Ars Outline

8/2/2019 Ars Outline

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ARS OUTLINE

I. INTRODUCTION: GOVERNMENT AS REGULATOR AND REGULATEDA.Harris v. State - What does motor vehicle mean?

1. Ordinary Meaninga) In light of other statutesb) Legislatures purpose?c) Rule of thumb to solve ambiguitiesd) What did the legislature say?

CANONS OF INTERPRETATION - TEXTUAL

Plain meaning

When writing statutes, the legislature intends to use ordinary English words in their ordinary

senses.Ejusdem generis ("of the same kinds, class, or nature")

When a list of two or more specific descriptors is followed by more general descriptors, the

otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of

the specific words that precede them. For example, where "cars, motor bikes, motor powered

vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore

vehicles cannot be interpreted as including airplanes).

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others")

Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a

statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or

"such as".

Noscitur a sociis ("a word is known by the company it keeps")

When a word is ambiguous, its meaning may be determined by reference to the rest of the

statute.

CANONS OF INTERPRETATION SUBSTANTIVE

Constitutional Avoidance

Rule of Lenity

B. Hornbeck v. Salazar- Big Oil and drilling moratorium1. Did Salazar put words in the experts mouths?2. No CBA analysis3. Concerns about agency capture


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C. Agencies1. Created by Congress

a) Have an organic statuteb) Derive lawmaking authority from Congressc) Regulate (bans, funding, enforcement, etc.)

II. LEGISLATION AND STATUTORY INTERPRETATIONA.Legislative Process: Basic Mechanics

1. INS v. Chadha INS allows Chadha to remain after his student visa expired.Congress attempted to overrule.

a) legislative veto concerns, can the legislative branch get two bites at theapple after delegating away authority?

b) Burger Majority: No, this violates Art. 1 7.1) Concerns about separation of powers2) Formalist must follow process set out in constitution3) Congress cannot review/override executive decision

c) Powell Concurrence: Not unconstitutional, but incorrect1) Congress is acting quasi-judicial2) Should have no say in application of law to an individual

d) White Dissent: Congress should be allowed to do this1) Functionalist congress can delegate power to agencies, it should

have a veto as a way to keep a check

2) Majority is ignoring the realities of the modern regulatory state2. Clinton v. City of New York Line Item Veto Act

1. Stevens Majority: LIV Act unconstitutional (violates Art. 1 7)a) Formalist Constitution does not allow president to enact, amend, or

repeal laws can only vote yes or no.

2. Scalia Dissent: Functionalist viewa) Equivalent of congress allowing the president to decline to spend

money on certain programs (Stevens responds that this changes the

actual words on the page)

3. Breyer Dissent: Functionalista) Circumstances have changedb) When the constitution was written there wasnt the omnibus

legislation we have today.

c) This makes it harder for the president to simply veto legislation


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B. Schools of Statutory Interpretation1. Intentionalism and Purposivism

a) Purposivismi) Ask: what was the evil or mischief congress sought to remedy?ii) Judge as a social historian, what makes sense in light of the laws

original purpose? Most faithful to thepurpose.

iii) Strengths: pragmatic. Solves problems on the ground. Moreconcerned with getting to a just result

iv) Weaknesses: Little bit unsettling in terms of uprooting somesettled conceptions of what the law means. Depends in some ways

on what any given judge takes the law to be or to mean. Can be

highly subjective and dependent on the circumstances of the case

b) Holy Trinityi) NY church brings in priest from England. Statute forbids

importation of laborers from outside the U.S.

ii) Brewer Majority: Barring action may be within the letter of thestatute, but outside the spirit.

iii) Act included exceptions for actors, artists, singers, lecturers, anddomestic servants.

iv) This is not the evil that congress sought to address (cheapmanual labor affecting the U.S. job market)

v) Takeaway: There is a main purpose behind a statute, whichshould be used to interpret the meaning of the statute in any given

case.

c) Intentionalismi) What would the enacting congress have done?ii) Scalia is viciously opposed to this.

d) Riggs v. Palmer murdered for inheritance.i) It doesnt matterwhatthe words of the statute are, there is no

way congress intended to incentivize murder in this way.

ii) Court overrides statutes andthe words in a will.2. Plain Meaning; Textualism: The New Purposivism

a) Textualismi) Language in statuteii) Dictionary definition for plain meaning


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iii) NO LEGISLATIVE HISTORY - intent does not matter, only thefinished product

b) Normative Justificationi) Theory Of Law Rule: Everyone should be able to read the law and

have an equal understandingc) Strengths: objective and transparent; it is the most democratic of

schools.

d) Weaknesses: language is often ambiguous. Textualism can be blind to itsown subjectivity. Can also seem cruelly detached from the consequences

of its opinions.

e) United States v. Marshall LSD does carrying medium count in weightfor mandatory sentencing?

i) statute talks about mixtures of LSDii) PCP distinguishes weight of pure drug v. drug as a mixtureiii) Easterbrook Majority: Yes it does. Delivery system needs to be

calculated in weight or drug is weightless. Since PCP is the only

one that makes a distinction, Congress did not intend LSD to be

decided the same way. (expresio unio)

iv) Cummings Dissent: textualist reading defies intent: mixture doesnot mean carrier medium

v) Posner Dissent: Absurd outcome. Carrier medium does not effectpotency dealers can sell the same amount of bad drug and get

different sentences. Violates purpose of the statute drug control.

f) Green v. Bock Laundryi) statute discusses prejudice to the defendantii) Green is the plaintiffiii) Stevens Majority: statute only applies to criminal casesiv) Scalia concurrence: least violence to the textv) Blackmun Dissent: Policy concerns, we should prevent everyone

from prejudice

g) WVU Hospitals v. Casey - Expert Fees (not in the statutedenied)h) General Dynamics age discrimination (only applies to older people,

Thomas dissents with Textualism)

3. Judicial Correction of Legislative Mistakea) The Abusrdity Doctrine excluding absurd results that appear to fall

within the scope of the text.


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b) U.S. v. Kirbyi) statute makes it a crime to disrupt the federal mail

ii) sheriff arrests mailman for murder and is arrested in turniii) court says this is clearly and absurd result no matter what the

statute reads The Golden Rulec) Scriveners Error- court will correct an error in the transcription of the

legislature

d) U.S. v. Locke Dissent: typos must be fixed and are the fault of the govt.

4. Ordinary Meaning or Special MeaningNix v. Hedden:

Facts: Tax collector trying to collect import taxes on tomatoes: tax on vegetables, butnot fruit Is a tomato a fruit or vegetable?

Courts analysis:o Dictionary: tomato could be a fruit or vegetable based on definitionso Common language: what we eat them with & how chefs use tomatoes

Tomatoes served as a salad or side dish, not dessert therefore vegetable,not fruit

BUT, now, tomatoes are used in dessert too should that change? Should commonsociological usage matter?

How do supreme court judges make observations about common life? Whos brief should carry more weight botanist or chefs? Overall question: what is the correct community of speakers?

To interpret statutes most begin with the common usage

Assume that Congress uses language the way most people do But, if technical language, understand that Congress may be speaking to experts with

terms of art

* Language doesnt mean things in the abstract it only means things to communities of

speakers *

Smith v. United States:

Statute: illegal to use or carry a firearmo Side note: Why didnt prosecutor argue he carried the gun? Prosecutor screwed

up mischarged & govt didnt want to let him go


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Q: is bartering a gun a violation of the ban on using a firearm during a drug crime?o Purpose: to prevent violence during drug crimes

When drug deals go wrong, if there are guns more likely to becomeviolent

Congress wanted to mitigate violence when drug deals went bad in thepresence of guns drugs + guns = bad

o OConnor: Dictionary definition of use : to convert to ones service, to employ =

everything

Fire a bullet (obviously), bludgeon, barter, etc Which dictionary? Websters? Blacks?

o Scalia: Ordinary use of use a firearm = to fire a bullet Looks to plain meaning of text most natural meaning given the context

Dont try to fit the statute to the possible, but esoteric meaning Texualism = semantic use use in context

o Side note: cannon against surplusage words should be read to give independentmeaning; are both use & carry doing the same work?

5. Dynamic Interpretation and Changed CircumstancesCommonwealth v. Wolansky:

MA Statute says that only voters can be jurors Woman voter = juror? No?

o Court seems to be bending over backwards to prevent women from being jurorsOnce statutes are passed tend not to be repealed

Unlike common law statutes are not dynamic dont change with the times So what do judges do?

o Does it fall to the court to update? Or should the court stay faithful to the statuteand leave it to the legislature to go back and change the law?

