegate to the Acting Secretary as
long as the Acting Secretary hears the evidence and makes decision. Here, the Secretary of
Agriculture did not delegate the decision making.
o Within an agency you cannot divorce responsibilities.You can delegate both of
the responsibilities (hearing the evidence and adjudicating) completely, but you
CANNOT split up responsibilities of hearing the evidence and making the final
adjudication.
Morgan II
First Issue
I. The Supreme Court takes a step back. It does not renounce the principle the one who
hears must decide, but the Court says its not their job to probe into the mental
processes of the Secretary.
o The Secretary of Agriculture testified that he was overwhelmed. He reviewed the
reports of the Acting Secretary. The Supreme Court says that if he says that he did
adequate consultation then that is fine. The Court will not inquire into the
Secretarys mental processes.
8/2/2019 Admin Law Final Notes Trimmed 20100422
41/129
41
o This puts a veil over the one who hears must decide because the Court is saying
that though they are requiring to the one who hears to decide, they will not look at
how he did it.
Second Issue
I. Whether or not Petitioners received a full hearing?
Holding
I. A full hearing under the statute provides for proper notice and opportunity to be
heard. The Court says you have to give notice of the complaint against these individual
litigants. We will not look at the mental processes of what the Secretary did, but we know
what a full hearing looks like in an ordinary adjudication. That requires the government
to set forth the basis of its complaint, to provide notice to its opponent.
VI. Why is it okay that the cases be consolidated and that each petitioner did not get an
individual hearing?
o (Pre-APA) - Individual adjudications are appropriate when there are some common
issues of law and fact. A full hearing is still possible without individualizing each
hearing.
8/2/2019 Admin Law Final Notes Trimmed 20100422
42/129
42
ADJUDICATIONS
AGENCY MAY REQUIRE QUALITY STANDARDS FOR ADJUDICATORS
Nash v. Bowen
Facts
I. The Social Security Administration (SSA) in 1975 had a backlog of 100,000 cases and the
director decided upon a series of reforms to improve the situation. A veteran ALJ brought
suit because he claimed all of the reforms impaired the ALJs right to decisional
independence.
II. Reforms:
1. Peer review program an outside committee that comes to in to says what the best
practices are (i.e. a typical hearing should last 2 days); and provide guidance on
how things should be done.
8/2/2019 Admin Law Final Notes Trimmed 20100422
43/129
43
2. Production quotas The SSA required that the ALJ render a certain number of
decisions a month. If they dont meet the quota there will be penalties.
3. Rate of reversal the ALJ had to maintain a fixed percentage of reversals in favor
of the SSA. An average 50% reversal rate for all ALJs is acceptable.
Issue
I. Whether efforts to improve the quality and efficiency of the work of ALJs impaired their
asserted right to "decisional independence" under the APA 551/Do these types of
reforms interfere with the judicial autonomy of the ALJs?
Holding
II. Court said that the Secretarys efforts to promote quality and consistency do not
infringe upon the ALJs decisional independence. Though the rate of reversal is not an
undue influence it is a proxy for consistent decisions, which the agencies are allowed to do.
Peer review, setting desired reversal rates, and production quotes are all fine.
ADJUDICATIONS
AGENCY MAY CONCLUDE ACTIVITY IS ILLEGAL, THEN ADJUDICATE
FTC v. Cement Institute
Facts
I. FTC issues a cease and desist order against 74 corporations that manufacture and sell
cement. The FTC complains that the 74 Cement companies are engaging in horizontal
price fixingby agreeing to identical services for identical prices, a per se antitrust violation
.
Issue
8/2/2019 Admin Law Final Notes Trimmed 20100422
44/129
44
I. The respondents legal objection is that the FTC is biased, so the respondents ask the FTC
to disqualify itself from judging the issues.
o The FTC had investigated this exact problem, put out reports, testified in front
of congress and said that it believed this was wrongand now they are trying to
adjudicate this same claim.
