Admin Law

Front 1

Non-Delegation Doctrine

Back 1

- A boundary to what Congress can delegate to agencies
-Agency must be based on an intelligible principle
-Judiciary does not receive these challenges well

Front 2

Misretta

Back 2

Represents a signal that non-delegation will not be well received
-Deals with the Federal Sentencing Guidelines
-Blackmun writes the opinion

Front 3

Appropriations Clause

Back 3

-Is a semi-influential way for Congress to influence agencies or decrease their effectiveness, seemingly no limit on how specific these instructions can get(Case?)

Front 4

Statutory Overrides

Back 4

=Most straight-forward way for Congress to control agency discretion
-Override or amend the statute

Front 5

Legislative Vetoes

Back 5

-Makes agency discretion conditional on approval by Congress, House or Senate, or Legislative committees

Front 6

Kinds of Agency Employees

Back 6

-Mere Employees
-Inferior Officers (Subject to some Executive Removal)
-Officers (Removal by Executive)

Front 7

Congressional Regulation Enforcement Act

Back 7

-Statutory Override
-Complies with article I reqs
-Clunky, rarely used

Front 8

Morrison

Back 8

-Functionalist Opinion by Rehnquist
-Do the removal restrictions unduly hamper POTUS ability to exercise executive authority
-SCALIA DISSENT
-Formalist
-Unitary Executive

Front 9

ALJs

Back 9

Not inferior officers, just mere employees
-Make suggestions and recommendations, do not hand down final decisions
-Landry

Front 10

Buckley

Back 10

-When an employee is involved with agency decisions which require discretion and affect individual rights through rules or adjudications, considered an officer

Front 11

Encroachment v. Aggrandizement

Back 11

Encroachment: Congress limits POTUS power and doesn't give it to anyone, ultimately falls to the courts

Aggrandizement:
Congress limits POTUS power and takes it for themselves

Examples?

Front 12

Unitary Executive

Back 12

-Scalia likes the idea
-Any impingement on the executive power is unacceptable
-In terms of removal or otherwise

Front 13

OMB/OIRA

Back 13

-Way for executive to control all agencies
-Was abused after first instituted
-Subjects everything to a cost-benefit analysis, fight becomes about how you do it

Front 14

SCHOR Factors

Back 14

-Evaluate permissibility of Agency Adjud.
-Four Factors-
Power within the jurisdiction
Breadth of the jurisdiction
Origins/Importance of the adjudicated right
Purpose behind Congress' choice

Front 15

Adjudications vs. Rulemaking

Back 15

Londoner (Adjudication)
-Fairly small group of people are affected
-Ruling depends on their facts
-Triggers US Con Rights (DP)
Bi-Metallic
-General applicability, prospective outlook
-Citizens do not have a right to participate in the legislative process

Front 16

Sources of Law Regulating Agency Procedure

Back 16

US Constitution
APA
Organic Statutes
Agency Self-Regs
Court Decisions: Sup. Ct., DC

Front 17

APA Main Subjects

Back 17

Disclosure (552-552(b))
Availability/Timing/Form of Jud. Rev. (701-705)
Scope of Rev (706)
Procedural Reqs (553.556,557)

Front 18

706(a)

Back 18

Arbitrary and Capricious

Catch All

Used to review informal adjudications/rulemakings as well as all other actions

Eventually spawns hard look rev (see overton park)

Front 19

706(c)

Back 19

-In Excess of Statutory Jurisdiction
-Typically comes down to Chevron Analysis
-Touchy Separation of Powers situation, Congress writes the statutes, Courts review them
-Chevron Step II is the edge of the world here, could stir some shit up

Front 20

706(d)

Back 20

-Without observance of procedure required by law

Pre-FECR, pretty tough on agencies, having to do a lot of formal rulemaking

Front 21

706(e)

Back 21

-Substantial Evidence
-Only applies to Formal Proceedings
-Anything where a record is produced
-Addresses pure questions of fact
-Real deferential standard, see Universal Camera

Front 22

Rulemaking (APA)

Back 22

551(4)
Rulemaking is as “an agency process for formulating, amending, or repealing a rule
Rules are a “whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.”

