A Short & Happy Guide to Administrative Law
Author:
Araiza, William D.
Edition:
1st
Copyright Date:
2018
39 chapters
have results for a short and happy guide to administrative law
Introduction 1 24 results (showing 5 best matches)
- read the statute and the cases
- Second, a note about the organization of this Guide, and how it might relate to the organization of your course. This Guide follows a very conventional organizational sequence. But it’s not the only one professors use when they teach. There are lots of ways to teach administrative law, and you should be aware of how the organization of your course’s syllabus might differ from the organization of this Guide. This Guide tries to make that job easier, by providing intuitive and self-explanatory Part and Chapter headings.
- But this is still a lot—an awful lot. Administrative law, like the administrative state, is a sprawling topic. Most classes begin (as does this Guide) by considering the constitutional status of the administrative state. This material may seem theoretical, but it’s very important. The administrative state sits in an awkward position in our federal governmental system (and, indeed, the system of each state government as well). As you probably have already learned, the federal system contemplates a legislature that makes law, an executive that enforces the law, and a judiciary that interprets the law and applies it in particular cases. Agencies, however, do all three of these jobs. As you’ll see in Part Two of this Guide, they promulgate regulations that look a lot like statutes. As you’ll see in Part Three, they also adjudicate violations of the federal laws they’re empowered to administer. They also prosecute those violations.
- This Guide—and probably the course you’re taking—focuses on federal administrative law. That’s not because federal administrative law is the only game in town. Far from it: as the zoning commission example above makes clear, states and even sub-units of states have their own set of administrative procedures. But most introductory courses in administrative law focus on federal law, just like most introductory civil procedure classes focus on federal civil procedure and most introductory evidence classes focus on the Federal Rules of Evidence. In the case of administrative law, that’s because, often, the most developed jurisprudence of administrative law exists at the federal level. But the good news is that the principles of administrative law you’ll learn in your federal law class generally transfer, if imprecisely, to most state law systems. To be sure, variations exist between states and the federal government and among the states themselves. But the basics are just that—pretty...and
- Because administrative law permeates government action (since most of such action is in fact performed by agencies), understanding administrative law is crucial. Whether you want to practice in environmental, securities, immigration, or almost any other area of law, you need to understand the processes governing agency action. Even seemingly common law-governed areas require an understanding of administrative law. For example, if you want to be a real estate lawyer, you’ll have to deal with land-use regulations promulgated by zoning commissions, and you’ll have to appear in front of such commissions for variances (which in some ways are just another type of administrative adjudication).
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Concluding Thoughts and Advice 237 9 results (showing 5 best matches)
- Administrative law is complex, as you’ve no doubt realized by this point. Even this
- In a basic way, administrative law is about
- Article III also has a lot to say about administrative law. Article III-based concerns drive much of standing doctrine (Chapter 17) and at least some of the timing issues you studied in Chapter 19. More generally, the institutional role of federal courts as guarantors of government legality influences the presumption of reviewability that you studied in Chapter 16.
- Of course, these simple observations of how the material fits together along different axes don’t make that material any easier to grasp. It’s still hard. But take a moment every so often—and in particular, toward the end of the semester when you’re trying to put everything together—and try to see not just the individual trees but the entire forest. If you do that, then you will start mastering not just the details, but the overall thrust, of this incredibly important part of American law. I hope this Guide has helped at least a little in your quest for that mastery.
- Still, there are ways to cut through some of the complexity. Now that you’ve worked your way through the semester and through this Guide, look back and take a broader perspective on what you’ve learned.
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Copyright Page 3 results
- a short & happy guide
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © 2018 LEG, Inc. d/b/a West Academic
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Title Page 3 results
Chapter 5. An Introduction to Rulemaking 39 20 results (showing 5 best matches)
- The short version:
- The Administrative Procedure Act (APA) defines the products of both of these processes. The APA defines a “rule” (the end product of a rulemaking) to include “the 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.” 5 U.S.C. § 551(4). It defines “order” (the end product of an adjudication) as “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.” 5 U.S.C. § 551(6). The definition of “rule” largely tracks our intuitive understandings of legislation (a generally applicable rule of conduct with mainly prospective application), with the important difference that an administrative “rule” can in fact have not “general,” but “particular” applicability. For example, when an agency sets the rates a particular company can charge, that action is considered a rulemaking, even though it...
- are tangled, but the underlying lesson is straightforward: the line between adjudication and rulemaking is not as clearly demarcated as our initial intuition might suggest. The rest of this Guide will assume that we know what we’re talking about when we describe an agency action as a rulemaking or an adjudication. But it’s important to realize that that assumption may not always be warranted—or at least that you need to keep that ambiguity in the back of your mind.