Holding
I. The Court disagrees with respondents and concludes that investigating and adjudicating
after submitting reports to Congress that posit a violation of law on a given topic is not
a problem. Therefore, what the commission did was fine.
o Reasoning The tagline for the Courts justification is that if the Court rules to
the contrary then an investigation into bad conduct would result in immunity
for that bad conduct. Congress set up this commission to see if
companies/individuals were engaging in antitrust violations. If every time you
investigate you then cant adjudicate, this would create a problem. Investigating
would mean immunity and that is bad, so it is ok for the commission to have these 2
things.
ADJUDICATIONS
AGENCY MAY MIX INVESTIGATIVE AND ADJUDICATORY FUNCTIONS
Wintrow v. Larkin
Facts
I. Larkin, a physician, was performing abortions in Milwaukee, WI when abortions were
criminal. Wisconsins statute authorized the State Examining Board to investigate
8/2/2019 Admin Law Final Notes Trimmed 20100422
45/129
45
physicians and temporarily suspend their licenses for professional misconduct. The
medical board said they would investigate his practice at a closed hearing where Larkin and
his attorney could attend and respond to evidence.
Issue
I. Larkin files a federal complaint saying there was a violation of his due process rights
because the examining board was mixing investigative and adjudicative functions,
which is a wrongful overlap of duties.
Holding
I. The Court holds thatfor an agency to have the authority to investigate and adjudicate
does not violate due process, and therefore what the examining board did was fine.
II. The Court says that this case is not governed by APA because it is a state agency, but the
Court refers to the APA because even the APA says that it is sometimes ok to both
investigate and adjudicate.Embedded in that exemption is the presumption that we put
our trust in our administrators that they can do both jobs in good faith.
a. Moreover in this case during the investigation Larkins counsel was present. At the
end of the decision the Court says there may be special circumstances in which this
would be a violation.
o APA Section 554(d) an employee or agent may not participate or advise in the
decision. The APA specifically says the person involved in the investigation
cannot be involved in the adjudication. But it has an exception that says that
the body composing the agency itself is exempt from this
8/2/2019 Admin Law Final Notes Trimmed 20100422
46/129
46
ADJUDICATIONS
EX PARTE COMMUNICATIONS
Portland Audubon Society v. Endangered Species Cmte.:
Background: The Endangered Species Act required a high level 7 member panel to hear and grant
exemptions. The Society charged that the panel had given an exemption because the WH had
improper ex parte communications with the administrators of the committee.
Questions:
1. Are Committee proceedings subject to the ex part communications ban of 557(d)(1)?
2. Are ex parte communications from the President and his staff covered by that
provision?
557(d)(1) is a broad provision that prohibits any ex parte communications relevant to themerits of an agency proceeding any member of the body comprising the agency or any
agency employee who is or may reasonably be expected to be involved in the decisional
process and any interested person outside the agency.
Need 5 of 7 votes to get exemptions from the Endangered Species Act.
President communicated with 1 or 2 members of the committee, and outcome would have changed
depending on their votes.
President says they are not outsiders subject to the ex parte statute, made three arguments:
1. Because President is the center of Exec Branch, he does not have an interest in the
Committee proceedings greater than the interest of public as a whole. President says he is
not interested person within its usual meaning.
2. Do not fall within terms of the statute because Presidents interest is no different from that
of his subordinates on the Committee. These people are appointed to be Presidents alter-
ego on the Committee, he should be allowed to talk to them.
3. Separation of Powers argumentthe statute prevents the President from carrying out his
duty.
Are any of these arguments persuasive?
2nd argument: There are plausible arguments for why President might able to talk with his
alter-ego on the committee, but does that allow the President to talk with other members of
the committee?
8/2/2019 Admin Law Final Notes Trimmed 20100422
47/129
47
What does outside the agency mean? President argues that since his alter-ego is on the
Committee, then he is part of the agency, and once you are in the agency, you can talk to
whoever you want.
o 9th Circuit rules this argument not viable.
o Subordinate can speak on behalf of the President, these are the people that are
supposed to make the determinations.
o Adjudications meant to be decided without backroom communications.
Ms. Enyeart: Alter-ego argument most persuasive.
Mr. Freyman: The purpose was to keep this agency independent from the president, similar
to the special prosecutor by Nixon.
Mr. Jose: This is differet from the independent prosecutor. There is no evidence that
Congress set this up to be adversarial to the president.