C.Legislative History1. Basic Mechanics:

Uses and abuses of legislative history: Post New Deal golden age: legislator

statements seen as dispositive Reagan revolution: Scalia and Easterbrook


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critique legislative history Justice Kennedy: balanced measured use of

legislative history (see Allapattah)

North Haven v. Bell Title IX.

School boards challenge an education regulation. Regulation purports to include employmentpractices under Title IX. School boards say Title IX only covers discrimination in access to

programs, so regulation is invalid because it exceeds statutory mandate.

Plaintiffs best arguments:o Textual argument: Statutory language talks about benefiting from or participating in

any educational program or activity. Employment is not explicitly mentioned.

Employees dont benefit from / participate in educational programs. It strains the

ordinary use of language to say that employees benefit from educational programs.

o Legislative history: No cmte report attached to this legislation bc it was an amendment to

legislation already on the floor.

Senator Bayh floor statement: reference to faculty employment comes priorto part of statement when Bayh invokes Title VII he references employment

under part of statement where hes seemingly talking about something other

than Title VII

Conversation bw Senator Bayh and Senator Pell: Pell asks about scope ofsections, and Bayh says it covers 3 basic types of discrimination, one being

employment w/in an institution but was that type of discrimination to be

covered by Title IX or Title VII?

Conference cmte: Deletes House provision that explicitly disclaimed thatemployment discrimination not included majority says language excluded

bc incompatible with what Senate hoped to achieve (coverage of

employment); dissent says House didnt say why it receded perhaps due to

inconsistencies that would have arisen

Who has the better legislative history argument? Ultimately, Court rules for upholding the regulation (shades ofChevron

appear here)

2. The Textualist CritiqueDerived from political theory: Rule of law, not rule of men (even legislators)

To look to legislative history you are confusing the history with the law


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Laws have gone through the formal process legislative history has not Blanchard & Continental Can: deeper than political theory

o Actual view into the legislative process the deals struck between lobbyists, theviews of staffers

Theoretical = flawed; Practical = unreliableParole evidence: some sources OK = dictionary

Dictionaries are neutral not partial to one sideScalia worries that leg. history is being read by other judges as the law

No one argues that the dictionary is the lawBlanchard v. Bergeron

Can attorneys fee awarded by the court be greater than the pre-existing contingency feeagreement?

Private parties decided among selves before lawsuit that fees would be capped at 40% ofsubstantive award.

Majority:o Senate cmte report: Atty fees statute ought to be interpreted in light ofJohnson (5th

Cir.) 12 factors and 3 district court cases.

o Even though applyingJohnson itself, the appeals ct reached the opposite conclusion,these 3 district ct cases show how to properly applyJohnson and that pre-existing

arrangement is only one consideration.

Scalia concurrence: Natural reading of statute is that reasonable means what court decidesis reasonable statute says that judge makes the call, who knows how judge decides what is

reasonable.

o Scalia agrees with majority, but throws a tantrum. Mention ofJohnson and othercases only got into cmte report bc of a staffer, probably at suggestion of a lobbyist.

Legislators voting on statute didnt know about these cases.

Isnt it plausible to say reasonable means what judge decides or, if there was a prioragreement, whatever that agreement calls for [unless that prior agreement seems

unreasonable...]?

This case highlights why textualists are suspicious of enterprise of legislative history.Continental Can Co. v. Chicago Truck Drivers


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There is a requirement that pension plan be funded - if not bad things happen. Truckingindustry has notoriously underfunded pensions. Trucking union (the teamsters) lobbies

Congress to get exception to general rule that if pension is not funded negative consequences

befall your union. They have some success, but what was it? How much of a deal were they

able to extract from Congress? Law says that so long as teamsters pensions aresubstantially all funded, they get favorable treatment.

What does substantially all mean?o Ordinary language: hard to say 53% = substantially allo Legislative history:

Rep. Thompson: term of art, 85% Sen. Durenberger: Inserts remark after debate saying it means majority and

nobody object. Does silence = consent? Probably not, statement wasnt made

on the floor incredibly unlikely anyone had opportunity to dissent. Two

months after passage of law, expresses shock at Thompsons understanding of

substantially all statute originated in Senate, House should not be

interpreting!

Durenberger clearly motivated by wanting teamsters support.3. The New Synthesis

Exxon Mobil Corp. v. Allapattah Services, Inc. -

Does 28 USC 1367 overrule Zahn?o 1367 overruled Finley clearly resolved in the statuteo Does 1367 also apply to diversity cases?o Kennedy:

Start with the text (ALWAYS): based on the text, there would be jxd nodistinction btwn federal and diversity jxd - if claims are part of the same

case, there is jxd

Only look at leg. history when the statute is unclear Why does Kennedy look at leg. history then?

o Responding to dissento Might be trying to get votes from other justices who do

look at leg. History

Legislative history: House report:

o 1367 overrules Finley, but Zahn is intact


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o Approves of Subcommittee report Subcommittee working paper: (J. Posner)

o Good idea to overrule Zahn Kennedy no reason to give one report more weight than the other

Sneaky Law Professors: the text is clear, but the sneaky lawprofessors establish legislative history that contradicts the text??

So: text is clear, leg. history points in many directions & is unclear goback to text

o Dissent: Statute is ambiguous

Legislative history is evidence of the fact that the statute isambiguous

Exxon stands for: Legislative history is OK not categorically off limits - but should usewith eyes open & only after arguing the TEXT

4. Legislative InactionBob Jones v. U.S. (SCOTUS, 1983) p. 1050

IRS revoked Bob Jones 501(c)(3) status because of raciallydiscriminatory provisions. IRS created a rule that all

501(c)(3) orgs would be required not to be illegal or

contrary to public policy.

Burger opinion: Purposivisto Taxpayers are subsidizing tax exempt orgs and

would be contrary to public policy to subsidize a

racist org

o Legislative inaction: Dog that didnt bark Congress aware of regulation and could

have addressed it, but did not- acquiescence

o Legislative acquiescence as sign of agreementwith interpretation

Have re-enacted tax code and left provisionthe same

(Counter argument: this supposesomniscient congress and doesnt consider

political inertia)


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o 13 bills had been proposed to overturn IRS rulingand never got out of committee

o Other provision denying tax exempt status to racistsocial clubs- reinforces natl policy against

discrimination Rehnquist response: If Congress could enact a statute to

deny private social clubs tax exempt status, it could have

created the equivalent statute for educational institutions

(expression unio)

5. Presidential Signing Statements Statement by President when signing bill into law What do signing statements do?

o Political rhetoric/curtain call/ shout out to Congress: Uncontroversialo Legislative history: more controversialo Constitutional instrument: most controversial now

Signing statement as legislative historyo Pro: The president is a part of legislative process Art. I Sec. 7

Presidents view should have a role in judicial interpretationo Con: The president is a party to legislative process, but hes not a lawmaker

His role is limited to sign or not sign binary decision Signing statement as constitutional instrument

o President acknowledges certain provisions as unconstitutional & deems not toenforce them

Line item veto dj vu?o Why not veto the whole bill? Omnibus bills not practical to kill entire billo ABA vs. Dellinger: assault on rule of law vs. OK

Does it make a difference? President will enforce the law anyway signing statement just makes his view public

Increases transparency in execution of lawD. Cannons of Construction

1. Semantic CannonsExpressio Unius: plain, cinnamon, sesame bagels all is expressed


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Noscitur a sociis: and chips words have meaning in context

Ejusdem Generis: and other things (cream cheese, not necktie) preceding terms in a list limit

a catchall provision

Other cannons: surplusage, words should mean the same thing across the statute

Silvers v. Sony Pictures Entertainment, Inc.: (Expressio Unius)

Lawsuit over trademark infringement for film Production company assigned Silvers the right to sue for copyright infringement

o The only property right that Silvers owns is the right to sue Q: Under the statute, does Silvers have the right to exercise the right to sue? Statute:

o 501: only legal or beneficial owners of exclusive rights pre-statute: only person who could sue was owner of copyright couldnt

divide ownership rights

o 106: lists exclusive rights Majority:

o Expressio Unius: list in 106 is exhaustive if the right is not listed, there is nocause of action

Because Silvers right to sue is not listed she cannot bring a cause ofaction

o Cannon used as grammatical tool BUT should Congress have included the right to sue in rights that allow a person to

sue? Would that make sense?