Front 23

Adjudications (APA)

Back 23

551(6-7)
'Adjudication' means the agency process for the formulation of an order
'Order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing

Front 24

556,557 Rulemaking

Back 24

-Some type of hearing is required
-Central Component is Record Creation
-Enables effective judicial review
-Encourages an equitable outcome by giving a chance to be heard
-FECR coins magic phrase "hearing on the record"

Front 25

553

Back 25

-Often Referred to as Notice & Comment Rulemaking

-3 Steps, debate over how much each should entail, see Vermont Yankee

-Notice, published in Federal Register of a proposed rule of issue to regulate

-Comment Period: People and interested parties can submit concerns and qualms about the rule, usually in written form

-Issue the rule, provide a general statement of basis and purpose

Front 26

554

Back 26

Applies to Formal Adjudication
Creation of a record
Looks pretty much like a jury trial
However, Agencies can write some of their own rules of evidence
No definite triggering language

Front 27

Informal Adjudications

Back 27

No APA statute
Some constitutional implications: see Londoner

Front 28

Seminal Rock Doctrine

Back 28

Old Standard, City of West Chicago
When courts review an agency's interpretation of their own statute
Agency interpretation is controlling unless clearly erroneous
“No clear intention that Congress intended to trigger formal adjudication process here based

Front 29

Seacoast Protection League

Back 29

Adjudication must be a full one unless the statute specifies otherwise

Front 30

Hybrid Rulemaking

Back 30

See D.C. Circuit Vermont Yankee
Increased Process under N&C Rulemaking
Notice, Portland Cement Doctrine (Requires any science in the notice include the methodology, survives after Sup. Ct.)
Proceeding, Whatever the court believes is required, oral challenges, etc.
General Purpose and Statement, Needs to enable judicial review, respond to meaningful comments (survives after the Sup. Ct. Decision)

Front 31

Logical Outgrowth Doctrine (N&C Rulemaking)

Back 31

-Connecticut Light and Power Co. v. NRC
-If a final rule is logical outgrowth of the original noticed rule, it merely has responded to the comment period and is acceptable
-Rule must be close enough to encourage meaningful participation and reflect reasoned decision making

Front 32

Exceptions to N&C Requirements

Back 32

-Interpretive Statements
-Policy Statements
-Agency rules relating to military, agency administration

Front 33

Citizens to Preserve Overton Park v. Volpe

Back 33

DOT decides to build a highway through a park
Statutes require the administrator jump through some hoops
Verify there are no “feasible and alternative routes”
Engage in all possible planning to minimize harm to the park

Beginning of the Hard-Look Review

Front 34

ADAPSO v. Board of Governors of the Federal Reserve

Back 34

SCALIA OPINION

Deals with finding of facts arising from an informal proceeding

APA indicates that 706(e) “Arbitrary and Capricious” is the standard of review

Operates as a catchall, providing courts with a basis on which to conduct review of minor agency actions in case of abuse or inequity

Pretty deferential standard for the Agency

Front 35

Universal Camera v. NLRB

Back 35

FRANKFURTER OPINION
-Substantial Evidence Review
-Requires a balance of the positive and negative evidence on the record
-Cannot examine the positive evidence in isolation
-Standard of Review can turn into an infinite cycle of reinterpretation

Front 36

Skidmore v. Swift & Co.

Back 36

JACKSON OPINION

Looks at it as a question of application

The agency has not exercised any real statutory authority here

Thus, views of the administrator should play into the court decision

However, is merely persuasive

Front 37

Chevron Doctrine 3 Part Frame Work

Back 37

(1) Has Congress spoken directly on the issue/ Is the statute ambiguous?

(0) Has the agency exercised their legal authority to promulgate the decision?
If not, skidmore persusasion

(2) Is the agency's interpretation reasonable?
(Statutory fit vs. Reasoning Process)
-Statutory fit is a bald assertion by the judiciary

Front 38

AT&T v. Iowa Communications

Back 38

SCALIA OPINION
-One of the only decisions where a decision gets killed at step II
-Statutory Fit analysis under CV II

Front 39

State Farm

Back 39

JUSTICE WHITE OPINION
-Deals with seat belt regs
-Post Vermont Yankee

-Justifies the hard look review conducted by lower courts