Admin Law Final Notes Trimmed 20100422

8/2/2019 Admin Law Final Notes Trimmed 20100422

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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


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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


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- 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


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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.


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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.


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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


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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


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:


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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


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.


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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


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(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


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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


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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


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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


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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.


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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.


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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


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- 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


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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


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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


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- 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


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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?


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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


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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.


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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


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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.


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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.


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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.


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Rulemaking:

Affects a lot of people

o Proscriptive


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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.


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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


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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


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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


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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


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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


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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


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(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


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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.


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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.


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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:


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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.


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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.


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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.


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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


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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


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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


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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?


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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.


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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.


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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.


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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.


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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.


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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

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