Dissent:o Shouldnt have invoked cannon no ambiguity

Legislative intent & history are so clear that they resolve ambiguity of text No need for cannon at all

o Legislative history: House Report: purpose is change copyright from indivisible to divisible

property rights

o Dissent doesnt read cannon as grammatical tool only uses cannon whennecessary, ie after legislative history

o No hierarchy of maxims of statutory interpretation no scale of cannons (like we did with legislative history)


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o Cannons are not binding not law or science, too indeterminateGustafson v. Alloyd Company: (Noscitur a Sociis)

Exchange Act of 34: securities prospectus Wind Point sues Gustafson: WP bought stock from Gustafson claimed material

misstatement in prospectus and wanted rescission

Q: is the sale contract a prospectus? Majority: (Kennedy)

o Doesnt start with definitions!o Starts with substantive provision 10: what should be contained in a prospectus

Information that would be included in registration statement public filingdocument

o Cannon: words should mean the same thing across the statute Prospectus should mean the same in 10 and 12

o 2(10): definition [t]he term `prospectus' means any prospectus, notice, circular,

advertisement, letter, or communication, written or by radio or television,

which offers any security for sale or confirms the sale of any security

Any communication broad, but must be read in light of the rest of thelist

in context means broadly disseminated communication notprivate contract

o Surplusage: if any communication was given a broad reading, all the otherwords would be unnecessary letter, notice, advertisement would be redundant

Thomas dissent:o Should have started with definitionso Noscitur a Sociis: not appropriate no ambiguity, and would limit Congress

ability to create lists

Should have invokedEjustem Generis: for catchall termso Same word has same meaning: not appropriate if Congress says words should

have different meanings, like Congress does here

Prospectus and prospectus have different meaningso Surplusage: Kennedys surplusage argument is circular

Noscitur a Sociis: sometimes obvious, but can be controversial


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People v. Smith (ejusdem generis)

Issue: Smith pulled over in van, in van is an M-1 rifle (a really old military rifle, used bysome as sporting rifle). He is charged under concealed weapon statute.

Why might conviction be able to stick? Statute specifies dagger, dirk, stilettoor otherdangerous weapon

o Based solely on text, M-1 seems to be a dangerous weapon.o But, based on ejusdem generis, dangerous weapon category is narrowed based on

preceding terms something small, easily concealable

o Title: carrying concealed weapons based onHoly Trinity, we know heading canbe used to some extent (heading not really part of statute since doesnt necessarily go

through bicameralism & presentment, but can be helpful)

o Theres another statute carrying a firearm with unlawful intent which D shouldhave been charged under

Noscitur a sociis side note on stiletto: knife, not high heels

Current events: Defense of Marriage Act

States have the right to recognize same-sex marriages or not Dept. of Justice will not defend Constitutionality of Defense of Marriage Act Signing statement (Clinton): this law is a good idea Now, Obama says I dont consider this Constitutional

o Still going to enforce isnt that a problem? Should the president faithfullyenforce a law that he considers unconstitutional?

Lenity

United States v. Bass:

Statute: "who receives, possesses, or transports in commerce or affecting commerce . . .any firearm . . ."

Q: Does in commerce apply to receive or possess or just transport? 2 Views of Lenity:

o Permissive view: When a statute is ambiguous the tie goes to the criminalaccused

o Restrictive view: Ambiguity must be grievous before lenity is invoked (OConnorin Smith; Muscarello)

Dissent:


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o cannot ascribe to Congress such a gesture of nonaccomplishment surplusage:this statute shouldnt be read to overlap with another statute

o Other Substantive cannon: absent a clear statement by Congress, shouldnt read astatute to change balance between Federal & State power

Constitutional avoidance: Commerce clause majority may apply commerce to all actsto avoid any constitutional issues

o Like the dissent in Catholic Bishop tie breaker reading of cannon Not like Majority will rewrite the statute to avoid any possible potential

contact with Constitutional issues

McBoyle v. US:

Review of First of Semester Q: is an airplane a vehicle?

o Definition: any other self-propelled vehicle not designed for running on rails =Ejusdem Generis

Catchall phrase defined & narrowed by elements of listo Legislative history

No discussion of airplanes in relation to the statute in Congress Hypo: if Statute was passed before airplanes existed??

Congress could have amended the law to include airplanes later Dynamic Statutory Interpretation: reading old law in view of new

circumstances

o Lenity: ambiguity read for criminal accused Ordinary people should know what the laws mean in advance (argued by

Holmes)

Public Choice explanation: Powerful govt vs. weak individuals -Congress is more likely change the law if the Govt. loses

Congressional Intent: Congress would want lenity Criminal law is different: Public, moral condemnation punishment

should reflect moral values of public at large should be careful to reflect

public judgment, not just judges

REGULATION AND THE ADMINISTRATIVE PROCESS

(ie. Second of the Semester)


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Delegation and Nondelegation

A.L.A. Schechter Poultry Corp. v. United States:

Kosher chicken farmers allowed customers to choose specific birds Live Poultry Code: new law regulating sales of poultry

o Promulgated under NIRAo Trade association proposed code signed into law by presidento NIRA: to ensure fair competition (ie keep prices of goods low)

(Side note: NIRA had more pages than all other American statute law upto that point)

Ultimate question: who is going to regulate US business? Issue: Are the rules promulgated under the NIRA constitutional?

o Art. 1, 7: formal process the rules didnt go through the process, but the NIRAdid

o Congress delegated to special interest groups & president, ultimately, to makelaws

Hampton: Congress gave President intelligible principle Congress must give guidance for delegation of power Better for the president to fill in number practical reason:

requires expertise & dynamism

Schecter Poultry

Global, not just local, dimension in New Deal: some believe international relations matter toSCOTUS this case informed by fascism/Italy/Germany

o Another example: some say Brown v. Board has global meaning: if US is going towage ideological war successfully, it probably shouldnt be practicing apartheid at

home

Not a straight up application of intelligible principle rule of Hampton Other issues animating courts opinion:

o Magnitude of power: enormity of task being given to President too big to outsourceo Private groups: this isnt just delegation from Congress to President to engage in

lawmaking/implementation/execution; this is one step removed because delegation is

to private actors law being made by private citizens

o Absence of administrative agency: its a joint effort of private groups and presidento Lack of administrative process: no guaranteed recourse method for groups left out


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When confronted with problem, court usually injects more process especially judicial review - rather than addressing problem head on

o At this time, SCOTUS was striking down a lot of legislation as being beyondCongresss commerce power

o Fair v. unfair competition: maybe harmful things are more defined and potentiallygood things are harder to pin down; maybe this gives leg up to those currently in the

industry at expense of newcomers

Nondelegation in general

Constitutional foundation of intelligible principle doctrine?o Theres no mention of delegation in the Constitutiono Vesting clause of Art I 1: alllegislative power resides in Congress (allmeans no

sharing is permitted, so we cant actually give legislating power to Executive) this

seems to be strongest argument for SCOTUS

o Art I 7: bicameralism and presentment - but in Schecter, NIRA did go through thisprocess

o Separation of powers: there are outer limits to how much collaboration can happen Why do we have this doctrine?

o Democratic accountability (Rehnquist in Benzene): legislators are elected, agencyheads are appointed legislators have certain responsibilities

oBenzene

Occupational Safety and Health Act created OSHA and the National Institute ofOccupational Safety and Health, a laboratory to run the numbers (technocrats). OSHAs

mission is to ensure to extent feasible employees arent harmed in work place.

OSHA created in 1970s because: emerging scientific technical knowledge of harmful effectsof toxins in workplace; recognition of unequal power/access to info in the workplace; effort

to make life better for working people even if it in a sense taxes industry

OSHA says secretary must create standards for health and safety to extent feasible Study links benzene to cancer Standard set for 1 part per million, but excludes people who work at gas stations Best textualist argument that 1 ppm standard is good: cite to 6(b)(5) no employee

means no employee and most adequately assures means just that and benzene has been

linked to cancer so gas station workers should be protected too


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o Why shouldnt standard be 0 ppm? Statute says feasible. Maybe 1 ppm fits thisbecause agency can oversee it and industry can survive it. SCOTUS says no cost

benefit analysis. Or does feasible mean doable?

Plurality: 3(8) safe cant mean risk free so reasonably necessary or appropriatemust only apply once weve determined theres a substantial risk only then do we get to 6(b)(5) analysis

Delegation issue: If statute read in way gov read it, there might be a delegation problem.o Delegation problem if legislature said There shall be no sick workers!? Maybe this

takes away need for balancing so Rehnquist would be ok with it. This is less open

ended / open to different interpretations that to extent feasible. Rehnquist doesnt

like to extent feasible bc invites regulator to make more determinations / do cost

benefit analysis in a way that gives Congress an improper way out of its duties.