- did, however, acknowledge limitations on this discretion. First, it observed (without much elaboration) that such discretion might be abused. Second, it noted that a decision to proceed by adjudication might lead to the imposition of retroactive liability that would be extremely unfair. It cautioned, though, that such unfairness would have to be balanced against “the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.” If that “mischief” outweighed the unfairness to the regulated party of imposing retroactive liability, then, it concluded, the law did not condemn such liability.
- Once we have a basic sense of the difference between rulemaking and adjudication, the next question concerns the leeway agencies enjoy to proceed by one or the other of these vehicles. To return to our legislation/adjudication analogy, rulemaking is usually (1) generally applicable and (2) prospective, while adjudication is usually (1) applicable only to one party and (2) retrospective. To over-simplify, consider a situation where the agency becomes responsible for implementing a newly-enacted statute. It can do so either by promulgating regulations and only after that point bringing enforcement actions that allege a violation of the statute and/or those regulations, or it can move directly to bringing enforcement actions alleging violations only of the statute itself.
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Chapter 6. Formal and Informal Rulemaking 47 43 results (showing 5 best matches)
- The previous discussion of the agency’s discretion to choose between formal and informal rulemaking should not lead you to think that the only possible sets of procedures for rulemaking are the “formal” and “informal” rulemaking procedures the APA sets out. As we’ve noted several times, the APA provides only the default rules that apply if Congress has not provided more specific procedures for an agency’s administration of a particular statute. Sometimes Congress does indeed provide a specific set of procedures for a given agency to follow when administering a particular program. Often, those procedures take the form of a combination of the APA’s formal and informal procedures. Such procedures are called “hybrid” procedures. Of course, this short guide focusing on general principles of federal administrative law cannot provide an exhaustive discussion of every substantive statute that provides for such hybrid procedures. For our purposes, the most important thing to take away is...
- Other problems have also arisen with so-called “electronic rulemaking” or “e-rulemaking.” For example, it’s been suggested that many such “average citizen” comments are often generated by computer programs called “bots” that take over individual computers and individual computer accounts (and thus identities) and send (many) “fake” comments to agencies. But leave aside these and other similarly exotic problems. Focus instead on the fundamentals. Does electronic rulemaking change the fundamental nature of the administrative process, by providing essentially no-cost access to that process? Perhaps in an earlier era an agency could reason that anyone who was willing to go through the trouble of locating a proposed rule and sending in a comment on it was serious enough, committed enough, and knowledgeable enough to provide useful information. Perhaps that assumption no longer holds. Should that change how the agency approaches comments? As of today, there is no clear answer to this...
- The short version:
- is important because it makes clear that courts may not go beyond the APA (or the agency’s organic statute) when evaluating whether the agency provided adequate procedures to govern a rulemaking process. Nevertheless, note that cases such as , which purported to be interpretations of the APA, remain good law. You may wish to consider whether the kind of unpredictability Justice Rehnquist worried about in continues to exist, with the unpredictability now centering on how aggressively a court will read the APA’s rulemaking provisions. Indeed, even after scholars and judges continue to argue about whether the informal notice-and-comment rulemaking process has become “ossified”—that is, excessively slowed down and weighted down by procedural requirements.
- As you might imagine, such negotiated processes might be more successful in some contexts than in others. For example, it might be harder for interested parties to reach a negotiated consensus when they have hard-and-fast and diametrically opposed positions, or where negotiating power is lopsided, such that the weaker party feels it is not getting a fair deal, or when one side or the other feels like the law is clearly on their side such that the chances for victory in litigation are high.
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Chapter 22. Judicial Review of Agency Legal Interpretations 191 45 results (showing 5 best matches)
- Judicial review of how an agency reads its organic statute and other legal materials constitutes an important, but often confusing, part of administrative law. This chapter focuses mainly on agencies’ interpretations of statutes, and then concludes with a shorter discussion of agencies’ interpretations of their own regulations.
- This court-centered nature of the interpretive task in turn suggests that there is, in fact, only one “correct” interpretation of the statute. While that idea may seem obvious to you, when we get to deference we’ll encounter the concept that a statute can in fact have more than one “correct” interpretation. As we’ll see, this difference will constitute a major difference between and deference, with important implications for administrative law.
- was decided in 1984. For nearly twenty years thereafter it was unclear whether a court would apply anytime an agency interpreted a statute, or whether another deference standard would apply in some circumstances. The Court decided this issue in 2001, in dealt with an interpretation of federal tariff laws by the U.S. Customs Service, the agency that regulates the tariffs to be paid on imported goods. The tariff laws are very detailed—they essentially list every tariff category for every type of product that might be imported, and note the tariff federal law requires to be paid on each such product. In the agency decided that “day runners”—bound notebooks used for jotting down appointments and short notes—fell under one statutory tariff category as opposed to another.