Ms. Arroyo: Can the president communicate with is committee member? Response: Not
with respect to the matter at hand while the case is being adjudicated.
First argument: President does indeed have an interest in this, falling under the usual
definition. President has views on the matter and an interest in the outcome.
SOP argument: Court says that an agency engaged in quasi-judicial decision-making
must have constraints on presidential ex parte communications. This does not impede
on the Presidents ability to carry out this duties.
o Could also useMorrison approachthis is a de minimus interference.
This is the case on ex parte communications.
Castillo-Villagra v. INS
Petition asylum to INS regarding persecution by political party in Nicaragua.
ALJ says they dont have a reason to be granted asylum. Their claim is a result of their own
actions, and their protests of the government were causing the persecution.
8/2/2019 Admin Law Final Notes Trimmed 20100422
48/129
48
BIA takes up the issuetakes administrative notice re: the fact of regime change and
determined from that petitioners no longer threatened. Fear of persecution no longer valid.
Notice how BIA uses completely different basis for decision than the ALJ. Generally speaking,
they are allowed to do this. Nothing that prevents BIA from reaching different conclusion or
using different grounds. Both appellate agency, and allowed to take in new determinations.
Legal question:
Legislative v. Adjudicative Facts:
o Legislative facts are not subject to debate, they are generally accepted as true.
o Suggested litmus test: Is it subject to reasonable debate? Is it external to the
litigant?
o Adjudicative facts are those bound up in the litigants themselves.
When is it appropriate for an agency to use these facts, when must it notify when they are
doing so, and when must they give you opportunity to rebut those facts?
General rule: With respect to legislative facts, agencies are allowed to take notice of them. But
in administrative setting, you should at least warn the parties that you are going to use them
as the basis of your decision.
We assume litigant wont debate them, but it may change their strategy. May cause them
to withdraw petition.
Regarding opportunity to rebut, that will usually be difficult, and probably not required.But that point is a little unclear.
With respect to adjudicative facts,you MUST give notice and MUST give opportunity to
litigants to challenge and rebut.
Questions: sometimes there are legislative facts that will have dimension subject to debate. In
those cases, you will probably be required to give opportunity to rebut.
Matter of Compean
This case is not the law, even though it was recently decided.
AGs opinion.
Procedurally, this case demonstrates who sits at the top of the decision-making chain. The AG is
allowed to, in administering the statute, make decrees that are decisions on behalf of the agency.
8/2/2019 Admin Law Final Notes Trimmed 20100422
49/129
49
AG essentially says we no longer will recognize ineffective assistance of counsel claims for
aliens challenging deportation. Alien cant appeal to a federal court on the issue that his lawyer
wasnt affective.
Justification: If you dont have constitutional right to an attorney, then you cant complain
under the constitution that your lawyer wasnt good enough . Didnt have rights to a lawyer inthe first place.
Why doesnt the Constitution require a lawyer?
6th Amendment right to attorney only applies in criminal cases, an immigration case is civil.
5th Amendment Due Process is only enforceable against the government. Not enforceable
against a private attorney.
Rhetorical counter-argumentunfair to the alien. Immigrants in particular are ill-equipped to
navigate the system. But how do you make the argument constitutionally?
Since this case, AG Holder has reestablished the BIA precedent that right to appeal on this ground.
There were 20 years of precedne ton the point that asylum seekers were entitled to this basis for
appeal.
How do you justify Holders position outside of BIA precedent?
Cant justify on criminal grounds, this is definitely a civil proceeding.
State action grounds best argument Prof can come up withwhen agencies are setting up
their procedures, which are incredibly complex, the process of setting up these rules is state
action. On the basis of this, agency can guarantee because of this complicated basis, weare going to provide you with a lawyer.
8/2/2019 Admin Law Final Notes Trimmed 20100422
50/129
50
Neguise v. Holder, US 2009
Facts: Neguise is a dual national of Eritrea and Ethiopia.
Neguise moved to Eritrea from Ethiopia.
Forced into the military.
War btwn Eritrea and Ethiopia. Neguise refused to fight. Arrested and made to spend time
in prison. Released after 2 years and then conscripted/forced to be a prison guard.
