Administrative Law - Pierce - Fall 2005_4

8/20/2019 Administrative Law - Pierce - Fall 2005_4

1/35

I. Introduction - ADMINISTRATIVE PROCEDURE ACT (APA)

(1) Judicial Review - (what standards apply and when it is available) § 701- 7063 Four decision a!in" procedures that a"encies can or ust use#

1$ Foral ad%udication - §§ &&'-&&7a$ ecision on the record a*ter an opportunity *or an evidentiary a"ency

hearin"$+ b$ ,utside consultants ust provide all parties the opportunity to participatec$ Judicial Review- § 70# .nyone wron"ed by *inal a"ency action is entitled toreview

$ /n*oral ad%udication - § &&&3$ /n*oral Rulea!in" - (three step process# notice coent *inal rule) - §&&3

a$ otice# 2ublication in the Federal Re"ister b$ oent# /ndustry participation and consideration o* proposed rulec$ /ssuance# Final rule accopanied by reasons and rationale

'$ Foral Rulea!in" - §§ &&3 &&6 &&7() opetin" analysis4paradi"s - the act doesn5t really tell an a"ency when to use one

procedure or another# oe can be li!ened to any o* these three# (1) Judicial () 8rial9e"islation (3) :ureaucracy - increasin"ly courts are usin" the analo"y o* soe o* each$

Congress President Courts I I I

I I I

I I I

Agencies ."encies are subservient to the 3 branches however each has soe de"ree o* control over the

a"encies$ /t varies w4 the decision-a!in" conte;t$

II. AGENC AD!UDICATIONS(1) .2. §§ &&'-&&7 - (8here are alost 10 illion a"ency ad%udications a year so the actdescribes a procedure that cobines all eleents above *or the sa!e o* e**iciency)$ 8he .2.says that procedures (*oral) under §§ &&'-&&7 only apply to decisions on the record a*teropportunity *or a"ency hearin"$+ /* the statute doesn5t speci*ically say that the .2. applies

1$


2/35

a$ %ondonner *. Den*er (Indi*idu&+i,ed Ru+e En#orceent) The city of Denver sends P a notice that the agency has determined his property has increased in valued,

and therefore P must pay the increase in property taxes. P demanded a hearing tobring forth and contest evidence. The city denies P a hearing and threatened seizure.

P brings suit. ?# upree ourt says that due process entitles 2 to soe !ind o*

hearin"$ 8he city is clearly tryin" to deprive 2 o* property w4o due process bases oncontested evidence o* an increase in property value$ R# @here there is deprivationbased on individual facts, due process with some hearing is required $

b$ i-Met&++ic In*estent *. Den*er (Counit$-/&sed Ru+e En#orceent) .nother enver resident is noti*ied that his property ta;es are to increase b4c o*risin" adinistrative costs$ 2 brin"s suit and deands a hearin"$ ?# 8he upreeourt holds that 9ondonner has no application to this case b4c the prior case was based on the clai that the property had increased on value and this is about a ta;that is levied on an entire class o* persons ("enerali>ed le"islative *acts)$ 8here*orethe 25s clai is ore appropriately ad%udicated in the political arena$ R# /n contrast to9ondonner a "overnent decision that imposes a burden on a class of persons ,

based on facts that is in the realm of the legislature , does not entitle an individual to rule o* law or due process only access to the political process$

.$ ,utside :oundaries o* ue 2rocess Ri"hts Aoldber" v$ Belley (upree ourt)# NY residents receiving welfare from a federal aid program!"D#$ didn%t receive a hearing or notice prior to the termination of their aid. P%s challenged

the constitutionality of those procedures b&c there was no opportunity for the recipient to appear personally, for examination or cross examination. ?oldin"#

(1) St&tutor$ Entit+eents li!e wel*are bene*its are considered property() Due 0rocess re1uires a recipient to receive a *ull pre-terination oral evidentiary

hearin" (b4c waitin" until a*ter directly a**ects the livelihood o* the recipient)$ 8hecourt holds that the "ovt$5s interest in *iscal conservation does not override in thewel*are conte;t b4c they can be prevented thru e**icient pre-terination hearin"s

(3) T$0e o# 2e&ring- 8he hearin" doesn5t have to be a %udicial one it ust provide aninitial deterination (no need *or a record coprehensive opinion

(') Note .F replaced with 8.F that says in that statute$ does not "ive theindividual a property ri"ht $

:$ Catthews v$ Dldrid"e 8est Catthews v$ Dldrid"e (upree ourt)# . pre-terination hearin" is not reEuired prior to theterination o* disability bene*its b4c the present adinistrative procedures coport with due process$ 8he procedure used by the a"ency to cut o* social security disability bene*its wassiilar to Aoldber" in a hearin" was only reEuired post-terination$ 8he court *inds that the plainti** is not entitled to the pre-terination hearin" because social security bene*its aredi**erent than wel*are bene*its in that they are not eans tested (not based on incoe - inAoldber" it was about deprivin" a person5s eans w4 which to live) wel*are bene*iciaries are"enerally less educated while the disability recipient does not need to articulate his4her side because the doctors do ost o* the wor!) 8here*ore unless it is li!e the eleents o* Aoldber"i$e$ sheer livelihood and no way to articulate in writin" etc an oral hearin" is not reEuired$ R#


3/35

8he court used an interest balancin" 3 *actor test to see is a pre-terination hearin" is reEuired$(these are hi"hly sub%ective and very di**icult to apply however)

(a) 8he iportance o* the interests at sta!e$i$ @el*are (critical aid+) v$ isability

(b) Ris! o* error throu"h the use o* procedures ade available and increental value o*

additional procedures$i$Aoldber"# ecision based solely on eyewitness testiony- hi"h error ris! ii$ Catthews# @ritten edical reports reliably+ described condition- no error ris!

(c) 8he "overnental interest in procedural e**iciency (the cost o* additional procedures)i$ Financial burden alone is not enou"hii$ Cust consider adinistrative costs

$ Codern 8est (Roth 8wo-tep)(1) eterine i* ue 2rocess .pplies# 9i*e 9iberty or 2roperty /nteresta$ /s there a property ri"ht ation$ @e were concernedabout sti"ati>ation and deprivin" hi o* ability to "et boo>e$

$ 9iberty can include any other constitutionally protected interest (thin! bill ri"hts)

3


4/35

(a) Roth - canIt be punished *or e;ercisin" a liberty interest (*ree speech)i$ /* *ired *or no reason or in a way that doesnIt hurt reputation no protected interest$

3$ .pplies in Aovernent eployent cases where people are canned *or reli"ious belie*s even thou"h they were at will$+

() .pply the Catthews v$ Dldrid"e *actorsa$ 8he iportance o* the interests at sta!e$ b$ Ris! o* error throu"h the use o* procedures ade available and increental value o* additional procedures$c$ 8he "overnental interest in procedural e**iciency (the cost o* additional procedures)KKKKKKK


5/35

1$ ."ency head ay receive evidence otherwise inadissible by FRD (li!e hearsayN.2. § &&6 = all relevant evidence+ allowed)$

(a) Richardson v$ 2erales# Disability hearing post)deprivation$ where !4 gets evidence from five specialists who are not present5classic hearsay. The !4 rules against

applicant even though he testified. ?# ."ency can adit such evidence i* it is reliable

and use*ul$ .n a"ency can base a *indin" o* *act exclusively on hearsay even when 2edroO his doctor are the only truly adissible evidence as alon" as the hearsay evidence isreliable$

i$ an subpoena witnesses (li!e & specialists) to cross the but i* not subpoenaedthen no ri"ht to cross

(1) .9J discretion whether to "rant subpoenas$ Res Judicata# /* an issue o* ad%udicated *act (labor dispute) is decided res %udicata is applied$

(a) For le"islative *acts the a"ency ust be able to coe bac! and a!e new decisions(e;--relationship btw theral pollution or e**ects on aEuatic li*e)$

i$ Ca!e sure it is the sae *acts (disability *or sae person in 003 v$ 00&NnoRJ)

3$ tare ecisis# ."encies are not bound by precedent but ust e;plain why it is not adherin" to precedent (standard to overturnarbitrary and capricious)$'$ ollateral Dstoppel#

(a) /ssue o* Fact# ollateral Dstoppel precludes an individual *ro re-liti"atin"#(1) /* it the sae issue o* *act() 8he a"ency provides enou"h procedural sa*e"uards (circuit split)#

a$ oe courts deand court li!e procedures (cross4evidentiary hearin") b$ oe courts only as! *or due process

(b) /ssue o* 9aw#(1) ollateral Dstoppel applies i* an a"ency a!es a deterination o* the applicability o*soe law to a person the a"ency is bound to that decision$ /t is not bound to thatdecision with respect to any other person$

i$ o ollateral Dstoppel *or le"al4policy issuesii$ o ollateral Dstoppel a"ainst the "ov5t$

&$ DEuitable Dstoppel# o eEuitable estoppel a"ainst the "ov5t (no case has ever *ound DD *or"ov5tNaybe in a case o* "ross intentional isrepresentation)

(1) /R hotline and Federal rop /nsuranceNeven where the "ov5t isin*ors you noDD$

6$ ."ency non-acEuiescence# ."ency has to *ollow the orders o* a court in a particular case butdoes not have to *ollow the rulin" o* the court in siilar cases$ 4udges hate this practice.