- The short version:
- and —introduced complexities into administrative law. First, as already noted, it necessarily meant that now there was a new, “Step zero” question to ask before performing and
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Chapter 17. Standing and Sovereign Immunity 149 30 results (showing 5 best matches)
- You may well have studied standing in Constitutional Law or elsewhere in law school before coming into Administrative Law. Nevertheless, this chapter will discuss both the constitutional law aspects of standing and particular standing requirements that apply to challenges to agency action. Indeed, even the Article III standing requirements you might have studied earlier raise special problems when applied in administrative law. This chapter concludes with a quick look at sovereign immunity issues as they relate to administrative law.
- : One important component of standing law for administrative law purposes speaks to when an association can sue on behalf of its members. (Of course, an association can always sue on its own behalf: if an organization is defrauded or otherwise injured it can always sue to recover its own losses. We’re speaking instead of an association suing on behalf of its members.) This is an important branch of standing law for administrative law purposes, because, as you may have noticed, many administrative law plaintiffs are associations—either industry groups (
- In contrast to standing, federal sovereign immunity poses only relatively simple issues for most students of administrative law. The text of Section 702 makes clear that sovereign immunity does not stand in the way of plaintiffs seeking to sue an agency for injunctive relief, such as an order enjoining an agency from enforcing a regulation (or, if the agency has failed to act, say, by failing to promulgate a regulation within a statutorily-mandated period, an order compelling the agency to promulgate that regulation). “Money damages,” however, are not available under Section 702’s waiver of sovereign immunity. (Again, if Congress chooses, it may waive that immunity in the organic statute.) But note one thing: the bar on “money damages” doesn’t mean that all claims that involve money are barred by sovereign immunity. For example, if a statute requires that a particular amount be paid to someone (say, a medical provider under the federal Medicare program), then a plaintiff could seek
- In later cases, the Court has had difficulty explaining how imminent an injury had to be before it was considered “imminent” for Article III injury purposes. For example, in , 568 U.S. 398 (2013), the Court rejected the alleged injury on the ground that it neither currently existed nor was “certainly impending.” In a footnote, however, it acknowledged that in other cases the Court did not require such certainty before a future injury would count for Article III purposes. Instead, in other cases it had merely required that there be a “substantial risk” that the harm will occur. On reflection, this acknowledgement makes sense for administrative law, since many agency actions—for example, to promulgate a health regulation that is too lenient—may not be said to cause an injury that is “certainly impending.” Rather, such regulations are often designed to do exactly what the Court’s alternative allows as standing—to mitigate a “substantial risk” of harm.
- The short version:
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- Judicial review is a crucial part of administrative law. The legitimacy of agency action turns to a large degree on the fact that a federal court is always available to review whether the agency has followed the appropriate procedures, correctly found the facts and interpreted its organic statute, and made reasonable policy decisions. Thus, a critical part of administrative law consists of determining whether and on what conditions a plaintiff may seek judicial review of an agency’s action.
- The sequence of these parts tracks how the APA deals with them, in Chapter 7 of that statute. Thus, this Part of the Guide begins with a quick walk-through of Chapter 7, to explain its architecture and to note how it deals, in sequence, with each of the issues discussed in the previous paragraph.
- This Part of the Guide considers these issues. After the following introductory chapter, Chapter 16 considers whether such review is available at all. Chapter 17 then discusses the parties to the action, both by explaining when a plaintiff has standing to sue an agency and how the doctrine of sovereign immunity impacts the ability to sue an agency. Chapter 18 discusses what form that sort of lawsuit can take, and issues surrounding federal court jurisdiction. Finally, Chapter 19 explains the doctrines governing the timing of such suits.
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Chapter 1. The Non-Delegation Doctrine 13 9 results (showing 5 best matches)
- Despite this theory and these justifications for a non-delegation principle, it was clear from the start of the Republic that some decisions that could be described as “legislative” had to be delegated to administrative officials. Starting in the early nineteenth century, the Supreme Court uniformly upheld such delegations, using a variety of doctrinal formulas to guide the Court’s decision. In the 1928 case of , 276 U.S. 394 (1928), the Court announced that the relevant question in non-delegation cases was whether Congress, in the statute authorizing the agency action, had articulated “an intelligible principle” that could serve to guide the agency’s action. Ever since 1928, the so-called “intelligible principle” doctrine has governed non-delegation challenges.