Plurality uses nondelegation doctrine as a kind of avoidance technique, whereas Rehnquistwould have used it as in Schecter Poultry to strike down statute.

o Reads language into 3 to get out of potential delegation problem. The claim that 1935 was only year in which nondelegation doctrine had legs is a distortion

yes, thats the only year SCOTUS struck down law because of doctrine, but its still doing

work as a canon of avoidance.

ARS

3/7/11

Benzene

Rehnquist:o Would have struck down statute as unconstitutional under non-delegation doctrine

because this isnt a technocratic issue that belongs to an agency, this is the rock

bottom policy/moral issue that must be made by the legislature.

o If latitude that statute affords to agency decision maker were somehow taken out andagency head had to literally make sure nobody would ever get sick from benzene, that

would be ok because would no lack an intelligible principle.

Rehnquist vs. plurality:o nondelegation as rule by which SCOTUS strikes statute vs. nondelegation

reincarnated as canon of constitutional avoidance

o Rehnquist concerned about giving too much policy discretion to agency administratorvs. plurality very concerned about magnitude of power conveyed OSHA could turn

world on its head


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Black letter law of intelligible principle vs. concern about magnitude carries through toAmerican Trucking

American Trucking

D.C. circuits decision seemed like a revival of 1935 Clean Air Act: Congress gave EPA power to determine permissible level of pollutants

o EPA must establish uniform national standards that are requisite to protect the publichealth allowing an ample margin of safety

D.C. circuit conceptual problem: says violation is built into agencys decision, not statute, inwhich case answer is to send issue back to agency to create intelligible principle for self but

if whole principle is that Congress cant punt on critical policy choice, answer to that

problem isnt to empower agency to elect to be bound by more narrow version of statute

o Maybe D.C. circuit did this because it would have been too momentous to actuallystrike law on nondelegation doctrine

Holding: No non-delegation problem. Requisite is clear enough.o But why is this different from Benzene?

Maybe its a magnitude issue (Scalia alludes to this). Maybe when Benzene decided no resolution as to whether CBA can be taken

into account, but by the time of American Trucking its clear that CBA cannot

be used.

Rascoff: Its really not clear. Different views about what power is being delegated:

o Scalia: Built into executing the laws is some level of interpretation. Whats beingdelegated is executive power, not law making power. Scalia is formalist its

essential to understand that hes talking about giving away power thats built into

executing.

o Stevens: What were determining are the permissible boundaries of legislative powerthat can be given by Congress to some other entity. There are limits about how much

and to whom the power can be given, but lets be honest - this is legislative power

thats being given.

o Thomas:Legislative power, though not exactly talking in Scalia and Stevens terms. Ultimately, not a return to 1935, but nondelegation is still part of the logic of the

administrative state.

Bowsher


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Were trying to figure out who is in charge and where the administrative and regulatory stateis located. Fundamental issue: person who hires/fires is in charge.

This case fits with Chadha nondelegation is about all the things Congress cannot giveaway, but there are also limits to what Congress can hold on to once theyve created

agencies. Chadha and Bowsher are the flip side of the nondelegation doctrine. Comptroller is basically presidents chief of staff on budget slashing clearly acting in an

executive function. However, under the organic law that created the comptroller general, the

comptroller can only be fired by Congress.

When Congress fires executive officials, we call it impeachment. Under the constitution,impeachment is exclusive means by which Congress can fire an executive official.

How is this the Stevens opinion same as in Whitman? Same as debate Stevens is having inWhitman with Scalia.

o Here, Stevens say lets be honest and recognize that this is legislative power thatsbeing granted. But in Whitman Stevens said that was ok. Why not here? Problem is

not giving away legislative power to an agency thats done all the time but here

power is being given to the J.V. congress. Majority says comptroller is an executive.

Stevens says the problem is that Congress is delegating to one of its own, in which

case Art I Sec 7 is not being respected (Chadha problem).

o One rational for delegation is to give power to people more capable of making thesedecisions, and if youre just giving power to junior varsity congress, rationale falls

through.

o Here Congress keeping second bite at apple for itself, just as in Chadha.o Congress delegating to itself is problematic under separation of powers - self-

aggrandizement of one branch without oversight from other branches. Stevens more

concerned with this than formalistic issue of executive official being answerable to

Congress.

What if statute said comptroller serves for a 10 year term and can be fired by president onlyfor cause?

o We no longer have problem animating majority opinion (Congress being able to fireexecutive official).

o But, there has to be some political oversight otherwise weve given enormouspower to an unelected official, and thats crazy! But we do it all the time (Bernanke)

why is it ok to have commissioners on independent agencies serve at the pleasure of

themselves? This is an issue of the independent agency.

o Whites opinion shows that court declined to deal with this issue in Bowsher.


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Independent agency: usually characterized by lots of commissioners, appointed at differenttimes and from different parties; open constitutional question about who is in charge. Open

question for Obama administration: can independent agencies be required to report to head of

OIRA on costs and benefits of initiatives and plans for next year? Historically, independent

agencies didnt have to do this.

Buckley

As per usual, formalist majority opinion, angry functionalist dissent from White. Issue: Firing/hiring of commissioners on independent agency. Commissioners to brand new

post-Watergate Federal Elections Commission (FEC) are chosen by president, Congress, and

Senate, each of which get two draft picks for commission, and each draft picker must pick

one Republican and one Democrat.

Problem: Appointment to commission that doesnt go through what formalists say isexclusive mechanism: Constitution says nothing about appointment of officers by Congress.

What makes an officer different from an employee? Exercising significant authority not avery helpful explanation. FEC commissioner is at minimum an inferior officer.

Here, formalism combined with loose issue of who is an officer.Appointment and Removal

Myers v. United States:

Postmaster general was asked to resign refused Q: Does Senate need to consent to removal?

o Statute: may be removed by the President by and with the advice and consent ofthe Senate

o Is statute Constitutional? Why is Senate approval important?

o Trying to create independent civil service not a system of patronage by thePresident

o Anti Tammany Hall politics Majority (Taft):

o 1789: First Congress debates who can hire/fire head of Ministry of ForeignAffairs (State Dept)

If they had passed statute: removable by the president


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Pro presidential power: very clear that the position is removableonly by president

Pro Myers: many members of first congress had intimateknowledge of Constitutions (signers) if they felt need to add

statutory language, it must not be clear in Constitution Actual statue passed: in the event that the Pres removes etc

Leg. History: Congress was persuaded by Madison that languagethat Pres could remove was superfluous its clear from

Constitution!

o Practical considerations: President is given the power under the Constitution for practical execution

of the laws

At the time of hiring who is better at evaluating candidate for postmastergeneral?

Pres & Senate equally At the time of firing who is better at evaluating his performance?

President!! Day to day performance in executive branchultimately under the president

o President in position to monitor the position Dissent:

o Holmes: presidents power to execute is limited to executing the laws thatCongress has passed

o McReynolds: re-reads leg. history & comes out on the other sideo Brandeis: historical practice of state governments at founding pres. Power to

fire is in tension with power of states

Myers ultimate takeaway: President has power to remove executive agents

High water mark of presidential power Clearest statement of: President is in charge. Full stop.

o Pres. power goes downhill from here.Humphreys Executor v. United States:

Came out same week as Schecter Poultry another dig at Presidential powero Supreme Court fight against domestic autocratic/tyrannical govt in US (not just

WWII Europe)


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President wants to remove member of FTC Humphrey had been appointed by Hoover Roosevelt wanted to replace

o Humphrey refused to resign Whats different btwn Humphreys & Meyers?

o Postmaster = purely executiveo Federal Trade Commission = quasi-legislative

Establishes new formula for removal powero Pres. can remove agents with purely executive functiono If quasi-legislative, quasi judicial function different

FTC is quasi-legislative & quasi-judicial because:o Leg: Reports to Congress

Make rules notice & comment rulemakingo Jud: can be special master

Agency Adjudicationo Not just executing a function overlapping boundaries btwn ex. & leg.

Because FTC straddles boundaries, the Pres. shouldnt have the exclusive right to fire Epitome of Independent agency:

o Multi-year tenureo Expertiseo Removed from politics

Senate didnt win president was limited, but Congress didnt get any power toremove from this case

o Congress cant give itself power cant aggrandize its power at expense ofPresident but presidents power can be limited

Tie back to Scalia vs. Stevens on delegation (Am. Trucking):

Scalia: delegation of executive powero How does Scalia deal with Humphreys test? How does quasi-legislative fit in

delegation of only purely executive power?

Stevens: delegation of legislative powerMorrison v. Olson:

Independent Counsel: post-Watergate investigator How to set up Ind. Counsel: Attny general conducts investigation; Recommendation to

Special Court; Selected by Judges in DC Cir

Job = federal prosecutor, BUT only investigate one case/person/matter


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Prosecutor = purely executive! (same as mailman)o Not making policy, not adjudicatingo Under Myers & Humphreys President should win right??