(3) Foral .d%udication and :ureaucratic ecision-Ca!in"1$ Aeneral

a$ :ureaucracy v$ ad%udicationi$ .d%udication# ourt style where "et an independent detached view by the %udicial ind to aid the individualii$ :ureaucracy# @ants to *ind e**icient low cost way to a;ii>e accuracy andconsistency (no *ocus on individual)

b$ /ndividual ecision (%ud"e) or /nstitutional ecision (bureaucrat)i$ .2. &&'-&&7# hi"hly independent %ud"es O ipossible to discipline$

&


6/35

ii$ .2. &&7(b)# a"ency can substitute its own opinion and *indin"s o* *act *or the.9J5s decision and they do that a *air aount$iii$ 8hen you loo! at 706()(D)# ourt ust uphold the a"ency5s *indin"s o* *act i* they are based on substantial evidence$ e*erence to the a"ency not the .9J$

$ eparation o* Functions

a$ ."ency ecision a!in" odel (er"in" *unctions)# the a"ency a!es the rulesen*orces the rules investi"ates violations prosecutes violations and then ad%udicates$ b$ .2. Codel v$ plit Dn*orceent Codel

i$ .2.# Functions er"ed with separation within a"ency$ .9J ad%udicates bureaucrats investi"ate and prosecute a"ency head can overrule .9J$ii$ plit# Rulea!in" and en*orceent are split in a"encies (e"N,?. O,?R)$ Core *air but ore ine**icient$

3$ Cana"in" .d%udicatory 2ersonnel (.9Js)a$ tudy o* . shows the bi""est *actor in deterinin" the outcoe o* a decision is the

.9J$i$ 2robles# /nconsistency 9on" waits ,ver tie ore .9Js are sayin" yes

b$ 8raditional ways o* liitin" discretion o* %ud"es (so they can5t indul"e their personal pre*erences)#1$ irect review (hierarchical syste o* reviewNa"ency can rely on &&6b)$ Rules =le"ally bindin" rules o* conduct to chec! %ud"es because . wants li!ecases should be decided in li!e anners$

c$ ash# 22! established a 3uota of 67( cases a year and then mandated that !4s say yes in 7( to 8( percent of the cases who come before you. !4s say that the 22! isinterfering with their decisions and file in district court. ?# 8he district %ud"es ruled *orthe .9Js$ 8hree circuit courts loo! at the validity o* the wor!load reEuireent (they say itsees not %ust reasonable but essential)$ ,ne circuit court reaches the Euestion o* the"uidelines are constitution and they say it is also alri"ht$ o ircuits uphold a"ency$d$ ?ec!ler v$ apbell# 9efore :ec*ler, the court would determine through hiringvocational experts that testified in every administration law case before an !4. :ad tohire a lot of vocational expert, their assessments were inconsistent, and had to wait a

long time for them. 2o 22! creates a grid where !4s plug in age, education, experience,

and health status. This eliminates '&; of the hearing time and the 3ueue is lessened. ?# 8he upree ourt says upholds the "rid rules b4c it will increase e**iciency and*airness and a"ency ay control ad%udication with rules i* allowed by enablin" statute. epowers ecretary to adopt reasonable and proper rules$+ ?ere the bene*its o*increased e**iciency O *airness outwei"h the costs o* loss o* individuali>ed attention$e$ :owen# 22! comes up with the five)step mandatory decision ma*ing se3uence for !4s. !4 is instructed to stop after step 6 if the individual does not suffer from a severe

impairments from the list provided so factors li*e age, experience don%t get considered. ?# 8he Justices ultiately say it is alri"ht but they are uneasy about it$ ees that we "eta si"ni*icant reduction o* people that are "ettin" bene*its$ oncurrin" opinion .9Jsshould be able to "o beyond step and put all the evidence$

i$ 9ower courts !new . was turnin" down ore people and they were be"innin" to send bac! ore cases based on arbitrary or capricious$ 8heir reversalrate was "oin" up$ o . chan"ed it anyway a*ter the upree ourt said that itwas alri"ht$

6


7/35

'$ .voidin" .d%udication throu"h Rulea!in"a$ .irline 2ilots .ss5n# "!! rule that pilots over 8( can%t pilot commercial airliner. ?#?# .r"uent is that there should be e;ceptions where there is a hearin" to show that you(over 60 person) are in per*ect health$ /t is always denied because the accuracy problescould result in the death o* a lar"e nubers o* passen"ers$ t says F.. epowered to

*rae rules *or sa*e and e**icient air space usa"e$ F.. e;tensively researched retireenta"e without a *oral hearin"$

IV. Adinistr&ti*e Ru+e&3ing

1$ ."ency .uthority to a!e 9e"islative Rulesa$ Rulea!in" by ad%udication

(1) @ith issuance o* a "enerali>ed broadly applicable rule o* conduct() ourts do it all the tie = en"a"e in rulea!in" in the course o* ad%udication(3) ."encies can and do the sae thin"

i$ :ut a"encies don5t need to use ad%udication li!e courts could %ust issuerule

b$ .2. § &&3 = /n*oral Rulea!in"(1) /ssue public notice in Federal Re"ister o* potential rulei$ Cust *oreshadow the *inal ruleii$ :e to those that will be a**ected

() 2rovide opportunity *or public coent on the potential rule(3) /ssuance o* #in&+ ru+e with st&teent o# /&sis &nd 0ur0ose

i$ .deEuately respond to all coents alternatives criticissii$ Cust be a lo"ical out"rowth o* notice and coent

c$ Foral Rulea!in"(1) /* the statute says on the record a*ter opportunity *or a"ency hearin"+ a"encyust provide opportunity *or such cross-e;aination+ as ay be reEuired *or a*ull and true disclose o* the *acts$ &&3P O &&6(d)$

d$ § 706# ourts ust re%ect the a"ency rule i* it deterines the a"ency rule is arbitraryand capricious$e$ 9e"islative RuleNrules ade by the a"encies that carry the sae e**ect o* law$istin"uished *ro interpretative rules or procedural rules$*$ .dvanta"es o* issuin" le"islative rules#

(1) D**iciency# do not have to conduct never-endin" hearin"s() D**icacy# hi"her Euality answers b4c you "et the participation throu"hcoents o* all ebers o* the public and input in the decision-a!in"(3) Fairness# Dverybody who is a**ected can participate and the rule a**ectseveryone at once$


8/35

i$ F8 /proveent .ct = allows opportunity *or oral evidentiary hearin"and cross w4 respect to contested aterial issues (*oral rulea!in")ii$ @ay too uch tie and e**ort = F8 never issues rules anyore (eventhou"h have the power to)

$ Foral Rulea!in"

a$ .2. §§ &&6-&&7 eEuates *oral rulea!in" with %udicial trial procedures(1) Ca!e rules with an on-the-record evidentiary hearin" reEuires *oralrulea!in"() 8estiony cross-e;aination and rebuttal added to in*oral rulea!in"

b$ :aldor Dlectric# D= tries to use rulema*ing to implement >alsh :enly !ct re3uiring ?ov%t to only wor* with contractors paying prevailing minimum wage. ?# ,9statute reEuires *oral rulea!in" and so low wa"e *irs in outh and Cidwest as!*or an opportunity to cross-e;aine the people who provided the data$ ,9rulea!in" is dead b4c each rule a!in" would ta!e at least a decade$

(1) .ll too tie consuin" = no a"encies w4 that lan"ua"e in statutes ever issuerules b4c o* need *or the oral evidentiary hearin"

3$ /n*oral Rulea!in"Nubstantive ReviewN.rbitrary O apricious+a$ .2.§ 706# rule is unlaw*ul i* it is .rbitrary and apricious b$ 2aci*ic tates :o; O :as!et# 2up. #t. called on to determine whether the =regon

rule determining size of boxes in which it is lawful to sell berries. #alifornia box

ma*ers are suing. 2olitical Reasonin"# 8his is to protect ,re"on "rowers *roali*ornia produce$ ?# up$ t$ says this is not arbitrary and capacious b4c thecontainer is needed to protect public and i* a"ency i"ht have issued it *or soe plausible reason is o!$ /* there are plausible reasons that lawyer ade up - it5s o!$

(1) 8his is e;traordinarily alleable test but overruled by tate Far$c$ .uto 2arts# N:T2! statute says N:T2! go out and ma*e the highway safer in areasonable and practicable manner and you may use rule)ma*ing to implement it./

N:T2! ma*es rule stating starting at some point in the future, every car sold in the@nited 2tates shall have factory)installed head restraints detailed specs$. :ead rest

ma*ers challenge b&c they will lose their business. ?#(1) 8he a"ency had valid reasons# en"ineerin" structure and sa*ety o* the public

i$ 8he industry had the ability to coent be*ore the rulea!in"$() .uto 2arts reEuires a"encies to e;plain and docuent reasons *or decisions

d$ ational 8ire# N:T2! empowered to reduce traffic accidents and deaths./ N:T2!issues rule re3uiring permanent labels on all re)treaded tires.

'$ ts says there is not enou"h o* a relationship between peranent labels andsa*ety$ 8his is arbitrary and capacious$

6$ tateent o* basis and purpose ust adeEuately respond to all coentswell-supported alternatives and criticiss ade

i$ 9ist appendi; w4 scienti*ic data econoical *easibility etc$ii$ istin"uish *ro .uto 2arts where there were *ew ne"ative coentswhereas there were any ne"ative coents not responded to in at5 l$

e$ tate Far# Avery car re3uired to have automatic seatbelt or an airbag < +eagan thenrescinded the rule. ?# 8his is arbitrary and capricious$

(1) Rescission reEuires the sae reasoned decision analysis as rule proul"ation$() 8he burden is on any person tryin" to chan"e the rule$

Q


9/35

i$ Cust consider *easible alternatives li!e aendents to rule$ii$ For rescission there is a presuption that the e;istin" rule is correct

(3) 8he only study on the sub%ect shows that there was a &0M increase whenautoatic seatbelts were involved and ?8. claied that this was wron"(only &M) was not supported by su**icient evidence$

(') Ne' %&' o# In#or&+ Ru+e&3ing ."ency ust adeEuately e;plain whythey ade each o* the decisions reasonin" *ro the statutory lan"ua"e andavailable data$ ."ency ust respond to all well-supported criticiss and proposed alternatives in the coents$

i$ Cust coply with your duty to en"a"e in reasonable decision-a!in"(a) ts will not accept later lawyer-ade up rationale$

'$ 2rocedural ReEuireentsN/n*oral Rulea!in"a$ 4in&+ ru+e ust be the “logical outgrowth” o* the notice *ollowed by the coents$

Notice ust adequately foreshadow the *inal rule$i$


10/35

iii$ § &&3 does not reEuire an in*oral rulea!in" hearin"d$ D; 2arte ounications# usually allowed in in*oral rulea!in"

(1) ierra lub# >hite :ouse)pressured AP! power plant rule.i$ /ntra-a"ency contacts do not have to be recordedii$ 2resident can in*luence a"encies decision throu"h e;-parte

counications$() .ction *or hildren5s 8elevision (!ids pro"rain" rule)i$ D; parte counication ban li*ted$ii$ .pplies only when copetin" clais between two or ore people to avaluable privile"e+ then conversation ust be recorded and publici>ed

(a) 9ondonner cases (e; parteNno) O :i-etallic (e; parteNyes)ii$ /n*oral counication lets a"encies build support and easeen*orceent

(3) § &&6(d) bars e; parte counication in *oral ad%udications and rulea!in"e$ :ias# uty to provide unbiased decision a!er to settle disputes

(1) 8here are three "rounds on which a decision-a!er can be biased#

i$ Relational4personal (e"-related)ii$ 2ecuniary (e"-percent o* tra**ic *inesNCayor O Justice 2eace)(a) tate :oard o* optoetry disEuali*ies @alart optoetrists

iii$ 2re%ud"ent o* an issue(a) o* law

1$ ,pinion on issue o* law is perissible b4c want people whoare !nowled"eable$

(b) o* policy1$ :road opinion o* issue o* policy is perissible

(c) o* *act --9e"islative .d%udicative1$ ,8 allowed opinion on ad%udicative *act (e"Nprice*i;in")