- Many administrative law courses begin their examination of the constitutional status of administrative agencies with the non-delegation doctrine. The non-delegation doctrine considers what limits, if any, the Constitution places on Congress’s power to give agencies power to promulgate regulations. The theoretical foundations of the doctrine rest in the first sentence of Article I of the Constitution: “All legislative powers herein granted shall be vested in a Congress of the United States . . . .” The “herein granted” part refers to the rest of Article I (and, ultimately, to other parts of the Constitution, such as Congress’s power to enforce the Fourteenth Amendment). Thus, that phrase encompasses issues you may have studied in Constitutional Law, such as Congress’s power to regulate interstate commerce. For our purposes, the key part of this sentence is the so-called “vesting” clause, which “vests” all the legislative powers granted to the federal government in the newly-created...
- The short version:
- The Court’s refusal to engage in stringent review of legislation for non-delegation violations probably stems from the difficulty of determining when legitimate congressional delegation of authority to agencies crosses the line into a non-delegation violation. Given that such congressional delegation is undoubtedly necessary given the complexity of modern regulatory problems, a more stringent application of the non-delegation doctrine would embroil the Court in subjective line-drawing between appropriate and over-broad delegations. It is also possible that the enactment of the Administrative Procedure Act (APA) in 1946, which instituted processes for public input into agency rulemaking, mitigated the most serious concerns about agency lawmaking being conducted without public participation.
- The Court has invoked the non-delegation doctrine to strike down legislation only twice in our history, both times in 1935, and both times dealing with the same statute. The statute in question was the National Industrial Recovery Act (NIRA), one of the first and, at the time, most important laws enacted by the Congress that swept into power with President Franklin Roosevelt and proceeded to enact much of President Roosevelt’s “New Deal.” , 293 U.S. 388 (1935), dealt with Section 9(c) of the NIRA, which authorized the President to prohibit the interstate or foreign shipment of oil that was extracted in violation of any state law production quota or restriction. Examining that section, as well as the rest of the statute, an eight-justice majority could not find any standard governing the President’s authority to restrict such oil shipments. Writing for the majority, Chief Justice Hughes wrote, “As to the transportation of oil production in excess of state permission, the Congress has...
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Chapter 23. Judicial Review of Agency Policy-Making 209 26 results (showing 5 best matches)
- In addition to finding facts and interpreting law, a critical function that agencies perform when they act is making policy. Unlike fact-finding and law-interpreting, though, policy-making is not an obvious concept. For administrative law purposes, policy-making can be understood as combining facts and law to reach a regulatory result. For example, an agency tasked with workplace safety might find the fact that a particular machine is dangerous to use and costs very little to replace. It might then interpret its organic statute as authorizing it to prohibit “unreasonably dangerous workplace conditions.” Filtering the facts that it finds through the law that it interprets, the agency might then conclude, as a policy matter, to promulgate a regulation banning the use of that machine.
- The short version:
- Before considering these requirements in more detail, stop and think about what these requirements suggest. In addition to finding the relevant facts and understanding its mandate under the law, the agency must now actually apply that law that it (presumably) correctly understands—that is, it must “consider the relevant [statutory] factors”—and, second, it has to do so reasonably—that is, it may not make “a clear error of judgment.” Leaving fact-finding aside for the moment, one can thus combine the law-interpreting and policy-making functions into a three-step process, which requires the agency (1) to interpret the statute correctly, (2) do what that correct interpretation requires it to do, and (3) be reasonable in doing so. But keep in mind that the first step of this
- Standards of review aside, it’s important to consider what the agency is doing when it engages in policy-making. As one might expect, the nature of that policy-making function influences what judicial review of that function looks like. For that reason, consider what an agency is doing when it makes policy, as in the simple example we used to start this chapter. An agency tasked with regulating a topic such as workplace safety has to learn the facts about that subject—things like, which machines and practices are dangerous, and how expensive and difficult it would be to require industry to improve conditions. The agency also needs to understand what it is required, authorized, and not allowed to do under its organic statute. Most relevantly for our current purposes, it would have to put those facts and that law together to reach a regulatory result—as in our example, banning a particular machine.
- Recall from Chapter 20’s brief tour of Section 706 that that section authorizes courts to mandate or set aside agency action in six situations. Recall also that, of those six reasons the court can give for its decision, two of them—the “substantial evidence” requirement and the “arbitrary and capricious” requirement—focus on agency action in general, rather than on particular types of actions (such as law interpretations or procedural actions the agency takes). These two default standards apply to, among other things, policy-making. Substantial evidence applies when that policy-making is the result of a formal process. The arbitrary and capricious standard applies when policy-making is the result of an informal process, such as an informal notice-and-comment rulemaking. Recall Chapter 21’s discussion of the debate among courts about whether these two standards require different levels of judicial scrutiny of agency action, or, instead, whether those two different standards simply...