Majority (Rehnquist):o No! New test:

Functional test: is the function so essential to the President's properexecution of his Article II powers?

No Dissent (Scalia):

o Worried about Ken Star: Accurately predicts Ken Star presidents ability to ensure the laws are

faithfully executor is actually hampered by independent counsel

ARS

3/10/11

Can the president reign in the regulatory state and if so how and whats the status of costbenefit analysis (CBA) as technique for creating centripetal energy w/in the regulatory state?

How does Congress maintain power over regulatory state beyond legislative veto (which theycant really do, anyways)? Even if legislative veto were permitted, it couldnt be central

mechanism

o Appropriations: if Congress doesnt like what agency is doing, it can decreaseagencys budget

o Riders: attach riders to other bills barring certain things (ex: attach to defensespending bill a rider saying that no money can be used to open federal courts to

Guantanamo detainees)

o Change organic statute that created the agency to chance agencys scopeo Oversight hearings: public shaming theres a debate over whether oversight really

has much bite

o Senate confirmations: can be used as a chit Practical power that the president has over the administrative state:

o Reagan is key to ARS: Enterprise of textualism Signing statements Assertion of presidential control over ARS

What are Reagans early executive orders about?


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o E.O. 12291: regulatory impact analysis of any proposed substantial rulemakingaccompanied by CBA OMB must receive prepublication reviews accompanied by

CBA

Over $100 million = significanto E.O. 12498: agencies give agenda to OIRA regarding following year and OIRA

reviews the agenda and can give agency more direction this is standing yearly

requirement as opposed to 12291, which is rule-specific

No real subsequent attack on this unitary executive. Why? Presidents like power. ElenaKagan convinced Clinton not to get rid of the power Reagan had created.

Clintons E.O. 12866 (pg. 554):o Sec. 1(a): CBA includes quantifiable and qualifiable issues

Seems like a letting up on CBA / backing off of Reagan ordero Sec. 3(b) (pg. 556): definition of agencyo Exempts Pentagon and other agencies related to military affairs from this E.O.

Does this make sense? Seems like a valid occasion for CBA.o Pg. 557: planning mechanism: annual obligation to report does include independent

agencies (Sec. 4(b)) (under Clinton E.O., agencies get free pass on CBA but not this)

o Sec. 7: independent agencies are now part of the order; president / presidentsdesignee (VP) has power to break conflicts/ties between agencies

CBA:o Dollar comparison pluses and minuseso Ex: pollution regulation: requires businesses to purchase new chimney attachments,

compliance/implementation costs, opportunity costs / regulatory costs not taken,

employment costs, reduced health care costs (asthma), deaths

o Biases identified in CBA: people usually mean its biased in favor of business andagainst regulation

Second order costs: If regulation kills off jobs, can we consider cost ofproviding health insurance to now unemployed people as a cost? Or too far

removed?

Revesz: If youre going to count 5 step removed costs, also count 5step removed benefits.

o Example: car industry is regulated re: how much carbonmonoxide can be emitted to save us from environmental

damage of carbon monoxide poisoning can we count as a

benefit the fact that lives are saved because of reduced


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suicides/accidental deaths that used to result from carbon

monoxide buildup from cars in garages?

Bias not in CBA itself, but at institutional level: OIRA review proposedregulations - it tends to block regulations as opposed to instigating new

regulations prompt letters are really the exception Senior discount: Is it appropriate to value all life the same? Conservative anti-

regulatory people say grandmas life is worth less than young peoples lives.

But elderly are gatekeepers of knowledge, make/possess more money,

scarce resources are valuable resources (if you only have 3 years to live,

maybe each year is more valuable).

Possible that to extent OIRA is putting break on regulation it only countershow gung-ho agencies are. But during anti-regulation administrations,

agencies tend to be less into regulating. And there is concern about agency

capture.

Administrative state came into being to get around capture and otherproblems, but at this point seems like its not still filling that role.

o Potential normative problem with CBA: theres too much out there that we miss putting price tags on peoples lives, actuarial view of humans is insulting / wrong

conceptual foundation for thinking about regulatory regime But whats the

alternative? A more qualitative approach? Seems difficult to pick right monetary

value for different costs and benefits it should be a values project, not a

science/wonky/economic project.

[Independent agency: Can president fire head just because, or only for cause? Does it havecommission in the name? ]

ARS

3/21/11

Basic structural questions about administrative and regulatory state

Who is in charge? What is constitutional status of ARS? Angles:

o Who can fire whom?o Non-delegation doctrine


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o What does OIRA w/in OMB do and how does President try to assert more robustpolicy control over administrative state (initiative embraced by Democratic and

Republican presidents alike)?

Judiciary Today is last discussion of separation of powers and big constitutional questions: what role

do courts play in all of this?

Caveat: what were talking about today is courts not as supervisors of ARS, but as alternativeto / in relation to administrative state

CFTC v. Schor

Whether CFTC (Commodity Futures Trading Commission) can hear common law counter-claims

CFTC has oversight over items like oil [and pork bellies!] CFTC has authority to deal with reparations procedures (individual can move against broker

to recover money from broker who failed to carry out transaction)

Judge-figure for reparations procedure: ALJ (administrative law judge) a kind of bureaucrat If youre unsatisfied with ALJs decision, you appeal to a commissioner (standard of review:

de novo)

Issue here: Congress in 1974 gave ALJ power not just to adjudicate claim that arises understatute itself but also counter claim which may arise under state law

o Individual says he bought Twitter stock, broker says no, and furthermore, accusesindividual of fraud (falsified screen shot) is it ok for CFTC to hear the fraud

counter claim?

Does this take away too much power from judiciary?o Seems logical for CFTC to hear counter claim fits with one logic behind

administrative state: desire for efficiency and expertise.

o Art. III courts provide more protections: impartiality, life tenure, insulation frompolitics. But why do we care about this only for counter claim and not initial claim?

o Majority erodes distinction bw public (created by Congress rights didnt exist priorto intervention of Congress, so Congress can circumscribe the right) and private

(common law) rights: Congress can say reparations complaint goes to ALJ bc right

created by Congress

In place, majority says to look to nature of right (here, there isnt a bigexpansion of power its not like ALJ is now hearing criminal issues)

OConnor majority opinion is functional


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Dissent (Brennan): formalist I thought when Constitution gave federalcourts power to adjudicate claims, theyd adjudicate claims now youre

telling me sometimes ALJ will! Focuses on diminution of judiciary.

This is similar to formalism of Scalia in Morrison! Critique offunctional encroachments.

Based on this holding, why cant individuals trade away rights? That goes toheart of constitution individuals dont have the right to trade away.

Comparison: Congress cant give away line item veto right to President.

Benslimane & Immigration Issues

[recording of oral argument] Ashcroft press conference: IJ (like an ALJ in immigration context) decision is subject to

review by BIA efficiency achieved by having only 1 BIA judge instead of 3 hear most

cases, firing half the judges, BIA doesnt have to review factual record or write a written

opinion/reason in which case what really happens is massive inefficiency is created, and

manifests itself in appeals court

Maybe we can have administrative state be as silly as it wants since at the end grown up (ArtIII appeals courts) show up and fix things? But Art III judges are quite deferential to lower

decisions. Fed appeals ct judges cant save the day for everyone.

Maybe its not technocracy, but politics, thats the problem Ashcrofts plan (exceptreducing size of BIA) would make sense if the judges were competent, and thats a political

issue.

APA

APA is a statute, but different in that it supplies something like a constitutional frameworkfor the administrative state supplies legal architecture

APA sets out rules/procedures when agencies regulate in 1 of 4 possible ways 551: definitions:

o (1) agency: does not exclude independent agencieso (4) rule: if you engage in rulemaking, you end up with a rule something where the

agency is regulating in a pseudo-legislative mode has more of a prospective focus

(we will now regulate mercury as follows)

o (6) order: if you engage in adjudication, you end up with an order ALJ orcommission resolves a dispute statute defines order as basically anything thats not

a rule the universe of orders is very wide (ex: recall of a drug by FDA doesnt

look like result of adjudication, but its not a rule, so its an order)


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Rulemaking Adjudication

Informal -553-notice & comment: FDA decidesmenthol cigarettes are dangerous

and want to issue rule eliminatingthem, so they issue notice toworld of intention to make rule,put it in Federal Register,industry/activists can then weighin, then if agency decides to goahead w rule its published againincluding gist of comments andexplanation for why it decided todo what it did

-no provision of APA for this!