() .ssociation o* ation .dvertisers# "T# is headed by a guy who is a populistconsumer advocate and "T# is engaged in a rulema*ing to determine whether it should ban certain *inds of advertising. To get political support so he goes on

tal* shows, pta meetings, and saying the ads are evil, immoral, and exploitative. (1) 8o disEuali*y a decision a!er ust show by clear and convincin"+evidence that decision a!er has an unalterably closed ind+ on aatter critical+ to the disposition o* the proceedin"$ (up$ t$ hasn5tdecided)$

i$ Cere discussion is insu**icient to disEuali*y because opinionso*ten chan"e

&$ D;eptions to § &&3 otice and oent ReEuireentsa$ ub%ect Catter

(1) § &&3(a) ub%ect atter e;eption# Cilitary *orei"n a**airs a"encyana"eent

b$ Aood ause(1) §&&3(c)# a"ency *or "ood cause *inds that notice and public procedure thereonare ipracticable unnecessary or contrary to the public interest+() Aenerally *or eer"encies = tou"h standard(3) an put rule in e**ect iediately but eventually ust do notice and coentary

10


11/35

i$ F.. O volcano in ?awaiic$ 2rocedural Rules

(1) 2rocedural rules are e;eptedNuse Drie to deterine di**erence btw substantiveand procedural$

d$ /nterpretative rules policy stateents and procedural rules (§ &&3(b))

(1) /nterpretative rules clari*y or particulari>e pre-e;istin" duties versus9e"islative rules ipose new duties and the sae ipact as statutes$() .erican Cinin" on"ress# 2:! issued rules re3uiring reporting ofillnessesE later, issued another rule saying if x)ray shows certain level, then it%s anillness and must be reported to 2:!. !# claims 6d rule is legislative and

must follow B CC; re3uirementsE 2:! says merely interpretive rule. ?# 8hecourt holds that this is an interpretative rule$ .pplies Four 2art 8est#

1$ ."ency says it is le"islative$ 2ublished in FR

i$ o si"ni*icant %ust evidenceii$ o si"ni*icance to lac! o* publication in the FR$

3$ Dn*orceent action could not ta!e place without the rulei$ Rule 1 is le"islativeNit a!es ine owners do soethin" butwithout it then rule would not wor!$ /t clari*ies a pre-e;istin"duty$

'$ Rule is inconsistent with a pre-e;istin" le"islative rulei$ annot aend the le"islative rule e;cept by usin" another

le"islative rule(3) annot have a bunch o* narrow interpretative rules purports to interpret a

broad abi"uous le"islative rule$a$ ?ave to interpret soethin" eanin"*ul

(') 2olicy tateentsa$ otice and coent provisions do not apply to "eneral stateents o* policy b$ .n a"ency pronounceent will be treated as a policy stateent i* it

(1) /s tentative() /t in*ors the public and the a"ency sta** o* the anner inwhich the a"ency intends to e;ercise discretion w4 respect tole"islative rules$

c$ ourts are willin" to rely on the a"ency5s labeld$ ounity utrition /nstitute# "D! issues a policy statement/ saying it won%t enforce no feces rules in food. ?# ourt says this is tantaount tosayin" it won5t en*orce the rule$ ould a!e it a policy stateent bysayin" i"ht not en*orce+ below ; level$ Ca!es stateent lesseanin"*ul O ore va"ue$ 2olicies still the sae but seantics di**erent$

6$ Ca!in" .dinistrative 2olicy without 9e"islative Rulesa$ Ca!in" "eneral rules o* conduct

(1) an declare the throu"h ad%udicatory decisionsi$ .llows *or *luctuation o* policy within each adinistration

(a) .llows a!in" "eneral rules in cases and avoidin" oversi"ht*ro on"ress or political accountability$

11


12/35

() an use rulea!in" procedure o* § &&3i$ ourts soeties say can only use § &&3 not ad%udicatory cases (a) ever have had a a%ority o* the upree ourt say thisii$ .dvanta"es = *orward-loo!in" prospective parties are on notice andcan5t be surprised (ore transparency O political accountable)$

b$ 8he hoice :etween Rulea!in" and .d%udication(1) henery# 2A# used adFudication to announce broad rule about reorganizationand stoc*s. #henery tried to say needed to use B CC;.

i$ Reasons *or an a"ency to say / a not "oin" to use rulea!in"# (1)ould want to test the waters to see i* a "eneral rule would wor! ()"enerally un*oreseen probles$

(a) ."encies ay announce policy chan"es in ad%udication$ii$ Ru+e Court cannot interfere with agency decisions (un-reviewablediscretion) to chose rulemaking or adjudication to a!e "eneral rules o*conduct$

() @yan-Aordon# @nion election. 0n first election, union doesn%t get names of

eligible voters and N+9 held it was unfair but excuses company b&c it didn%t*now the rule. >)? does the same thing and N+9 says they have violated rule

issued in the other case. >)? challenges using adFudication to create rules. i$ 2lurality (')# on5t li!e it but it is law*ul$ Judicial precedent createsrules and 9R: could issue the order *or the rule to be coplied w4 (sonot penali>ed ri"ht away)ii$ issent() = on"ress clearly wants § &&3 to be used and can5t a!e prospective rules throu"h ad%udicationiii$ oncur(3)- authori>ed to use § &&3 but also had discretion to usead%udicative process

(3) Rui># 90! holds that have to live on reservation to get Native !mericanwelfare through adFudication. #ourt says you must use rulema*ing.

i$ :/. statute e;plicitly reEuired policy creation be accoplished inrulea!in"$ii$ § 706# Rules ade w4o *ollowin" internal "uidelines are arbitrary andcapriciousiii$Rui> is unusual decision b4c :/. did not *ollow its own policy a!in""uidelines

(a) henery // is still the law upheld a*ter this case in :ell$c$ Rulea!in" ,ssi*ication

(1) ."encies don5t a!e rules anyore and don5t aend those adei$ 8oo e;pensive = even § &&3 procedure burdensoe

(a) 30M chance rule with be overturned as .O$ii$ 8here is increased presidential and con"ressional oversi"ht

(a) ,C: has increased review o* rules (cost4bene*itreview) includin" a data Euality review$

iii$ D;ceptionon"ress says a"ency ust resolve issue by rule(a) lean .ir .ct (issues ust be resolved by rule) andCedicare .ct (all rules *or copensation o* providers ust be resolved by rule)$

1


13/35

d$ e"otiated Rulea!in" .lternative (Re"-e")(1) /ndustry ne"otiation produces siilar re"ulations without costly procedures() /ndustry consensus renders le"al copliance oot since the rule won5t be challen"ed

(3) oluntary copliance probably provides less protection thanre"ulation(') e"otiations typically *ail *or rules involvin" any parties and anyissues

V. Suits to Re*ie' &n Adinistr&ti*e Action

1$ cope o* Reviewa$ 2resuptive but 9iited Review (,verton 2ar!)

(1) .2. § 706# ."ency actions are sub%ect to %udicial review unless#i$ Dnablin" statute e;pressly prohibits %udicial reviewii$ on"ress clearly intended to prohibit review by coittin" to a"encydiscretion

iii$ reates a power*ul presuption o* reviewability o* a"ency actions b$ ,verton 2ar!# #ongress passed "ederal !id to :ighways !ct telling D=T their Fobwas to fund interstate highways in accordance with routes determined by state highwaycommissions. D=T is forbidden to fund a highway through a par* unless no feasible or

alternative routes exist./ D=T approves a par* through =verton Par* in emphis and

the citizens preserve say D=T there are alternate routes. 2tatute says nothing about itbeing subFect to review and no reason provided for decision)ma*ing stamp on a map$.

(1) 2resuption o* reviewability = can only be rebutted by lear and onvincin"evidence that on"ress intended to preclude review - § 701

i$ ow don5t need clear and convincin" evidence that on"ress intend itnot to be reviewedNJust loo! to see 4 in*er what con"ress wanted

ii$ ."ency ust *ollow statutory criterionNhere a *easible alternativee;ists to the route throu"h the par!$iii$ ,verton 2ar! said you could e;aine the decision-a!in" but nowyou can only e;aine the decision-a!er where you present power*ulevidence o* wron"-doin" (e"-bribery)$

() ot sub%ect to %udicial review i* a"ency action is coitted to a"encydiscretion by law - § 701

i$ ,*ten eans there is no %usticiable standard to apply(3) .2. standard applies only when there is no law to apply+(') tandard o* review searchin" and care*ul+ thorou"h probin" in depth+and narrow+ still "ood law

$ /nterpretations o* 9awa$ hevron v$ R# ust give reasons to create new source of pollution. AP! initially said that each piece of combustible e3uipment is a source of pollution, but this meant

manufacturers couldn%t replace old e3uipment in their factory with new e3uipment. AP!comes up with bubble concept allowing source to mean entire factory and e3uipment to

be replaced. ?# 8he court says we are the worst people to be a!in" policy decisions$."encies are not directly accountable but they are indirectly accountable (all a"encieswor! *or the president)$ 2olitically unaccountable %ud"es cannot second-"uess politically

13


14/35

accountable a"encies$ 8hey did not say in hevron that source eans a whole plant site$8hey said D2. is ore politically accountable and so it "ets to decide what is ri"ht$.nnounces hevron 8wo tep$ b$ hevron 8wo-tep

(1) id on"ress clearly and e;plicitly resolve this Euestion (issue o* law)

i$ on"ress ay e;plicitly prescribe a statutory de*initionii$ ."encies ust re%ect statutory construction contrary to clearon"ressional intent (/ v$ ardo>a-Fonseca)iii$ ourts ust apply traditional tools o* statutory construction+#

(a) ictionary de*inition42lain eanin" Rule(b) 9e"islative history(c) tatutory "oals

1$ on"ress o*ten has any di**erent "oals (d) anons o* onstruction (/ v$ -F)$iv$ /* on"ress has spo!en neither a"ency nor court ay alter this pronounceent$

() /* not a court ust uphold any reasonable a"ency construction orinterpretation o* the statute$i$ /* on"ress hasn5t addressed it than an issue o* policy which either

on"ress can resolve or leave it to the a"ency = (a) :ut ourts can5t substitute their interpretation b4c they5re not politically accountable

ii$ 8o deterine i* reasonable can5t be arbitrary and capricious$ ourtdeterines under tate Far test$

(3) hevron applies to le"islative rules and *oral ad%udications$c$ cope o* hevron# Cead# Tariff classification of imported noteboo*s do not have#hevron deference.