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Chapter 16. Reviewability 139 27 results (showing 5 best matches)
- Before we leave this exception to Section 701, there’s one more important point to be made. Recall that this exception refers to “agency action committed to agency discretion by law.” So far, we’ve been focused on the latter part of this phrase, ignoring the “agency action” phrase with which it starts. But don’t think that “agency action” is an obvious concept. It may seem like it is, but, like much in administrative law, it’s a little more complicated than that. This is an important issue in administrative law; when you read Chapter 7 of the APA you’ll encounter several references to that term. Understanding it is thus important to understanding when judicial review is available, and when it’s not.
- Indeed, in a post- illustrated that the “no law to apply” test was part of the correct approach to the “agency action committed to agency discretion by law” provision in Section 701, but was not the full understanding of that provision. He argued that that provision of Section 701 incorporated pre-APA judge-made administrative law, which inquired, just like did, into the general suitability of judicial review of particular agency decisions. According to Justice Scalia, this pre-APA “administrative common law” was what the APA drafters meant when they spoke of “law,” rather than “statutes,” in Section 701(a)(2). It also explained how courts could review some agency actions for “abuse of discretion” while also acknowledging that some agency decisions were unreviewable exactly because they were “committed to agency discretion.” Again, though, while Justice Scalia’s more wide-ranging approach to “agency action committed to agency discretion by law” may be the one that is actually...
- The short version:
- Citizens to Preserve Overton Park v. Volpe
- The Court concluded that agency decisions declining to begin investigations or enforcement actions were presumptively unreviewable, as committed to the agency’s discretion. In so concluding, the Court purported to apply the “no law to apply” standard. However, its analysis went a good deal beyond the obvious understanding of that term. For example, it noted the inherently discretionary nature of an agency’s decisions to prioritize some potential regulatory violations over others when it came to allocating enforcement resources. It also noted how those decisions were analogous to law enforcement decisions more generally, decisions that, at the national level, were committed to the President and his Article II apparatus. The Court also observed that decisions not to enforce did not involve the agency bringing its coercive power to bear against a citizen, and thus carried less demand for judicial review.
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Part two. The Rulemaking Process 1 result
- Rulemaking is the bread-and-butter of administrative law. Regulations promulgated by federal administrative agencies touch every aspect of Americans’ lives. It is probably a fair statement that, with the exception of criminal law, the legal duties Americans owe and legal rights Americans have come more directly from regulations than from statutes. For these reasons, it is important to understand the process by which such regulations are developed and ultimately promulgated. Chapter 5 provides an introduction to rulemaking. Chapter 6 sets forth the processes agencies are required to use when they engage in rulemaking. Chapter 7 explains the situations in which agencies are exempt from those processes. Chapter 8 considers issues of bias and prejudgment in rulemaking. Chapter 9 sets forth executive branch initiatives designed to increase presidential control over rulemaking.
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Chapter 13. Due Process 99 40 results (showing 5 best matches)
- In administrative law, the procedural aspect of the Due Process Clause asks not about whether government is in depriving an individual of the right in question, but instead about whether it has followed constitutionally adequate in doing so. This is a particularly important question in administrative law, because government acts in many ways that infringe on interests protected by the due process guarantee. (As you’ll see shortly, many more interests enjoy meaningful protection under this procedural guarantee than under the substantive provisions of the Due Process Clause.) Our examination of these procedural aspects will proceed by considering three questions, each of which will provide the foundation for the next question:
- and . Both of these cases dealt with claims by university professors that they had property interests in a continuation of their faculty positions at state universities. In , the Court rejected the claim, because the professor had been hired on a one-year contract that gave him no reasonable expectation that he would be rehired. Thus, the state had given him no reason to expect that he would be able to continue in that position. By contrast, in , the Court acknowledged the possibility that the professor in that case might have had a property interest in his job continuing. In particular, it noted that the university, even while not maintaining a formal tenure system, had distributed a faculty handbook that indicated that professors who were doing a good job and happy in their position could expect to continue to be employed. In addition, it raised the possibility that the university’s normal course of dealing with faculty was to retain them for extended periods of time. Thus, even...a
- As set forth in Chapter 10 (see Table 1 of that Chapter), the APA says relatively little about the procedures agencies must follow when they engage in informal adjudication. Instead the Due Process Clauses of the Constitution provide the most important generally-applicable procedural guidelines for informal adjudication. (The caveat “generally applicable” is included because, as always, the agency’s organic statute can prescribe particular procedures for adjudications performed under that particular regulatory program.) The Fifth and Fourteenth Amendments to the Constitution both contain guarantees that, respectively, neither the Federal Government nor any state shall “deprive any person of life, liberty, or property without due process of law.” You probably studied the Due Process Clauses of both of these amendments in Constitutional Law. At that point, you may have studied only their substantive aspects—that is, their guarantee of particular substantive rights, such as the right to