Formal -556-557 (were directed here by

553(c) when rules are reqd bystatute to be made on the recordafter opportunity for agencyhearing)

-554, 556, 557

-looks most like a court proceeding

ARS

3/23/11

APA

Rulemaking Adjudication

Informal -553 -no provision of APA for this!

Formal -556-557 -554, 556, 557

What do you get when you get formal process? New Dealers wanted regulatory state tostand on its own so created formality, process, structure, such that administrative state

behaved plus/minus like a court.

oUnbiased tribunals (556, 557): but agencies are policy makers, not judges ALJ isemployee of the agency which has distinct interest in adjudication

o Notice of proposed action and grounds (554(b))o Opportunity to present reasons why proposed action should not be taken (556(d))o Right to present evidence, including right to call witnesses (556(d))o Right to know opposing evidence (556(d))


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o Right to cross examine adverse witnesses (556(d)): example management cancross examine NLRB

o Right to decision based exclusively on evidence presentedo Right to counselo Tribunal must prepare record of the proceedingo Must prepare written findings of fact and reasonso 557: regulated agency has right to appeal

Florida East Coast Railway

Two types of challenges:o Substantive authority of agency to do what it did: agency exceeded its authority by

doing what it did (well get to this with Chevron)

o Process not being followed / wrong type of process being applied: railway says govregulator (ICC Interstate Commerce Commission)

ICC was trying to regulate market failure: too few freight cars, cars not in right place at righttime so gov trying to manipulate market so cars would be in right place at right time

o Began to do so through formal process of rulemakingo But Congress complained that process was taking too long

Like the peanut butter fiasco (can you call yourself peanut butter if youre only78% peanut?)

o So ICC decided to do it in more informal fashion, which means railways loose lots ofrights to be heard

Regulated entity now challenges rule saying it didnt get chance to tell its story throughformal mechanism

Statute says that ICC may establish rules after a hearing so railway says ICC required touse formal rulemaking

But SCOTUS: you need on the record and after an opportunity to be heard in the statute toget 556/557 formality

o Courts reasoning: if Congress wanted something to fall under 556/557, they knowhow to other statutes contain the requisite phrase, this could have also if Congress

wanted

This opinion stands for the end of formal rulemaking! Constitutionaldistinction bw adjudication and rulemaking:

o if gov (ICC) imposes tariff on everyone and they set a rate that applies to everyone in


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the business that is keyed to a schedule, SCOTUS under Londoner and Bi-Mettalic

would be inclined to say no extra right to petition gov bc your railway was treated

same as everyone elses (its a legislative act in the sense that its a rule of general

applicability) no extra due process right to be heard

o but if you are singled out (because of where you live, what type of corporation youare, etc.) and treated differently from other entities (ex: heres the rule for FL East

Coast Railway) you get due process protections of adjudication

o Douglas dissent is based both on APA and this constitutional distinction APA, although a statute, its necessarily subject to normal statutory interpretation (even

textualists will look more to precedent instead of text)

Why does it take gov so long to solve problems? A company would solve these problemsreally quickly. FL East Coast focuses on this system is broken if it takes so long to make a

decision.

But now that formal rulemaking is extinguished, informal rulemaking becomes more formal.Nova Scotia Food Products Corp.

What notice and comment rulemaking has come to be in light of FL East Coast Challenge to enforcement action taken by agency to shut down Nova Scotias ability to

produce white fish (unusual challenge usually comes as soon as rule comes out)

Some entities actually commented on proposed ruleo Commercial fisheries agency intervened saying this rule will kill the industry because

fish will no longer taste good

o Nova Scotia says rule should be fish-by-fish (temperature may be good for one fish,but not white fish)

Agency did follow notice req, comment req, and rule actually did incorporate some of thecomments seems to follow 553

2nd Cir.: FDA didnt get 2 things right:o agency must show its math

for judicial review at the back end there must be a record that court can basereview on

553 requires that notice be given to potentially regulated entities if agencyhas science theyre basing their proposed rule on, they have to include the

science in the notice its part of notice and meaningful comment requires it

o 553 requires concise general statement: court wants to see that agency hasinternalized the comments (can accept or reject, but must give explanation for why)


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Problem: ossification of rulemaking: what was supposed to be efficient way to make rules isnow elaborate process based on plausible but not necessary reading of the APA

If the railways are about peanut butter, white fish is about capture.o White fish is about capture: often concealed in agency making process are biases

because of capture (steak lunches) show me the math allows us to have

confidence that agency is actually regulating on behalf of public instead of based on

capture by special interest

ARS

3/28/11

Chenery (adjudication)

Case comes down around APA passage, but facts predate APA so no reference toadjudication under APA nonetheless, Chenery endures as binding precedent in post-APA

world

Congress passes law empowering SEC to redo corporate structure of public utilities. FederalWaters had 2 different types of stock preferred (gets dividends) and common (gets to vote).

Chenery held most of power over common stock, was essentially in control of Federal

Waters. Congress says SEC can either reset company or company can come forward to SEC

and present plan on how its going to effectuate statute and SEC can approve or deny the

companys volunteered plan. SECs decision is adjudication, results in order.

SEC says no to companys plan. Plan is not fair and equitable.o Fair and equitable comes from statute very vague, threatens nondelegation

doctrine. Case not decided on this basis, but worth noting.

SCOTUS in Chenery I:o SEC decided case based on circuit and SCOTUS precedent, but court held that theres

no judicial basis for striking plan down.

o Because SEC cites to judicial precedent, we limit ourselves to that judicial precedent,and dont entertain SECs policy argument for their decision. Why?Judicial review

of administrative decision making is lmtd to reasons/record that drove agency

determination no new evidence/rationales.

Why? No surprises in court. Chenery II: Understanding that SCOTUS will only make decision based on reasons that

drove determination, SEC says same outcome as before can be reached with new teaching:

when company undergoing reorganization, the shareholders who control the company have


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extra responsibility not to undertake certain transactions that might benefit themselves and

hurt others. Basis for holding? Statute itself 11(e) and 7(d).

o Question 2: Can agency permissibly announce new rule through adjudication? Issueis that Chenery had no notice that rule was going to be changed in middle of game.

But SCOTUS says thats ok statute says SEC adjudicates (thats how Congresswrote the statute). It remains ok for agencies to change things like this through

adjudication.

Why would NLRB want to make changes through adjudication instead ofrulemaking? Easier, more flexible labor is too politically heated to go

through rulemaking process. NLRB has thus historically always used

adjudication.

Fundamental weirdness: agency is doing same thing it does through rulemaking, but doing itthrough more microscopic approach same change in the world, different approach

Jackson dissent: Obsessed with authoritarianism because just back from serving as leadprosecutor at Nuremberg trials.

What if NLRB wants to change policy based on politics? Stay tuned Rascoff clarification: If agency had done this through N&C rulemaking, no issue in front of

SCOTUS. Really? As long as its a plausible interpretation of the power Congress conferred

on the agency.

Londoner and Bi-Metallic

How does Holmes in Bi-Metallic create distinction between Londoner and Bi-Metallic? Holmes intuition: You get due process (DP) in some circumstances, but not others. DP

comes up when an agency decision has a disproportionate effect on a small group of people

then people have right to petition agency and be heard from.

o Why? In part: too many people to hear from (efficiency / gov administration problem

cant give every person in Denver right to petition re: tax increase).

Mainly: political process failure issue small groups dont have ability to dobattle, so we empower them and let them take fight to court or agency

Also, epistemology: how illuminating hearing from people is usually moreilluminating in case of adjudication than rulemaking its not helpful to have

everyone in Denver come say they dont want to pay more in taxes, thats

obvious


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Bi-Metallic: everyone hit with 40% tax increase no DP bc politics takes care of the problem(politics as alternative to DP)

If were talking about what DP ought to look like, weve already decided that were inLondoner world, where DP is relevant once were in Londoner world, we can move onto

Goldberg analysis

Goldberg v. Kelly

How do we think about DP in world in which private v. public sector distinctions no longerapply? Longstanding distinction in DP jurisprudence had been rights v. privileges, but that

has been weakened. Public benefits no longer viewed as that different than other rights

court becoming more willing to look at spectrum of rights.

Brennan majority:o Backdrop: Deprivation of stream of payments from gov as deprivation of property.o Do you get pre-deprivation hearing for termination of welfare benefits? Yes.o Whypre-deprivation?

This group of people do not have access to lawyers, they arent going to go onpost-deprivation letter writing campaign any chance to wage meaningful

challenge must be face to face and pre-deprivation.