(1) hevron e*erence applies to le"islative rulesi$ hevron applies to notice and coent rulea!in" and *oralad%udication$

() /nterpretative rules policy stateents in*oral ad%udicationi$ hevron de*erence ay apply based on all the *acts and circustances+ii$ ustos lassi*ications# on5t warrant hevron de*erence b4cthousands are ade by low level personnel without underlyin" reasons or precedent valueiii$ !idore e;pertise de*erence is ore appropriate *or ustosclassi*ications (wea!er de*erenceNall * O c test)

(a) reasons that atter sense to us (not de*erence)(b) a"ency put a lot o* tie O ener"y into deliberation on theatter (sub%ective) and(c) consistent in interpretation(ost iportant ust be a

consistent will prior interpretations)3$ ubstantial Dvidence 8est

a$ § 706 = court shall decide Euestions o* law+ and uphold findings of fact i* supported by substantial evidence+

(1) ourt will not set aside a"ency *indin" i* supported by substantial evidence

1'


15/35

b$ onsolidated Ddison O Lniversal aera# et *orth the substantial evidence test$(1) ubstantial evidence is such relevant evidence as a reasonable ind i"htaccept or adeEuately to support the conclusion+ considerin" both the evidencethat supports the *indin" and the evidence that detracts *ro it whole record$+

i$ @hole recordsubstantial evidence not erely on one side$

ii$ ."ency5s *indin"s o* *act ust be upheld but not the .9J5s *indin" o**act (these are erely part o* the record that the reviewin" court ustconsider)$

c$ 2erales# Reliable hearsay is considered substantial evidenced$ 9R: v$ ?earst# Newsboys want to unionize. The issue is whether they are employeeswithin the N+!.

(1) e*erential 8est# ourt upholds the a"ency conclusion i* it has warrant in therecord and a reasonable basis in the law+

i$ 9oo!s to the on"ressional intent in enactin" 9R.(a) 8o provide sa*e"uards to industrial wor!ers prevent bloodshedin resolution o* disputes and balance bar"ainin" power

ii$ Aiven on"ress5s intent should newsboys be eployees(a) an a reasonable ind accept the evidence as supportin" thea"ency5s decision$(b) Core o* a policy issue then one o* *act or law$ oesn5t see to be an issue *or the court but *or the a"ency

'$ Review o* cience :ased ecisionsa$ .erican 2etroleu /nstitute (:en>ene ase)# 9enzene case < dispute to permissiblelevels of toxin. =2:! passed standard < low, and !P0 contests b&c so costly.

(1) 2lurality# ,?. ust *ind that the pree;istin" level presents a si"ni*icanthealth ris!+ so that a new lower standard is reasonably necessary or appropriateto provide sa*e or health*ul eployent and places o* eployent+

i$ 8his lan"ua"e not in statute but any other readin" o* the statute wouldlead to over-dele"ation o* le"islative power$

(a) 2lurality doesn5t want to hold statute unconstitutional(b) @ants to *orce a"ency to be ore rational and selective in itsdecision-a!in"$ @ants a reasoned nuber$

1$ Ris! at previous level was necessary *act unsupported bysubstantial evidence$+

ii$ 8his increases that aount o* analytical e**ort that ,?. has andreduces the nuber o* rules it can issue$

() oncurrence (RehnEuist)# on"ress cannot dele"ate policy decisions to politically unaccountable bureaucrats$ tatute is unconstitutional$

i$ Jud"es should distin"uish between ere policy Euestions and*undaental policy Euestions$

b$ @hat approach should a court ta!e when it con*ronts probles o* this type(1) ircuit (9eventhal)

i$ :ecoe iersed in the sub%ect that they are reviewin"ii$ ReEuire coplete ventilation throu"h procedures li!e cross-e;ainationiii$ e*er to a"encies based on lac! o* certaintyiv$ cience ourt

1&


16/35

() :en>ene Revisited# ,?. provided substantial evidence o* si"ni*icant healthris!+ and lowered the standard$

VI. A*&i+&/i+it$ o# !udici&+ Re*ie'

1$ Reviewabilitya$ tatutory 2reclusion

(1) .2.§ 701(a)(1)# Dnablin" tatute ay preclude %udicial review() .2.§ 701(a)()# on"ress ay coit to a"ency discretion by law;$ Johnson v$ RobinsonG #ontentious obFector wants to gets the ?0 bill. H! says

obFectors can%t have ?0 bill - guy argues decision is unconstitutional.i$ t says ."ency intended to preclude %udicial review o* a"ency decisionsnot constitutional Euestions$

(a) 9e"islative history is clear that on"ress did ,8 want %udicialreview *or alternative service+ *or conscientious ob%ectors$(b) on"ress did not want review b4c wanted to avoid burdenin"courts and a"ency and Beep courts *ro inter*erin" w4 e**iciencyo* a"ency decision-a!in"$

(') .daa @rec!in"# #lean !ir !ct says you can only challenge the validity of arule within ;( days of issuance. #t upholds ;()day limit on review of agencyaction.

i$ 30 day liit is ,B = :L8 petitioner ay challen"e on other "rounds(a) e*initional "rounds (a"ency not authori>ed to issue this typeo* rule)

b$ oitted to ."ency iscretion :y 9aw(1) oe# #0! doesn%t li*e gays and fires them if it finds out. ?uy get fired andthese statute says you can%t review it. #ts says it is committed to agency discretion?# ourt loo!in" at wordin" and conte;t$ 8he ourt says that statutory lan"ua"eoo>es discretion O ational ecurity .ct is very de*erential

i$ ."ency discretion prevails i* statute has no standards that a court canapply$ii$ ilence iplicitly bars review# on"ress ust use lan"ua"e ensurin"reviewiii$ 2olitical Suestion doctrine prohibits constitutional Euestions$

() ?ahn and 9an"evin# ":! and :@D have a wide variety of subsidized housing programs that they administer where they rely on private investors to provide

low)cost housing. ":! ma*es decisions on rent increases and the issue is whether this is subFect to Fudicial review. ' st and 6nd #ircuit hold that it is N=T reviewable

52tatute silent about review.

i$ ?ahn (1st) had a three part test#1$ eed *or %udicial review to protect the class o* plainti**s$ /pact o* %udicial review on the a"ency (no a"ency li!es it)3$ .ppropriateness o* issues *or %udicial consideration (paraphraseo* the no law to apply standard *ro ,verton 2ar!)

(a) Jud"es aren5t "ood at *inances so these classes o*decisions are coitted to a"ency discretion by law$

ii$ 9an"evin (nd)# ays statute iplicitly precluded review

16


17/35

i$ 8here is a %usticable standard there is a law to apply but b4c §701 the statute iplicitly precludes review b4c didn5t "ive a law toapply

(a) :asically up to on"ress = pierce li!es this$ Reviewability o* ."ency ecisions ,8 to .ct (."ency /naction)

a$ Review o* En#orceent iscretion b$ unlop v$ :achows!i# 9achows*i loses a @nion election and as*s D= to investigateand they refuse.

(1) tatute says ,9 shall overturn the results o* a union election i* there was probable cause thatT+

(a) 9an"ua"e o* coand couple w4a %usticiable standard created aeanin"*ul standard *or %udicial review$(b) ."ency en*orceent inaction is only sub%ect to liited %udicial review

() 8he ourt says the a"ency has to "ive rational reasons *or denyin" :ach5scoplaint$

(a) ."encies o*ten "ive lac! o* resources as rationale *or a"ency inaction$

unn where D= refused to investigate another union election initiatedthis clai *or lac! o* adeEuate resources$c$ ?ec!ler v$ haney# >hen use lethal inFection and you inFect a whole bunch of the druginto a person and they die. !nti)death penalty files a complaint with the "D! alleging

that drugs used for lethal inFection are not safe and effective. "D! does nothing.

(1) up t says there is a 2resuption o* Lnreviewability *or a"ency inaction(decision not to brin" an en*orceent action)$

(a) 2resuption is rebuttable by statute or le"islative rule that coupleslan"ua"e o* coand with a %usticiable standard$ unlop still "ood law$(b) F. statute does not contain the lan"ua"e o* coand and is notreviewable$P oesn5t apply to policy stateents because they never have crisp clearlan"ua"e o* coand$(d) /nterpretative rule cannot copel reviewability but the a"ency couldhave an abi"uous le"islative rule that was interpreted to ipose on it aduty act in circustances speci*ied in the le"islative rule$

d$ Review o* ."ency iscretion to Re"ulate(1) § .2. &&3(e)# provides ri"ht to petition *or rulea!in" and reEuires a"ency to"ive reasons *or re*usin"$

e$ R v$ D# Anvironmentalists and #ivil +ights groups want 2A# to re3uire allcorporations to include in their reporting very detailed reports on their environmental

practices and employment practices respectively. 2A# does a rulema*ing but only issue adecision re3uiring compliance statements.

(1) ecision not to issue a rule at the end o* rulea!in" is reviewable based onrecord ("iant record to review)$

*$ .erican ?orse 2rotection .ssociation# #ongress said we pass a statute banning the practice of soring and assigns responsibility for this statute to D=!. D=! refuses to

issue a new soring rule.

(1) Re*usal to initiate a rulea!in" is reviewable() Rulea!in" inaction is di**erent *ro en*orceent inaction because#

17


18/35

i$ /n*reEuent (every 10 years) challen"es do not burden a"ency$ii$ /naction based on a le"al reasonin"

iii$ Lnder § &&3 a"ency ust "ive reasons *or inaction su""estin" thaton"ress wanted courts to review this$

(3) ecision not to initiate a rulea!in" is rarely overturned

i$ ?ere only b4c ,. went a"ainst on"ress its own study cra>inessT3$ Reviewability# 8iin"a$ .n a"ency action5s reviewability is deterined by the *inality ripeness and e;haustion$ b$ ."ency action is reviewable ,@ i* (§ 70')#

(1) Final a"ency actioni$ ."ency5s last word on the atter (ust have copleted decision-a!in" process)

(a) Cust be ta!en by the *inal decision a!er (b) Cay not be eEuivocal

ii$ ?as le"al e**ect4concrete e**ect() Ripe *or review

(3) D;hausted all adinistrative reediesi$ 2etitioner ust overcoe all three plus it ust be reviewable in *irst placec$ Final ."ency .ction# alton v$ pector# D=D is doing base closing. D=D recommends baseclosings then 9## issues its report and President can say yes or no to all the recommendations.