- The short version:
- For the most part, the law that can potentially provide that interest is defined broadly, to include any state law (for Fourteenth Amendment Due Process Clause claims) and any federal law (for Fifth Amendment Due Process Clause claims). But there is one important exception to this rule. The federal Constitution (whether the Fifth or Fourteenth Amendment) does not create property interests. Such an interest can be found anywhere else in law—including anywhere else in federal law—but not in either Due Process Clause. By contrast, liberty can be found in the Due Process Clause. Recall from your Constitutional Law class that the Fifth and Fourteenth Amendments are the source of the rights you studied when you studied substantive due process—the (old) right to contract, the right to privacy, the right to an abortion, etc. But other than this exception, the process for finding liberty and property interests is the same, and follows the and
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Chapter 15. The APA and the Availability of Judicial Review 131 21 results (showing 5 best matches)
- The second sentence of Section 702 deals with the government-defendant. For our purposes, it waives federal sovereign immunity to the extent the lawsuit does not seek damages. Thus, it allows lawsuits in which the plaintiff requests, for example, a declaratory judgment or, even more relevantly to administrative law, an injunction against the agency taking a particular action (for example, enforcing a regulation that the court finds illegal). As you can imagine, these are important types of cases in administrative law, as they seek to restrain an agency from taking a given action.
- The short version:
- Chapter 7 of the APA, 5 U.S.C. §§ 701–706, deals with judicial review. Section 706 considers the powers courts have once they reach the merits of a case challenging agency action. For that reason, we will defer consideration of that section until Part Five of this Guide. But the other sections are relevant to the availability of judicial review. Because it’s important to understand how these provisions build on each other to create a coherent picture of the availability of judicial review under the APA, this chapter provides a very quick overview of Sections 701 through 705. Each of the topics discussed here will be treated in more detail in subsequent chapters. For now, just try to get a sense of how the APA proceeds methodically to set forth a plaintiff’s ability to seek judicial review.
- There is another important timing issue that Chapter 19 will discuss. In addition to “finality” and “exhaustion,” courts also have to satisfy themselves that a challenge to agency action is “ripe.” Ripeness is a judge-made doctrine that, as you might guess from the name, speaks to when the case in question is “ripe”—that is, when it’s ready for a court to decide. As we’ll see in Chapter 19, ripeness doctrine is a mixture of Article III concerns—that is, concerns about whether the lawsuit prevents a “case or controversy”—and so-called “prudential” concerns—that is, concerns that speak more to good judicial common sense than to constitutional concerns. For now, the important thing to note is that even though an action may be final, and even though there may be no need for the plaintiff to exhaust her agency remedies, a court may still decide that the issue isn’t ripe. Indeed, to the extent a decision about non-ripeness is based on constitutional concerns, Congress is not able to...
- “The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.”
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Chapter 24. Agency Authority to Compel Production of Information 221 15 results (showing 5 best matches)
- Of course, the Fourth Amendment is addressed to more than document production requests. It is also—perhaps even primarily—addressed to physical intrusions and searches by government agents. Such intrusions and searches can apply in administrative law, as well: for example, an agency regulating food safety may wish to inspect or even search a food production facility to ensure that it is clean and unlikely to produce tainted food.
- The short version:
- Aside from its obvious unsteadiness, this jurisprudence reflects the difficult balancing the Court feels compelled to do in the context of administrative searches. On the one hand, such searches are deeply problematic as a matter of constitutional law, and, as the Court suggested in , it would be ironic if the only persons who could count on the Fourth Amendment’s protections are those suspected of criminal wrongdoing, as opposed to those suspected of mere civil infractions. On the other hand, there is good reason to allow agencies a great deal of latitude in carrying out their complex
- The broad power described above might make you wonder whether this power implicates the Fourth Amendment, which bans “unreasonable searches and seizures” and requires “probable cause” in order for the government to obtain a search warrant. When an agency issues an administrative subpoena for business records, the Supreme Court has held that the Fourth Amendment imposes fewer obstacles than in the traditional criminal context, given the long history of legislative provisions requiring corporations to maintain records open to public and government scrutiny. , 327 U.S. 186 (1946). The theory, then, is that the private party has relatively weaker privacy interests in this context and the government, through its statutory obligations to implement whatever regulatory scheme is prompting the subpoena, has strong interests. Indeed, four years after , the Court analogized an agency’s investigative power to that of a grand jury, and stated that an agency otherwise acting properly can demand...