Will this make welfare recipients worse off bc now gov agents who wouldotherwise be forthcoming with welfare will be hesitant to put ppl on the

welfare roles because of how hard it is to get them off?

Dignity! Process not as Watson (robot), but as individuals right to haverecourse against gov.

In most cases, post-deprivation is good enough, but if you wait extra period oftime for welfare recipients, youre really not giving them anything at all.

Matthews v. Eldridge

Goldberg experiment is over, even though Court says its hard to distinguish Matthewsagainst Goldberg.

How does court distinguish very poor people from very disabled people? Seems like verysimilar group.

o But you can be rich and disabled, whereas you cant be rich and on welfare.o Disability benefits more based on objective expert information.

Technocracy/expertise/science as compensation for absence of process (like political

process as replacement for DP in Londoner/Bi-Metallic cases).


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Sally Katzen, former head of OIRA

Ex. Order 12866:

Centralized review for a long time at least to Nixon Administration

Agency head is not elected, so it is important for review at the presidential level Nixon institutionalized review in OMB, OIRA Regulation under Reagan

o Instituted cost-benefit analysiso Not transparent

Democrats hated not reform, but reliefWhy centralized review?

Example:o EPA focuses on pollution largest polluter is cars

Would want smaller cars less pollutiono NHTSA focuses on car safety

Larger cars are safero How to balance both interests?

Clinton: Ex. Order 12866:

Some changes:o Dont review all rules only important ruleso More transparency

Records of meetings Send records to public docket

o Tried to stress benefits, which are harder to monetize than costs Lasted through Clinton into Bush

o Minor change = VPs roleBush amended: politicized review

Slightly more deregulatoryObama rescinded Bush amendments Back to Clinton Ex. Order

Directive to OMB for recommendations for new Ex. Order


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2010 elections: Business asked for changes to Regulatory state

Effects on job creation, competition, innovationObama executive order:

The regulatory state should promote public health, the environment. Innovation, jobcreation, etc

Reaffirms centralized review & role of OIRAWhats it like to be at OIRA?

Under the radar Autonomy Reviews all executive branch orders not independent commissions

Challenges from agencies:

If data, assumptions were faulty, etc send comments to agency Often, agencies would agree Sometimes, agency pushes back

o Elevation: staff raises issue to managers, eventually to Administrator Administrator calls politician in charge of agency

o Fluid processPrompt letters: rare

Agencies are normally raring to pass regulations dont normally need to prompt themLobbyists:

Money use $ for access Information help craft the message

Cost benefit:

Costs are easier to monetize than benefits, but some benefits are essential Flawed, but nothing better

Independent commissions:

80s: Reagan wasnt willing to take big steps 04: OLC reaffirmed that there were no Constitutional issues

o Political reasons:


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Viewed as independent Congress views as special, congressional babies IRCs shouldnt be handmaidens of President, but also dont want as

handmaidens of Congress

Different environment?o Dodd-Frank requires hundreds of rules from IRCs who will review?

Is OIRA review a substitute for judicial review?

No courts have a different function Courts have a broader view than OIRA can hear issues that OIRA cant It takes a village to raise a child OIRA, courts & Congress

ARS

4/4/11

Due Process

How does elaborate machinery of state interact with life of individual welfare/disability/etc.recipient?

Goldberg: due process as way to uphold individuals dignity Matthews v. Eldridge: due process as way to get right/better resultsHamdi

Gov briefs: Constitution gives president power to act this way in name of war US picked up many detainees in course of war, but Hamdi is American (born in US, raised in

Saudi Arabia). What happens when US citizen is picked up in battle field with powerful

evidence that he was fighting against US? First, Hamdi was brought to Guananamo Bay,

then US realizes hes American citizen and decides they have to get him out gov doesnt

want to infect Guantanamo with American, who has habeas rights. Hamdi brought to

naval brig in US.

Detention is used in war to incapacitate, and for interrogation to extract intelligence. Hamdi says hes an American with due process rights cant hold him without being

charged and prosecuted.

Holding basically splits the baby: OConnor says no to gov being able to do whatever itwants, and no to Hamdis argument that he should be treated like any other American picked

up in America.

o Use Matthews test:


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Interests of Hamdi: liberty and freedom not being held w/o access to lawyer,etc.

Interests of gov: keeping Hamdi off the battle field, getting information Risk of error: high risk of confining aid workers, UN officials, journalists, etc.

we need DP to avoid detaining these innocent peopleo Court begins to chip away at absolute war powerso Due process: Hamdi doesnt get everything he doesnt get full trial, opinion doesnt

say he has to get his due process in a court house.

Judicial Review of Agency Policy

APA 706 Scope of Review

706 (1): Court can compel agencies to do things theyre not doing (think about how thisrelates to compel letters)

706 (2): Court can hold unlawful and set aside agency action and findingso (E): in cases of 556 or 557 (formal proceedings), court can set aside action if its

not based on substantial evidence this standard makes sense for formal

proceedings, were we have a formal record to examine

o (B): contrary to constitutional power (ex: if it violates due process think aboutHamdi scenario)

o (D): without observance of procedure required by law (ex: if agency issued rule onday comment period ended, without reviewing the comments it had received)

o (A): in cases of N&C rulemaking or informal adjudication, court can set aside actionif its arbitrary, capricious, or an abuse of discretion court is not criticizing

agencys power/authority to act, but rather what they ultimately concluded rule

doesnt pass test of plausible policy outcomes in this area

unclear what arbitrary and capricious actually means used to meangovernment always prevailing unless its outlandish then courts feel

compelled to do more searching review

Why did courts change how they reviewed? Awareness of agencycapture, rise of public interest litigation

Ethyl Corp v. EPA

N&C ( 553) rulemaking leads to new rule about permissible amount of lead in theatmosphere under the Clean Air Act


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EPAs limit is challenged by big gas stations under arbitrary and capricious standard of 706(A)

Majority: Holds in favor of EPA. There is a rational that supports this conclusion (its notthe only rational, and other conclusions could be supported, but thats ok). Theres a means-

ends rationale here. Scientific inevitability isnt required, just plausibility. Dissent: Agencies must make decisions in way that reflects complete chain of logic must

explain methodically how scientific study gives rise to this rule, its a no-go.

Leventhal statement: technocratic view judges should supervise scienceo Judges are capable of educating themselves about technical issues (example: patent

cases)

Bazelon concurrence: wants to proceduralize arbitrary and capricious review, judges jobisnt to focus on science

Over time, Leventhall opinion has tended to win out. Called hard look review agenciesand courts should take a hard look at whats going on.

Overton Park

SCOTUS: Were doing hard look review. Federal gov wants to built interstate east-west highway through Memphiss Overton Park. Issue: Secretary of transportation cannot built interstate through park if it is feasible and

prudent to build it somewhere else. Claim is that secretary did not consider feasibility and

prudence of other route, engage in all possible planning to minimize harm if he did decide

he had to go through park.

This appears to be informal adjudication.Judicial Review of Agency Policy

Arbitrary & Capricious standard:

Embodies a lot of administrative law Its where the action is in Admin. Law the capacity of the court to review agency action

under the A&C standard

Vexing & unresolvedOverton Park: Courts first stab at arbitrary and capricious

Standard in statute: Cant build through park without determining if there is a feasible& prudent alternative

o Policy = all else being equal, parks should be preserved


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Without Congress statement it would always be cheaper to route ahighway through a park than an neighborhood

Congress policy changes incentive structure Seems like Secretary ignored directive choice to route through park was obvious Secs action: not a rule, so must be an order p.823-24: must consider relevant factors and whether it was a clear error of judgment

o Confusing: sounds like APA 706 fact-findingo Substance or process? Substance not about the science behind the decision, but

whether the decision was correct & sound

BUT Court goes on to say that process is importanto And remands case to district court to fill out the record

Although this inquiry into the facts is to be searching and careful, the ultimatestandard of review is a narrow one. The court is not empowered to substitute its

judgment for that of the agency.

o Substance, process, dont intrude on agencys domain, but review is searching covers all bases

Process for informal adjudication:o Not much in the APA, but agency must pay attention to the directive in the statute

there must be a record

Nova Scotia through the lens of Overton Park: Nova Scotia looks like proceduralist view of

arbitrary & capricious

Not 556, but 553 but process basedEx-Ante, what should Secretary have done? How should he have insulated himself?