(1) Lnreviewable under .2. b4c 2resident not an a"ency and 2res *inal sayN 2residential decisions are not reviewable under the .2. unless there are constitutionalissues$

i$ ot have le"al e**ect until 2res$ .cts so a"ency action has no le"al e**ect ordirect conseEuences so not a *inal a"ency review$

d$ DF v$ ?ardin# DDT cases. AP! initiates a cancellation DDT, but does not suspend DDT procedures. 0s the lac* of suspension a final agency decision subFect to reviewI ?# .n a"encies

inaction can be held to be a *inal order i* it is an eEuivalent to an order denyin" relie*$(1) ecision to initiate ancellationi$


19/35

d$ ."ency elay O opellin" ."ency .ction(1) 2otential Reedies - § 706

a$ ourt can order a"ency to act i* action has been unreasonably delayed+i$ :ut so any reasons *or delay possible# resources proceduresT hard*or court to step in doesn5t solve probles O a"ency still i"ht not be

able to act b$ tatutory eadlinesi$ on"ress can set deadlines on a"ency action

(a) on"ress not !now priorities or probles wouldn5t wor! '$ Reviewability# Ripenessa$ Ripeness arises "enerally when soeone wants pre-en*orceent review o* a rule

(1) .n inEuiry as to whether an issue that is presented to a court is su**icientlycrystalli>ed *or review this coes up ostly in the conte;t o* a pre-en*orceentdecision$() ourts are not supposed to be the ones to decide the cople;ities o* the *acts (i$e$ thescienti*ic and technical Euestions) rather courts are better able to %ud"e the procedure

used and whether the a"ency acted in a reasonable anner$ b$ ,ld 9aw# wait until a"ency had attepted to en*orce a rule and done so badly$ Record would be the en*orceent hearin"$c$ .bbot 9aboratories# "D! ma*es a rule, everytime/ rule, that said you had to put genericname on all labeling, advertising under the brand name of drugs everytime./ Pharms

challenge. ?# up$ t says this rule is ripe O announces a test on pre-en*orceent review#(1) id on"ress intend to *orbid pre-en*orceent review

i$ 8here is a 2resuption o* Reviewability $ii$ on"ressional intent to preclude review ust be shown by clear andconvincin" evidence+ to overcoe presuption o* reviewability$

() .re the issues a court is bein" called upon to resolve appropriate *or %udicialresolution at this tie in this abstract conte;t

i$ 8oilet Aoods# "D!%s inspectors would often arrive at a plant and be deniedaccess. "D! issued a free access rule/ stating that our regulatees are re3uired

to give our inspectors free access if you don%t we will revo*e your certification$ ?# ot Ripe *or review under .bbot$ (1)o ()

(a) 8his isn5t the !ind o* Euestion o* law that can be resolved in theabstract =it is hi"hly *act dependent$(b) V ust wait until access attepted and then deonstrate why accessunder those circustances is arbitrary and capricious(c) (3)8he court went on to say that all the a"ency was "oin" to do wasrevo!e your certi*icationN2oor Reasonin" because this is a bi" deal

ii$ Reno v$ atholic ocial ervices# Pre)enforcement review of benefits ruledenied. ?#

(a) annot review bene*its rules until bene*its have been denied b4c thereis no *actual basis *or denyin" bene*its so cannot be dealt with in theabstract conte;t$

iii$ 8hunder :asin# 8ry to "et pre-en*orceent = in statute con"ress providede;plicit alternative *or review so intend , pre-en*orceent review

(3) @ould petitioners su**er hardship as a result o* a decision to de*er review

1G


20/35

i$ Dverytie+ rule reEuired dru" copanies to spend lots o* oneyii$ Reno v$ atholic ocial ervices# o hardship until bene*its denied

d$ 2roble# 8here is no en*orceent proceedin" to use so ust use the record created by noticeand coent rulea!in"$ tateent o* basis and purpose ust response adeEuately to allcoents$ .bbot leads to lon" e;pensive rulea!in"$ Cashaw has been ur"in" the upree

ourt to overturn .bbot 9abs$e$ /llinois ounsel ,n 9on" 8er are# a ' way split indicates that there is no lon"er the presuption o* pre-en*orceent review deonstrated in !bbott and =verton$

&$ Reviewability# D;haustiona$ 8his is a purely Fudge)made doctrine set *orth by up$ t in a *ew opinions$ b$ hallen"er ust e;haust all reedies be*ore they can "et %udicial review$c$ Cyers v$ :ethlehe teel orporation# N+9 wants to conduct a hearing to determinewhether 92# has committed an unfair labor practice. They don%t have Furisdiction - 92# wants

to enFoin N+9 from determining whether N+! applies.

(1) ."ency has initial decision on whether there is %urisdiction

() Cust "o throu"h all a"ency reedies be*ore brin"in" it to court$(3) istin"uish *ro .C2 where the court classified stents as drugs statutoryinterpretation is appropriate *or %udicial review$

i$ ?ere this issue o* whether it is / is a *actual issue le*t to a"ency discretion$d$ CcBart ase# Hietnam war draft cases. You didn%t want to be 0)!. cJart was in a statuscalled sole surviving son category 0H)!$. cJart never challenges his classification until he

doesn%t show up for pre)induction physical and is arrested. ?# up$ t$ held it was o! he didn5te;haust his reedies$ 8oo! into consideration these reasons *or doctrine#

(1) .void preature interruption o* a"ency decision-a!in" process() .llow a"ency to develop *acts and resolve *actual issues(3) .llow a"ency to apply e;pertise and e;ercise discretion(') Respect a"ency autonoy(&) Dnhance e**iciency(6) eter parties *ro sandba""in" a"ency

/n addition court held that the punishent o* iprisonent has harsh and the si; reasons aren5tiportant since this is a atter o* statutory classi*ication not involvin" a"ency discretion$e$ CcAee# c?ee was a 3ua*er. 2ame thing a cJart refuses to appeal. :e gets his inductionnotice and the marshall%s hall him off in.

(1) CcAee did ,8 e;haust all reedies and si; reasons are iportant here$ ."ency5s"atherin" o* *acts 4 analysis and e;pertise are necessary$

*$ arby v$ isneros(1) .2. § 70' = on"ress wrote to narrow scope o* e;haustion doctrine so that trupscourt 4 a"ency coon law reasonin"() Final and ripe actions are reviewable unless st&tute or ru+e requires resort to intra-a"ency review (§§ 70 70')

i$ .pplies only to intra-a"ency reviewii$ /t is the 2ower o* the a"ency to deterine i* intra-a"ency review is andatoryor optional

(3) /* intra-a"ency review is not reEuired by or"anic statute or a"ency rule then 2 aysee! review w4o havin" e;hausted that adinistrative reedy

0


21/35

i$ ourts cannot ipose additional reEuireents$

6$ Reviewability# tandin"a$ /* 2 has standin" under *inality ripeness and e;haustion do they have standin" b$ ources o* tandin" octrine

(1) onstitutional# .rt /// and .rt // # /n part predicates upon case and controversy+reEuireent in .rt$ /// in the constitution$ :e"innin" in 1GG the court has added theta!e care+ clause o* article //() tatutory# loo!s to the provisions o* the statute under which challen"es are ade.2. and a"ency statutes(3) 2rudential# Jud"e ade eleents o* standin"$ 8he court reco"ni>es that on"ress cantrup these considerations$(') ,ther# onsiders other unidenti*ied *actors# i* it doesn5t want to consider a Euestion or have lower courts do it it uses standin" to "et rid o* the issues$

c$ 9aw 2rior to .ssociation o* ata 2rocessors ( lines o* cases)(1) .le;ander prunt O on# 0## was supposed to set reasonable and non)

discriminatory rates. The pre)existing rate for 2prunt was less than for his competitorsbecause it was closer to the doc*s. 0## has a hearing with ++ present and ++ agrees to

e3ualize the rates between 2prunt and his competitors. ?# ourt says you do not havestandin" because the / did not deprive you o* your le"al ri"hts$ Forced courts to a!ecursory evaluations at the be"innin" o* cases$() anders :rothers# "## issues the license to the competitor and 2anders wants to persuade court that the action was unlawful.?# anders has standin"$ 2rivate .tty Aeneral theory o* standin" = on"ress "ives atty"eneral to en*orce statutes but instead deputi>es+ this power throu"h statute so privateliti"ants can en*orce it

d$ Codern 9aw o* tandin"a$ :rea!down o* Codern 8est# 8o prove standin" plainti** ust assert#

1$ /n%ury su**ered (econoic or otherwise)$ caused by the challen"ed action3$ and redressable in court'$ 2lainti** ust assert that the interest sou"ht to be protected is ar"uably within the >one o*interest to be re"ulated or protected under the statute$

b$ .ssoc$ ata 2rocessors v$ ap# Data Processors want to interpret statute to say ban*s can%tengage in other commercial activity li*e computer services. ?# ew 8est#(1) id the party su**er an in%ury in *act econoic or otherwise+ caused by the challen"edaction that could be redressed by the court

1$ /n .2 the in%ury in *act is that optroller has allowed ban!s to o**er to .25scustoers coputin" services that soe ban! will do and this could be redressed by anorder *ro the coptroller sayin" it was unlaw*ul$$ ierra lub# .n interest in the sub%ect is not enou"h :L8 a huan bein" can suffer anaesthetic or environmental inFury and that is enou"h$

(a) Dven thou"h eber opposed isneyland bein" built in a recreation area nonehad su**ered a personal in%ury *ro it and plead it speci*ically$

3$ /n%uries in *act ust be particulari>ed concrete or individuali>ed ,8 "eneralabstract and shared by the any$

1


22/35

(a) chlessin"er# #onstitution has a provision that says no person may hold anoffice in more than one branch. +eservists argue that #ongressional reservists

cannot draw pay from the reserves - the legislative branch. ?# 8he said thiswas too "enerali>ed and abstract because there is no particulari>ed har *roon"ressional reservists$

(b) L v$ Richardson# @2 gov%t must provide a statement of accounts. 0ndividualtaxpayers and voters want to *now how much money the #0! is spending forvarious purposes. ?# up$ t$ says this is abstract and "enerali>ed and shared bythe anyNuses to deny standin" and avoid constitutional issue$

'$ FD v$ .!ins# "A# has a P!# category re3uiring organizations to file a lot about the sources of your money and the *inds of activities that you engage in. !rab)!merican

voters want to challenge the decision of the "A# is that !0P!# is not a P!#. ?# . a%ority o* the %ustices in FD say yes this is an in*orational in%ury and votersonly hared by the loss o* this in*oration but on"ress said that all citi>ens and voterssaid they were entitled to in*oration about political coittees$ 8hen FD in%ured thesevoters and unli!e L v$ Richardson this was a statutory ri"ht con*erred on all voters$ .

statute con*errin" a ri"ht is su**icient chan"e the outcoe o* an in%ury in *act test$ o i*on"ress "rants soeone a "rant that is deprived by an a"ency then is a %udicialco"ni>able in%ury in *act$

(a) ?aven5s Realty# on"ress said you have ri"ht to obtain truth*ul in*orationabout the availability o* housin"$ /* on"ress created a statutory ri"ht and youhave su**ered an in%ury then you "et standin"$