- The Supreme Court’s jurisprudence in this area has followed an unsteady path. In , 359 U.S. 360 (1959), the Court held that a health inspector did not need a search warrant to enter a house in search of the source of a rodent infestation in the neighborhood, given the historic acceptance of such searches and the strong public interest in sanitation. But in , 387 U.S. 523 (1967) and , 387 U.S. 541 (1967), the Court rejected this view, and imposed a general warrant requirement for administrative searches. However, the Court in cautioned that such warrants did not need to satisfy the traditional legal standard of probable cause. The Court in (which dealt with a search of a commercial warehouse) also left open the possibility that warrants would not be required if the business in question required a license which in turn was granted on the condition of the applicant’s consent to warrantless searches. It applied this idea in two cases, ...U.S. 72 (1970) (dealing with a licensed...
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Chapter 14. Ex Parte Contacts and Bias in Adjudication 115 40 results (showing 5 best matches)
- Still, there is a degree of ambiguity in this provision. For example, presumably the ALJ should be able to consult a law clerk or administrative assistant about “a fact in issue”—for example, by asking his law clerk her opinion about a factual question in the case or asking the assistant for help in locating files relevant to such a fact. Probably the best reading of this provision is that the office of the ALJ should be understood as a unit, such that this type of consultation would not run afoul of this section. There should probably be even less of a problem if the ALJ pulls off his shelf a book written by an agency employee that is relevant to such a fact, despite the argument that, in effect, he would be “consult[ing]” the author of the work on that fact. Despite these common-sense observations, the relative sparseness of the case law leaves these questions not formally and conclusively resolved.
- One context in which this issue has arisen is when an agency plays different roles. For example, in , 421 U.S. 35 (1975), a state medical agency was accused of having violated the Fourteenth Amendment due process rights of a doctor who was the target of administrative investigation and adjudicative proceedings. The doctor/plaintiff alleged that due process was necessarily violated when the same agency both performed the preliminary investigation that caused the adjudication to be pursued, and also presided over the ensuing adjudication. The theory, of course, was that the initial decision that there was sufficient evidence to proceed to a hearing had biased the agency in favor of a finding that, indeed, the doctor was guilty of the charges alleged. The doctor thus argued that due process was violated whenever an agency combined investigatory, prosecutorial, and adjudicative functions.
- In deciding these cases, courts have distinguished between the types of facts that have been alleged to be prejudged. If the facts allegedly being prejudged are “legislative” or “social” facts—that is, facts about the world generally, rather than about the particular subject of the adjudication—then such alleged prejudgment is hard to challenge. In such a case the plaintiff has to show that the agency adjudicator had an “irrevocably closed mind.” For example, in , 333 U.S. 683 (1948), cement manufacturers accused by the agency of illegal pricing practices complained that the agency had prejudged the issue because commissioners of the agency had earlier testified to Congress that they believed that those practices did indeed violate the law, in the context of a different industry. The Court rejected the challenge, remarking that to rule otherwise would defeat Congress’s purpose in creating an agency that would both inform Congress about industry conditions and adjudicate violations...
- The short version:
- By contrast, courts have taken a more plaintiff-friendly approach when considering claims that the adjudicator has prejudged facts particular to the defendant. The two leading cases here both deal with the same agency, and, indeed, the same agency head. In , 425 F.2d 583 (D.C. Cir. 1970), a commissioner of the FTC made a speech that seemed to speak to the precise factual allegations made against a party in an FTC adjudication which was pending in front of the commission (including this particular commissioner). The court held that this violated the rule that asked “whether a disinterested observer may conclude that the agency has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” Several years earlier the court had decided a similar case, involving the exact same FTC commissioner, applying the same test, and again finding a violation of due process.
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- There is a lot about the structure of federal administrative agencies (what is sometimes referred to as “the administrative state”) that doesn’t easily fit within our intuitions about the type of government established by the Constitution in 1787. Most obviously, agencies aren’t even mentioned in the Constitution, and are thus not authorized to wield any of the power “We the People” “vested” in Congress, the President, and the Article III judiciary. Yet agencies existed from the very start of the Republic. That’s for a good reason: even in 1789 it was clear that the power to accomplish some tasks had to be lodged, or “vested,” in a government official who was not a congressperson, the President, or a federal judge. Indeed, the Constitution contemplated the existence of such officials, given Article II’s provision about which officials could be appointed by the President (“Officers of the United States”) and which could be appointed by “the Courts of Law,” the “Heads of Departments,”...
- The Constitutional Status of Administrative Agencies
- Ever since then questions have arisen about which powers could be vested in such officials, and what level of control the President and Congress could have over them.