In his actions as prison guard he allegedly persecuted prisoners.
Eventually escaped to the US.
Within 1 year, as required by the provision of the Immigration and Naturalization Act
(INA), Neguise applied for asylum.
However, the INA contained a provision (Persecutor Bar), which stated that
aliens that assisted in the persecution of others are not eligible for asylum . The
provision refused to sanction asylum of people who committed the very
persecutions they now wish to escape.
Neguise sought asylum on the grounds that the Persecutor Bar did not disqualify
him from asylum, as he was merely conscripted and forced into persecuting others.
PH: BIA:
Persecutor bar applies.As a matter of law (precedent on statutoryinterpretation) there is no exception to the persecutor barbased on
duress.
Fifth Circuit:
Affirmed
Neguises Defense: The BIA did not properly interpret the statute, and thus failed to read a
duress exception. Neguises persecution of others was done under duress. The
persecutor bar shouldnt apply where persecution of others was not voluntarily.
APA-specific Legal Issue:
(1) Whether the BIA properly interpreted the INA to have no duress exception and thus bar
an alien conscripted and compelled to assist in persecution from asylum, and
(2) Whether the Supreme Court had to give deference to/remand/reverse the BIAs
interpretation.
8/2/2019 Admin Law Final Notes Trimmed 20100422
51/129
51
Holding (1): Reversed. The BIA did not properly interpret the INA.
Reasons: The BIA did not exercise its agency authority to interpret the INA . Instead,
the BIA incorrecly assumed that the Supreme Courts holding in Fedorenko
controlled its statutory interpretation of the INA, and consequently, erroneously
decided that there was no duress exception.
2 Reasons Why Fedorenko did not control the BIAs statutory interpretation of the INA:
1. Distinction in Statutory Construction of the Fedorenko Statute and the INA
Fedorenko: InFedorenko the issue was the interpretation of a statute to determine whether
there was a duress exception. The statute at issue inFedorenko stated:
(a) to have assisted the enemy in persecuting civil populations of UN
members, or(b) to have voluntarily assisted the enemy forces since the outbreak of the
second world war in their operations against the UN.The Supreme Court inFedorenko held no duress exception because the inclusion of the
word voluntarily under section (b) and the failure to include voluntarily under
section (a) suggests that the omission was deliberate and therefore (a) is intended to
apply regardless of whether the actions were voluntary or compelled.
INA: Similarly, the issue here was the interpretation of the INA to determine
whether there was a duress exception. However, the Supreme Court holds that the
BIA improperly relied on and misappliedFedorenko because the INA did not have
with parallel provisions one containing a duress exception and the other notcontaining a duress exception.
2. Distinction in the political context of the Fedorenkostatute and the INA
Fedorenko: Congress enacted the statute after the Holocaust, in response to the
Nuremberg defense.
INA: It is unclear whether Congress enacted the INA in response to the equivalent
of the Nuremberg defense.
TAKEAWAY: TheFedorenko statute illustrates that since Congress knows how
to create a clear duress exception, the ambiguity as to whether the INA similarlydoes not contain duress exception suggests theFedorenko does not control the
BIAs interpretation of the INA.
8/2/2019 Admin Law Final Notes Trimmed 20100422
52/129
52
Holding (2): Remanded to the BIA. The BIA is charged with properly interpreting the INA to
resolve the ambiguity of the duress exception, in light of the fact that the court
holds thatFedorenko does not control.
2 Reasons:
1. Ordinary remand rule: Where we believe agency has made an error but might get it right
the second time around, then we should give them that second chance to get it right.
2. No Chevron deference to the BIAs original interpretation: A federal court may
overrule an agency decision only if the statute at issue is crystal clear, and the
agencys statutory interpretation is contrary to that crystal clear meaning of the
statute; in contrast, if the statute at issue is ambiguous, then the federal court should
defer to the agencys interpretation of that statute so long as that interpretation is
reasonable
Dissent to Holding (2):
Stevens: Took a different approach: Remand is a waste of time. It is our job to supply clarity
to lower courts. We should just decide whether there is a duress exception or not
r