() /s the interest sou"ht to be protected arguably within the >one o* interests+ to be re"ulated or protected by the statute (§ 70)

1$ Cust loo! at the statute under which action is challen"ed to deterine what ri"hts areintended to be protected$$ Wone o* /nterest 8est

(a) .2# on"ress probably intended to protect ban!s copetitors$i$ tatute allowed suit by any a""rieved person+ creatin" broad X classii$ 8est is intentionally undeandin" because o* %udicial review presuptioniii$ 8rend is toward enlar"in" the protected class o* people

(b) ational redit Lnion# 9an* challenges a decision of the agency thatregulates credit union. You can only have a credit union if there is a common

bond between members of union all employees of a firm&carpenters$, but agencydecides that this is too strict and interpretation.

i$ /* a win on the erits would *urther your interests you ust havestandin"$ii$ o need to prove speci*ic intent to include 25s class i* statute doesactually bene*it 2N!eyword is arguably.

b$ .ssociational tandin"# .n association has standin" i*#1$ .ny eber has standin"$ .n interest in the sub%ect ust "erane to the purpose o* the association3$ Relie* that you reEuest does not reEuire the participation o* individuals (can5t see!

daa"es on behal* o* individual ebersNaction bein" invalid4declaration is a *or o*relie* that doesn5t reEuire individual participation)


23/35

c$ ausationCust show you would be in%ured as a result o* the a"ency action(1) .llen v$ @ri"ht# ?roup of 9lac* parents wish to get Fudicial review of the way 0+2 isenforcing a provision of the tax law to any racially discriminatory school. ?# o direct proo* o* the e**ect o* 8?/ law$ 8hey say our children have been in%ured bynot bein" aditted to the white acadeies but no one tried to "et into these acadeies$

8hird we have been deprived o* a *ree public education (%udicially co"ni>able in%ury butnot caused by /R5s decision to con*er ta; bene*its on any white acadey)$ 8his is anipossible causation eleent to prove$

d$ Dnvironental (.ssociational) tandards (in%uries)(1) ierra lub# Dnvironental /n%uries ount *or standin" purposes() ational @ildli*e Federation (1GG0)# "irst big change since 'KL6 < "ederal gov%t started and #lassification Program < limits scope of action. 2tatute allows review of

final agency !ction, but N= statute authorizes review of a Program. N>" challengesone particular re)classification < tries to prove member standing. ?#

(a) ."ency pro"ra is not an a"ency action = so need to challen"e speci*ica"ency action$ o standin" here b4c challen"in" pro"ra$

(b) Aeo"raphic 2ro;iity ReEuireent# /ediately ad%acent land is su**icient*or standin"(3) e*ender5s o* @ildli*e (1GG) '--3# 2uit brought under a provision of the A2!authorizing any person to challenge violations of the act. These were actions of @2!0D

which decided to give foreign aid to Agypt which would ta*e part of the critical habitat of

crocodile and another to 2ri an*a that would ta*e the critical habitat of asian tiger. ?#ourt says no in%ury in *act b4c

(a) ReEuires 8eporal 2ro;iityi$ eed soethin" ore *ir that / intend at soetie+ to "o to ri

9an!a$ an5t be va"ue about *uture plans$ii$ ould overcoe this with re*undable plane tic!ets$

(b) ourt re%ects#i$ Dcosyste e;us theoryNinterconnected nature o* the "lobal eco-systeii$ .nial e;usNwant to observe .sian ti"ers=can5t do it i* they are deadiii$ ocational e;usN/* you are a biolo"ist who speciali>es in the .sian ti"er then you are out o* business i* they die$

(c) calia "ets hold o* the opinion and now , one really !now what law isT$opare w4.t!ins where shared by all not ean precludedT

i$ /ntroduces ar"uent based on 8a!e are+ clause in constitution (nolon"er "ood)

1$ o one really !nows what clause eans# in%uries to public onlyredressed by 2res$ 4 D;ec = so con"ress can5t "ive to citi>ens

ii$ /ntroduces new redressibility rules (no lon"er "ood)1$ calia# even i* L pulled *undin" i"ht still do pro%ect$ 8oo speculative not !nownT

iii$ ot "el w4 earlier decisions that usually "ive broad perissive readin"so* in%ury in *act tests and de*er to con"ress

(') teel o (1GG&)# #itizen suit brought under the #lean >ater !ct by admittingdisgusting stuff into a water body. The citizens say that we were inFured. >hat we want is

the remedies including inFunction. They say they will settle for civil penalties. ?#

3


24/35

(a) up t$ says we ac!nowled"e that there is an in%ury in *act$ . *ew illion buc!s to a civil penalty cannot redress the in%ury b4c it "oes to the "overnent$ivil penalties *or wholly past+ violation cannot redress an in%ury$

(&) FD v$ .!ins(1GGQ)# 0nformation inFury case!0P!#$# .n in%ury shared by the anycounts i* on"ress says so$ 8his Euali*ies *or standin" purposes$ 8his does not *it with the

ta!e care clauseN:reyer prevails$(6)9aidlaw# !dmits 7 times the legally permissible amount of mercury in a river. !nenvironmental organizations sues based on the affidavit of a member who says 0 used to

fish, swim, and boat down here50 had to stop because it was no longer safe to fish, swimand boat. 0 see* inFunction relief and civil penalties. ?# up$ t$ says he has standin"$

(a) 9iits teel o$ to wholly past+ actions = not when on"oin" or chance o*reoccurrence (li!e here)$(b) e*ines in%ury as reasonable *ear+ o* har# %ust establish reasonable *ear o!even i* un%usti*ied *ear P ,n "oin" violation (in%ury o* reasonably *ear) can be redressed by civil penalties to deter

(d) urrently# so lon" as 2 has "eo"raphic and teporal pro;iity standin" will probably be *oundTunless court not want to eet erits and con"ress hasn5tade clear it wants court involved

VII. Congression&+ %iits on Agenc$ Discretion

1$ /ntroductionNon-ele"ation octrine (tatutory a"ueness O its .ntidotes)a$ on"ress with the e;ception o* the constitution is the only body to create the discretionin a"ency decision$ b$ on-ele"ation octrine# .ll le"islative power is vested in on"ress by .rt$ /$

i$ upree ourt reasons that on"ress can5t dele"ate the le"islative power(policy and rulea!in" power)Nthis is the law *or 00 years$ii$ Rationale# on"ress is the ost politically accountable institution$iii$ 8oday on"ress is clearly dele"atin" uch ore than the details$ t stillupholds the validity o* the statute but chan"es the statute to satis*y the non-dele"ation doctrine$iv$ on"ress ust include an intelli"ible principle+ in statute that channels thedecision a!in" power providin" a"ency w4rulea!in" criterion

(a) *reEuently there are the only standard is %ust and reasonable and publicconvenience and necessity$(b) loo!s li!e there is no liits placed on on"ress by non-dele"ationdoctrine

c$ 2anaa Re*inin" and checter 2oultry (1G3&)# ,nly cases where dele"ation wasconsidered e;cessive and unconstitutional$ ?asn5t been *ollowed but hasn5t beenoverruled$

i$ ,ne e;planation is the tiin"Nthis is the hei"ht o* upree ourt hostility to2resident and on"ress and ew eal$ii$ ational /ndustrial Recovery .ctNapplied to the whole econoy andauthori>ed the creation o* a coittee (consistin" o* three lar"est producers) todeterine the rules applicable to every ar!et in the L$

'


25/35

(1) :reyer says this was eant to !eep *ederal "ov5t to dele"ate a"ency*unctions to private entities$

d$ .al"aated Ceat utters# 2tatutes says we authorize President to control all wagesand prices in @2 economy. @nion sues because they can%t implement a wage increase

without going to uncle 2am. ?# t upholds this standardless dele"ation b4c#

i$ Relates to *orei"n relations and on"ress can always "ive powers in that areaii$ ould apply @@// standards4price controls (stupidNnot a war)iii$ /plicit intelli"ible principle+ o* *air and eEuitable standard iposed (this isa lie)iv$ 2rocedural a*e"uards (§ &&& has inial sa*e"uards O no substantivestandards)v$ Judicial Review (no substantial standardsNuseless4can5t review)vi$ tandards that the a"ency adopts by rule or precedent can be adopted by court

(a) :L8 court can ,8 copel an a"ency to use rulea!in" instead o* adhoc ad%udication(b) ."ency not have to create standardsT

vii$ 9iited uration (e;pires in yrs)Ncan5t e;tend with a**irative action o* on"ress O president (the only "ood idea the court had)(a) D;actly what happened thou"hH on"ress e;tended teporarily andaddin" ore restrictions each tieT!ey = only le"itiate one

e$ .$ 8ruc!in"# #lean !ir !ct did not allow cost consideration.i$ .ct reEuired D2. to set abient air levels reEuisite to the public health+ii$ on"ress provided intelli"ible principle+ that e;cluded cost considerationsiii$ ."ency can5t cure iproper dele"ation with sel*-iposed standards bute;plicit con"ressional statues e**ectively avoid non-dele"ation issuesiv$ .$ 8ruc!in" si"naled the end o* the non-dele"ation doctrine

*$ .lternative olution# un-Ray rive in airy(state case)# ?uy goes before the li3uor

control board and cross)examines decision)ma*ers can%t happen at federal level$. Aachof the decision ma*ers had a different understanding of the law. Aach decision)ma*er

considered one of the three factorsG a food store, opposition by people in the community,

and number of competing stores.i$ ?# ourt *orces the a"ency to create standards (an5t happen in Federal systeunder hanery (a"encies have discretion to use ad%udication instead rulea!in")(:ell .erospace))

(a) o body can challen"e i* not !now the standards decisions based on(b) ourt can5t review w4o standardsP :oard can5t a!e consistent decisions(d) 9e"islature not !now i* board carryin" out andate b4c no standards

"$ Coveent to reinvi"orate non-dele"ation doctrine b4c outra"ed by .CT Codern2roponents = 9owi Dly Friedan :ur"er RehnEuist (in :en>ene concurrence T)h$ 8o what e;tent does hevron respond to these concerns

(1) hevron and *ive unanious court decisions upholdin" broad dele"ations o* power$a$ hevron responds to proponents o* non-dele"ationNwe are the only politically

non-accountable institution$ ."encies are accountable to the president and the

&


26/35

people can throw hi out$ :e*ore hevron on"ress could pass a statute withva"ue or abi"uous lan"ua"e

(1) hevron "ives on"ress an incentive to have less abi"uous lan"ua"eand they are lon"er and ore detailed$

() . whole bunch o* decisions that su""est that the non-dele"ation doctrine

is dead$$ 9e"islative etoesa$ ?ave been around in statutes *or '0 to &0 years (00 statutes will these provisions)