Process:o Hold hearings, call meetings, go to Memphiso Record minutes

Seatbelts:

1965: 50K deaths per year 1966: Nat. Traffic & Motor Vehicle Safety Acto created NHTSA

Nader: car accidents are social issueo Cant be fixed by criminal or tort systems

Nixon: Pro-business


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Process: Informal Rulemaking: APA 553

Background:

Passive restraints: automatic seatbelt or airbag one or the other Proposed rule: Rescission of automatic passive restraint rule

o Justification: expectation was that 40% would put in airbags, but actually, almostevery mftr put in seatbelts and most people unbuckled seatbelts not a lot of

safety benefit

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.:

Rule = rescission of a ruleo Deregulation is still a decision rescission is judged by the same standard as

affirmative rule

Not restoring free market baseline like Reagan Administration argued baseline is status quo before the decision

Standard of review: Arbitrary & Capricious Agency screwed up with regards to Airbags decision not to modify rule to require

airbags only

o Process or substance? Process defect: should have re-run the numbers & safety tests knowing

that all mftrs would choose seatbelts

Process requires agency to consider all alternativesARS

4/11/11

Judicial Review of Agency Policy

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance

Air bags were patented in 1953, so not new technology at this point Part I of SCOTUS decision: agency failed to even consider momentarily the fact that

contrary to initial suppositions airbags were being deployed in only 1% of cars so maybe

they needed to rethink the principles that went into initial passage of rule and consider more

mandatory regime instead of recision

Part II:


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o Notice of final rule amending standard 208: impact analyses included as CBA asresult of EO 12,291

o Agency thinking: use rates of automatic belts same as manual belts - 2 studiesinitially used give us nothing so agency is left w/o anything to go on in way of clear

benefit of this rule, and with understanding that rule has clear cost (cost to industry orconsumer of installing belts) so recision is appropriate

o Court: Agency should get more data/science! Furthermore, our own science leads usto believe that path of least resistance (inertia of not undoing automatic belt) means

there will be greater use of seatbelts with automatic belts. Decision illustrates process

and substantive aspects of hard look:

Procedural hard look review: agency should have considered air bag issueinstead of just ignoring it (imposing requirement on agency to examine things

more, show court some work)

We also saw this in paper hearing requirement in Nova Scotia and insome of Overton Park pronouncements (requiring lower court to

develop a record)

Substantive hard look review: court sharing its own view on the problem interms of inertia issue

Title: Why is State Farm suing? Economic interest of insurance company in keeping peoplealive longer.

Arbitrary and capricious:o (1) Agency relied on factors Congress didnt intend it to consider:

Ex: airbags destroy cars aesthetic Link to Chevron: when agency acts outside parameters given by Congress,

court will not give deference

o (2) Entirely failed to consider an aspect of the problem (airbag)o (3) Explanation runs counter to evidence (seat belt usage)o (4) So implausible that it cant be ascribed to a difference in view or agency expertise

Rehnquist dissent: in world where science isnt conclusive and judgment callsare required, its ok forpolitics to make these decisions

FCC v. Fox

Can FCC change its rule to include fining networks for all swear words, both when theyreexpletives and referring to actual things?

Fox says agency hasnt explained change based on new circumstances (ex: new study aboutchildren being profoundly affected by even fleeting expletives).


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FCC says change is based on changed morals, first blow / slippery slope argument (if wedont come down hard, everyone will be using fleeting expletives), new technology (easier to

bleep things out now).

Can a new presidential administration be more dedicated to ridding society of dirty words? Ifscience not clear, give agency discretion? Let politics do its work in some places (liketransportation dept) but not when independent agency is in charge, like here.

Case offers review of Stevens view on delegation: for Scalia, whats delegated is alwaysexecutive power, but Stevens always clear that when Congress delegated its the power to

legislate

ARS and Reagan revolution: Reagan reinjects politics into regulatory state, so, like early onunder FDR, becomes impossible to think of regulation outside politics, and grappling with

arbitrary and capricious is happening w/in this context

Link to Chenery, though here, while FCC is willing to call out Fox, did not impose a finebased on sense it was unfair to fine because of rule that is just being created

Judicial Review of Questions of Law

Judicial review of questions of law should be more straightforward this is what courts do How much latitude should agencies be given?Pre-Chevron: NLRB v. Hearst

Statutory interpretation question: Whether newsboys are employees (consequence: if yes,they have right to bargain collectively with management)

NLRB, which administers the statute: newsboys are employees Should NLRBsinterpretation count? How much should it count?

SCOTUS: There is a difference bw pure questions of law and mixtures of law and fact. As topure questions of law (theoretical questions), court as opposed to agency is the decider.

o Pure question of law: Court does not pay attention to NLRB bc agency has noparticular expertise.

o Law and fact (actual circumstances of how to treat this particularemployer/employee): What NLRB thinks matters a lot where resolving issue requires

intense factual scrutiny.

Why do we organize administrative state in way such that courts think its cool to scrutinize

agency policy making but less so agency statutory interpretation?


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ARS

4/13/11

Pre-Chevron Jurisprudence on how courts deal w/ agency interpretation of statutes

Interpretation of the agencys organic statute, not just any statute NLRB v. Hearst has been largely displaced by Skidmore/Chevron isnt cited to anymore Skidmore is still in play where Chevron does not apply, can still look to SkidmoreSkidmore

Does waiting time = working time for purpose of overtime under Fair Labor Standards Act? Dept of Labor has set out guidelines Administrator: no pay for sleeping or eating, but yes for playing pool while sober (bc if not at

work, would be having beers too)

Pure questions of law:o Hearst: as to pure questions of law, no deference to agency court does de novo

review

o Here too, no deference on pure question of law: Is it really the case that workingtime can never encompass these sorts of activities? Answer: Statute on its face

does not preclude this.

Mixed law-fact question:o Hearst: limited role for courto Skidmore: Skidmore deference

Skidmore deference: Defer if explanation is thorough, consistent but thats not deference,that just makes sense! If ct agrees with agency when agency is persuasive, thats just agency

filing a brief and court saying theyre right. Couched in these terms, Skidmore deference

seems like a banality not really deference if youre right about what statute says, you

dont need deference.

When court defers to agency in Skidmore sense, the opinion has stare decisis precedentialvalue. End result is opinion that says the statute means X. Important consequence: Dept

of Labor is foreclosed from waking up tomorrow and deciding eating is also work Dept of

Labor cannot move from SCOTUSs interpretation.


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The Modern Framework: Chevron

Chevron

Ct is attempting to decide whether Clean Air Act, administered by EPA, means that pollutionshould be based on individual components or whole plant/bubble?

EPA decision on best way to read Clean Air Act: bubble concepto Bubble is Reagans idea industry likes, environmentalists dislike

Holding:o Step 1: Is statute clear? If so, thats what goes. To extent agency is in agreement with

clear unambiguous intent of Congress, agency prevails but court hasnt deferred to

agency. No deference at Step 1 straight up statutory interpretation case!

What does it mean for Congress to speak unambiguously? FN 9 Usetraditional statutory interpretation (text, purpose, legislative history, canons,

etc.).

o Step 2 [we get to Step 2 if statute is ambiguous under Step 1]: Is agencysinterpretation of the statute reasonable/plausible? If so, defer to agency.

Why are we deferring to agency? Arent judges typically considered expertson statutory interpretation?

Interpretation doesnt become binding law, unlike Skidmore. Deferencedoesnt make agencys interpretation law, it just recognizes that interpretation

falls within range of the plausible.

Scalia loves Chevron, but never gets to Step 2, because says statutes arealways clear!

Canonical theoretical interpretation of Chevron: Think of ambiguity as deliberate choice thatCongress makes were not being clear about X because we want you, agency experts, to

make the decision within a range of possible options. Ambiguity not a flaw in statute. Thus,

not an assault on role of judges to decide what law means (and thus not a counter-Marbury).

If were in Skidmore and boss asks what you can do, answer is here is what law says we canand cannot do. In post-Chevron world, memo outlines range of possibilities that fall within

acceptable bounds.


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ARS Notes 4.18.11

Overview:

deference takes 2 forms:

What gives Chevron its normative force?

expertise

Why do we even have an administrative state?

We need agencies to supply expertise. Chevron recognizes that expertise must bebrought to bear to interpret statutes

Agencies are not only experts at science, but at interpreting their own lawso Judges do not live and breathe agency statutes

Accountability

Agencies are accountable to executive branch

Political accountability subtext: shifting from Congress as politically accountableactor to agency as politically accountable actor

Newnesso Anxiety about evaluating administrative lawso Scalia thinks that everything has an answer at step 1

Coordination

If different courts decided same statutes differently, agencies would be guided poorly about what

they can/cant do

Ie cars are usually made to most stringent regulation (often CA)Administrative law is different from criminal law because different regulated entities

An AA can only have one uniform policy throughout the country, but criminal courtscan treat criminals differently

Scalia: its executive power being delegat

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