(1) ?,R had voted *or a bill addin" le"islative vetoes to the .2. be*ore this decision$() ,ne o* the principle %usti*ications *or the le"islative veto

i$ @e want to be responsible about thisNso we are responsible *or le"islativedecisions a*ter the *act$

b$ / v$ handra where one :ouse of #ongress can veto agency actions t holds that twohouse and one house veto are unconstitutional b4c on"ress can only bind people thou"h bicaeralis and presentent$

i$ .ctual e**ects# lin!a"e with broad standard less dele"ation o* power$

ii$ eto too power*ul w4 assive e**ects b4c con*erred power to individual ebers o* con"ress = any strate"ically placed eber o* con"ress could control a"ency decision byveto threat$

c$ on"ressional Review .ct o* 1GG6# on"ress passes the on"ressional Review .ct$ /tcoplies with bicaeralis and presentent$ Joint isapproval U 2resident vetoNnoconstitutional probles with that$ /t was used once$

3$ ele"ation o* .d%udicatory .uthoritya$ an an a"ency ad%udicate a dispute involvin" individual ri"hts

(1) .rt$ /// = court resolves disputes$() 7th .en ri"ht to %ury trial$(3) ourt starts drawin" distinction between public and private ri"hts

i$ ."encies can resolve D@ public ri"hts but not privateii$ oon law private ri"hts only resolved by the court

b$ rowell v$ :enson# >henever an employee was inFured on the Fob then there is a wor*er%scompensation fund created with state agency adFudicating. ?# 2eople said this has to be aviolation o* .rt$ /// to ad%udicate these coon law disputes in an a"ency$ Fine *or on"ress toassi"n the tas! o* ad%udicatin" public ri"hts disputes$

(1) up t says a"encies can only hear public law disputes and courts ust hear private() /* there is %udicial review a"encies can hear private law disputes because courts "etthe *inal say O a"encies are actin" as special asters+ to propose *indin"$

c$ orthern 2ipeline# 9an*ruptcy statute modified to say that courts in ban*ruptcy proceedingsmust figure out what rights are out there - #ongress determined that this should be done by !rt. 0 courts created by the legislature staffed by new class of ban*ruptcy Fudges who serve for a term

of years. ?# upree ourt says you are assi"nin" a %udicial *unction to a non-.rt$ /// court$(1)Four-%ustice plurality says it is unconstitutional because o* its two-step decision-a!in" process$ an resolve with consent o* the parties$ ,nly an .rt$ /// court canresolve a private ri"ht dispute$

6


27/35

d$ 8hoas v$ Lnion arbide# #ongress enacts a statute saying that any applicant for approval of a pesticide must submit studies that they don%t have horrible adverse effects - allows first

companies to do the studies to be compensated based on agency arbitration. (1) on"ress can assi"n the deterination o* what is %ust copensation to bindin"arbitration even thou"h there is , %udicial review$

i$ t deterines this is not a %udicial *unction = no role *or the %udiciarye$ F8 v$ choer# #ongress creates #"T# to deal with consumer fraud disputes but there arealso associated counterclaims. ?# t says F8 can ad%udicate (related) coon lawcounterclais$

(1) Ca%ority = F8 can ad%udicate private ri"hts = b4ca$ arrow %urisdiction b$ 9ar"e 2ra"atic advanta"esc$ 2etitioner waived his ri"ht to an .rt$ /// court

() D**ective overrules orthern 2ipeline(3) Bey Euestion# does a"ency ad%udication supplant the essential or core *unctions o* .rt$ /// ad%udication

(') issent# Carshall and :rennan say i* this happens with several sall classes o* casesthen what happens when we there are several sall classes o* cases*$ ordber"# 7th .endent %ury ri"ht prevails when a private le"al ri"ht is attached to aneEuitable public ri"ht sub%ect to a"ency ad%udication$

(1) 9aw# on"ress can consistent with .rt$ /// assi"n sall classes o* private law cases toa"encies (i* they have "ood enou"h reasons) but i* there are *actual disputes they ust"o to %uries$

i$ calia in a *ootnote says the answer is *or an a"ency to ipanel a %ury everytie there is a *actual dispute$

'$ tatutory 2recision and its onseEuencesa$ Aeneral

(1) /pleentin" ."ency ay not e;plicitly e;ept any case that e;hibits the speci*iedcriteria *ro the prescribed conseEuences even i* those conseEuences see whollyunreasonable in that case$() ."ency cannot w4o le"islative chan"e respond to new !nowled"e or chan"ed political circustances to odi*y the policies ebodied in ill-*ittin" or outdated statutoryinstruction$

b$ /rre*utable presuptions(1) ,. v$ Curray# "ood stamp lady loses stamps b&c husband declares her *ids asdependents even though he doesn%t live with them. #ongress is trying to *eep rich college students from getting this.

i$ Factual surro"ate ust be necessarily or universally true+ = 100M correlation between what you5re tryin" to easure and the rule$

(a) @ould virtually eliinate .99 statutesTall soe *aulty and not 100Mii$ 8his no lon"er "ood lawiii$ oncur = on"ress should have told a"ency to deterine w4 discretion

(a) tupid b4c a"ency would have to have hearin"s *or everythin"Tta!e*orever no one "et aid

iv$ tatutes dele"atin" power to a"encies can be *aulty in one o* two ways#(a) 8oo broad

7


28/35

(b) 8oo speci*icc$ elaney lause (1G&Q)# no additive shall be deeed sa*e i* it is *ound to induce cancer whenin"ested by an or anial+

(1) o detectable residue in any *ood stu**s+ is allowed$() /n 1G&Q there were *our !nown carcino"ens but today &0 percent o* an-ade

substances and naturally concurrin" substances cause cancer$(a) /* F. en*orced the clause as written it would have a%or probles$(3) accharin :an Coratoriu# "D! banned saccharin after show it caused cancer inrats, but such minimal ris*, and ridiculous reports. #ongress gets really mad.

i$ on"ress places a oratoriu on saccharin ban$ii$ F. can deterine what easureents are there *or residue$ o they onlyallow people to use 1G&Q technolo"y to avoid detectin" the sall aounts withodern technolo"y$

(') Food Suality 2rotection .ct o* 1GG6# "inally allow high tech measurements - Naderargues AP! must ban all pesticides. D#&6nd #ircuit say statute gives commissioner no

discretion one presented with evidence of carcinogenic effect.

i$ D2. says i* we ban pesticides price o* *ruits and ve"etables "oes way up(a) 2eople stop buyin" and will eat *ast bad *ood and public health will pluet which is worse then w4 soe pesticide residues$(b)on"ress e;cluded the pesticide and the rest o* the clause still standsP arol :rownin" (D2. chie* under linton) had it aended in such anun"odly coplicated way =that it can never be used

(&) ,. v$ Curray O elaney lauseNshow us that speci*ic on"ressional dele"ationsare probleatic$ 8his is why courts are ore acceptin" o* broad dele"ation o* power toa"encies$

i$ on-dele"ation and irrebutable presuption doctrines are dead$&$ 2ervasive 8echniEues o* 9e"islative ontrola $ 8o control a"encies on"ress uses statutes#

(1) Aeneral tatutesi$ .pply to all a"enciesii$ /ndirect but hu"e e**ect

() ."ency or"anic actsi$ ?ave direct on individual a"encies

(a) can put very speci*ic lan"ua"e in the statute to control a"ency actions(3) .2.

i$ otice 2rovision = allow on"ress to "et involved in rulea!in" process = (a) Aives on"ress way to have a little ore control(b) otice alerts on"ress to a"ency actions

(') F,/.i$ Aives on"ress way to !now everythin" that5s "oin" on within a"ency

(a) ."ency ust subit all to public disclosure(b) reates transparency about how a"encies operate

(&) D2.i$ Dnvironental ipact stateent reEuired b4' a"ency ta!es any a%or action+that ay si"ni*icantly a**ect the environent

Q


29/35

(a)Areatly shapes a"ency decisions# /ntended to increase awareness o* theenvironental conseEuences o* "ovt5 action

(6) ata Suality .cti$ /* you thin! an a"ency is relyin" on data that you believe to be low Euality thenyou can petition the a"ency not to rely on that low Euality data$

(a)


30/35

i$ ,**icerNnoinated by president and con*ired by enateii$ /n*erior ,**icerNchosen by the president court o* law or head o* adepartent$

(b) istin"uish *ro ivil ri"hts oission that is constitutionally valid b4cthey conduct investi"ation and do reports (only powers on"ress has)

i$ ."ency with power to issue le"islative rules (sae bindin" e**ect asstatutes) ust be run by o**icers or in*erior o**icers$(a) FD can but R can5t

ii$ ."ency w4power to ad%udicate disputes w4 *oral bindin" e**ect(a) an "o to courts on behal* o* the *eds to en*orce its statute = purely e;ecutive and can only be dele"ated by president notcon"ress

() pecial 8a; ourts (Freyta" v$ /R)(a) hie* %ud"e appoints special %ud"es to ad%udicateT$is it a court or an a"ency = either way o! i* departent or court o* law b4c head o* departent or court o*law ay appoint in*erior o**icer$

i$ ourt not clari*y how to distin"uish btw o**icer4in*erior o**icer () :owsher v$ ynar# #ongress couldn%t eliminate deficits and they assigned budget)cutting functions to #omptroller ?eneral. The ?raham)+udman):ollings act says the president has to cut spending to meet the proscribed deficit ceiling in accordance with a statutorily

proscribed formula. =9 and #9= will give proposed to #omptroller ?eneral and he

will be the final arbiter and tells the president what cuts to ma*e. (a) Ca%ority# ourt concludes the coptroller "eneral cannot be "iven this because itis an inherently e;ecutive *unction (is spendin" an e;ecutive *unctionN%ud"entsabout spendin") and on"ress can5t dele"ate that to theselves or their a"ent (A)$

i$ optroller "eneral is an a"ent o* on"ress b4c he can be *ired by on"ress *or cause$

(b) oncur# 8his is handra all over a"ain$ on"ress ust "o throu"h bicaeralisand presentent$ Aivin" power to A circuvents bicaeralis$P issent# @hiteNcoptroller "eneral e;ercises no discretion and has no decision-a!in" power$ .ppointed by the president *or a 1&-year-ter ot reovable by the president *or any reason @hite says the coptroller "eneral isn5t an a"ent o* anybody$

ii$ on"ress5 2ower to Re"ulate the 2resident5s Relationship w4 .dinistrators(1) @hat a!es an a"ency independent

(a) D;istence o* a *or cause+ liitation on the 2resident5s power to reove the a"ency5sheads is the only distinction between independent and e;ecutive a"encies(b) /ndependent a"ency run by not 1 head but colle"ial body o* coissioners

i$ F8 independent b4c & coissioners servin" set ters and only can bereoved Z*or cause5ii$ Rare

() Cyers v$ L# #ongress enacted statute that President can%t remove w&o consent of senate <must remove same way appoint. Astate of fired postmaster sues for bac* wages.

(a) 2resident *ired postaster = statute is unconstitutional and reoval ,B i$ on"ress can5t inter*ere or restrict in any anner the 2resident5s power toreove o**icers at will

30


31/35

(b) Codern eanin"# on"ress can ta!e action that has *oral bindin" e**ect only by*ollowin" procedures set *orth in constitution *or enactent o* le"islation =bicaeralisand presentent = and can5t circuvent this by "ivin" power to sel* = can5t "ive sel* rolein reovin" e;ecutive branch o**icers (veto power *or sel*) or a!in" each e;ecutive branch o**icer partially an a"ent o* on"ress$

i$ 2urely e;ecutive o**icers serve at the pleasure o* the president$(3) ?uphrey5s D;ecutor# +oosevelt sees a guy at the "T# who is predecessor appointed andwants him to resign and he won%t so he fires him. Astate brings the bac* pay case.

(a) on"ress can in soe circustances liit the president5s power to reove ane;ecutive branch o**icer (ieN*or "ood cause in F8 case) *ro an independent a"ency$

i$ on"ress cannot liit presidential reoval power in purely e;ecutive a"encies$(b) istin"uished Cyer b4c here not %ust purely an e;ecutive a"ency but independent(Euasi-%udicial and Euasi-le"islative)

i$ Suasi-JudicialNcourt li!e *unctionNon"ress wants a neutral decision-a!erso liits the power o* the president to reoveii$ Suasi-9e"islativeNpolicy *unctions and discretionNF8 advises on"ress on

policy so we should be able to assert soe control$1) o lon"er true b4c on"ressen4woen have lar"e sta**s$(') L v$ @einer = @ar ries tribunal w4 o**icer by statute = statute silent to the reoval terserved$ 8ruan can reove the %ud"es on the court w4o cause$

(a) ,**icer to resolve clais in accordance w4 the lawi$ .d%udicatory nature o* tas!# .political independent %ud"ent

1) ot a political position so ,8 purely e;ecutive(b) /ndependent a"ency and statute read to iply that reoval ay be liited by *or"ood cause+

i$ @ant to !eep out o* plenary presidential control = insulate a"ency head(c) ot "ood law anyore to insulate = but rest o! althou"h court i"ht read statutedi**erent today (it was all in*erred b4c statute silent)

(&) ot ecided# /* the president said he was reovin" soeone *or "ood cause would it be %usticiable 8hin! ost courts would duc! the Euestion$

i$ /* the president said / a reovin" this o**icial because he de*ied e on policy 8henthe court i"ht say this is a su**icient cause even where on"ress has liited to reoval power *or cause$ 8he F8 is now not a!in" any policy decisions$

(6) Corrison v$ ,lson# 0ndependent #ouncil 2tatute found constitutional. (a) /ndependent counsel statute = i* .A authori>es then 3-%ud"e court appoints

i$ Cust *ollow .A policies and reoved by .A *or cause1$ause+ never de*ined by court# Re*usin" to coply w4 2resident policydecisions

ii$ tatute insulates / *ro 2resident5s control(b) tatute creatin" is ,B = head o* court ay appoint#

i$ / is an in*erior o**icer 1$ 9iited cope (only investi"ates one alle"ation)$ 9iited 8er (till tas! done)3$ o policy a!in" role'$ Cust coply w4 ,J policies&$ /n*erior to .A

31


32/35

ii$ /nsulatin" *ro 2resident does ,8 inter*ere w4 2resident5s 2ower or ontrolover the e;ecutive branch = %usti*iable to insulate

1$ 2lenary control o* independent counsel is not central to 2resident5sability to control e;ecutive branch$ o attept at con"ressional a""randi>eent

a$ on"ress not tryin" to "ive sel* power 3$ 2resident retains soe control over independent counsela$ / at will o* .A who is at will o* 2resident

P issent = calia# 2rosecution has always and everywhere+ been an e;ecutive *unction:ullshit thou"h b4c prosecutions always handled di**erently even by *oundersTad hoc private atty$ ourt eliinated the prior *u>>y liit on con"ressional power withoutannouncin" a new liit$ @ill lead to on"ressional a""randi>eent and unliitedinvesti"ations$d$ ?ar.(a) Jac!son oncur# 8he 2resident is *ree to act when authori>ed directly by on"ress(cate"ory /)$ 2resident ay act where on"ress has been silent (cate"ory //) loo!in" at practicality and necessity$ ate"ory /// is where con"ress has spo!en and has precludedthe president *ro bein" involvedNpower is at the lower only upheld where on"resshad no ri"ht not to tell the president to do soethin"$ ?e says we are in cate"ory // O president can5t act here$

C67e50+icit gr&nt8 C7si+ent8 C-7congress s&$s no

U -449!&c3 es M No

Vincent es es No

Ot"ers es es es

+&c3 No No No

(b) ate"ory //# @hen 2resident acts in a le"islative vacuu his power is uncertain (butstill ay by valid)

i$ /n re ea"le = 2resident epowers L Carshall to protect a Justice and theCarshall !illed an attac!er 2res actin" purely in e;ecutive power ii$ eto power pardon power

d$ 2residential ontrol o* the :ureaucracy(1) Aeneral

(a) .ll ."encies have political liits as well as le"al liits to what they can do$ 2eeAraphical epiction o* ."ency .ction /n*luences

3


33/35

(b) . certain aount o* presidential control over a"encies is necessary to a!e the court5sholdin" in chevron true

i$ 8hat courts are to "ive de*erence to a"ency decisions b4c they are accountable tothe 2resident

P 8wo types o* ontrol by 2residenti$ .d hoc# D;ecutive branch hi"her-ups in*orally direct a"ency heads

a$ 2hone calls in*oral eetin"s etc$$$ subtle conversationsT

ii$ ysteatic# 8hrou"h D;ecutive ,rders ,/R. ,C:a$ Cuch ore coon

iii$ 2resident and on"ress thou"h le"ally and practically constrained e;ercisee;tensive control over a"encies

() D;ecutive ,rder 1G1(a) Rea"an# Cost control ever e;erted over a"encies by 2resident(b) :ush let standP linton issued 1Q66

i$ o real chan"es = ore wordsii$ .dded tielines *or ,C: (,**ice o* Cana"eent and :ud"et) actions

a$ 8oo uch a"ency delay w4 proposed rules

iii$ /ncreased transparency o* a"ency processiv$ D;panded scope to soeties apply to independent a"encies

(d) :ush // issued 1Q66(a)i$ eleted all re*erence to ice 2resident

a$ :e*ore 2 head o* re"ulatory oversi"ht tas! *orce above the ,C:1$ 2 resolved disputes w4 ,C: and a"encies$ow head o* ,C: head o* all

(3) cope o* D, 1G 4 1Q66 4 1Q66(a)(a) ,nly to e;ecutive branch a"encies

i$ /ndependent answer to on"ress and on"ress !eeps that control (despite2resident ad hoc control stillT)

(b),nly to a%or rules (soon ay be everythin" over 100 illion ipact on econoy)i$ ot to ad%udication b4c .9J neutralii$ Rules that will have si"ni*icant e**ect in L = otherwise way too any (ore100 illion dollars)iii$ ot apply to interpretive rules or policy stateents = no bindin" e**ect

PReEuireents under D,i$ ."ency ust use cost-bene*it analysis as the basis *or decidin" which actions tota!e (ust be ost cost-e**ective)

33

.rbitrary

2residential/n*luence

on"ressional/n*luence

Judicially allowed spectru o* a"ency action

[[[ oination8erination

[[[ tatuteson*iration

apricious


34/35

(a) 2resident can5t always en*orce this1$ ot where on"ressional statute says a"ency ust rely onsoethin" else

a)elaney clause etc$D, says to the e;tent consistent w4 the law+

a)8hus statutes can override it3$hevron supports the reEuireent o* cost-bene*it analysisa)tren"thened power o* 2resident vis a vis on"ress andourt as well as vis a vis a"encies

ii$ ."ency ust consult w4 ,C: be*ore issuin" a a%or rule(a) end over cost-bene*it analysis proposed rule and stateent o* basisand purpose

1$,C: can reEuire (once a"ency consults w4 it)a) e*erral o* issuance o* rule (,C:5s stron"est power) b) 9iitations on that power# on"ress adds tielines tostatutes

i) @here on"ressional and D;ecutive tielinescon*lict on"ressional ones trup b4c le"islative process is *or on"ress and D, says to e;tentconsistent w4 law+ii)on"ress uses tielines4 statutory "uidelines to

control presidential control o* a"encies (lots o* partisan politics)

c) onsultation w4 other a"enciesd) onsideration o* additional data (8his delays rulea!in")

i)?ave to issue suppleental issuance o* notice *orcoents on the new data

(') D;ecutive ,rder 1'GQ(a) :e*ore issued ,C: would review a%or rules a*ter rulea!in" was coplete but be*ore actual issuance o* rules

i$8oo late in the "ae1$ 9ess then 1M o* rules chan"ed at this point$ :y the tie it "ets to ,/R.4,C: is usually pretty solid

(b) D, 1'GQ#ReEuires every a"ency to coe out w4 annual re"ulatory a"endadescribin" every a%or initiative *or the year

i$ /ncludes ore the %ust rules# Focuses on the pre-rulea!in" stu** 1$."encies need lots o* in*oration be*ore can even issue a notice o* proposed rulea!in"

ii$ 8ells people what it is plannin" to do and it includes its calendar o* when it isli!ely to issue proposed or *inal rule

P8his D, is very burdensoe on certain a"encies (D2. b4c very active)(d)D**ects

i$ ra*ters thou"ht it would help ,/R. *ocus on iportant issues be*ore it was toolate

1$ /n actuality it caused way too uch wor! too early in process b4' any!in!s are wor!ed out

3'


35/35

ii$ ?as had soe unintended bene*icial e**ects1$ Cebers o* the public who are a**ected by a"ency action (lawyers public interest "roups etc$) *ind out in*o very use*ul

a$ ?elps the !now what they need to *ocus on when lobbyin"etc$

$ 2eople who run a"encies now !now what5s "oin" on in the a"encya$ 8hey usually only serve *or an avera"e o* years 7 onths b$ 9ower level *ol!s are less interested in the o**icer5s a"enda thanin their own a"endac$ 8his D, prevents lower level *ol!s *ro !eepin" o**icers in thedar!

Date post:	07-Aug-2018
Category:	Documents
Upload:	championegy325
View:	217 times
Download:	0 times

Administrative Law - Pierce - Fall 2005_4

Documents