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Chapter 19. Timing Issues and Preliminary Relief 165 36 results (showing 5 best matches)
- The short version:
- There are three important doctrines that speak to the timing of a challenge to an agency action. First, such a challenge has to be ripe. Second, the APA allows parties to challenge “final agency action.” Third, as a general background principle, amended by the APA, a person must normally exhaust her administrative remedies before bringing suit in court.
- These doctrines are very closely related. Indeed, a famous D.C. Circuit case once held that the plaintiff’s lawsuit was premature, but the three judges on the panel each identified a different one of the three timing doctrines identified above in support for that decision! , 814 F.2d 731 (D.C. Cir. 1987). Thus, you should not try too hard to separate them out. Nevertheless, at a conceptual level, one can perhaps say that ripeness doctrine is court-centered, in that it looks to whether the matter is one that is appropriately decided by a court at that point in time, while “finality” (the requirement that there be a final agency action) looks to the agency, and whether it has reached a final decision that is ready for judicial challenge, while exhaustion looks to the plaintiff, and considers whether she should be forced to exhaust her administrative remedies. Again though, and as you’ll see in this chapter, these doctrines are closely related. This chapter concludes with brief... ...a...
- A lawsuit challenging agency action must be ripe. Ripeness doctrine includes both constitutional and prudential aspects. In addition, either the organic statute must make the action reviewable or the action must be “final agency action” within the meaning of APA Section 704. Finally, a plaintiff is generally required to exhaust her administrative remedies before suing in federal court, although Section 704 prescribes when an agency may insist on such exhaustion in a case brought under the APA.
- The modern law of ripeness dates from , the Court explained that ripeness is comprised of two inquiries: (1) whether the case is fit for judicial resolution at that point in time, and (2) what the hardship to the parties would be if the court deferred review to a future time. It suggested that the first prong spoke to whether the case had “ripened” into a case or controversy that was appropriate for an Article III court to decide, thus indicating that this prong is of constitutional dimension. As will be explained below, the hardship prong, by contrast, speaks more to prudential concerns about when it is a good idea for a court to decide a case immediately, and when, by contrast, it is appropriate for the court to wait.
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Chapter 25. The Freedom of Information Act 227 39 results (showing 5 best matches)
- The short version:
- The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is an extremely important tool for private parties seeking access to the vast information administrative agencies hold. FOIA was originally enacted in 1966 and has been amended several times in the service of increased access to information.
- “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source . . ., (E) would disclose techniques and procedures for law enforcement investigations or prosecutions . . ., or (F) could reasonably be expected to endanger the life or physical safety of any individual;”
- Even though agencies are subject to the Fourth and Fifth Amendments, they nevertheless enjoy significant power to engage in searches and compel the production of documents. In particular, Fourth Amendment warrant requirements standards are adjusted to account for the distinct context of administrative searches.
- Some of these types of documents should sound familiar to you, most notably agencies’ “rules of procedure,” (a)(1)(C), and “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency,” (a)(1)(D). These documents, of course, constitute the types of rules that are either required to be promulgated only after a rulemaking process (whether informal or formal), or those that Section 553 explicitly exempts from that rulemaking process. (See Chapter 6 for a discussion of the rulemaking process, and Chapter 7 for a discussion of the types of rules that are exempt from that process.) More generally, Section 552(a)(1) seeks to ensure that the public knows how to access the agency and what processes the agency has in place for performing its various functions.
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Chapter 3. Presidential Control over Agency Officers 25 13 results (showing 5 best matches)
- and can be thought of as strong endorsements of congressional authority to immunize administrative officials from presidential removal-at-will power. , the Federal Communications Commission and the Federal Reserve Board) can be headed by officers that are not subject to removal at will by the President. , by validating Congress’s decision to immunize even an officer who performed a core law-enforcing function, arguably gave even more power to Congress to immunize important agency officials.
- The short version:
- The law changed in . In addition to discussing the Appointments Clause (noted earlier in this chapter), that case also considered presidential removal power. dealt with a law establishing a process for the appointment and removal of “special prosecutors” designed to allow investigation into possible illegal acts by White House officials. Among other things, that law limited the President’s power to fire the special prosecutor to situations where there was “good cause” to fire her.
- The first two chapters dealt with congressional attempts to give agencies powers normally wielded by, respectively, Congress itself and Article III courts. This leaves the Executive branch itself. In the context of the Executive branch, the relevant question is whether Congress can give agencies powers normally wielded by the Executive branch. After all, we normally think about agencies as being part of the Executive branch. Instead, the question this chapter takes up involves issues of presidential control—in particular, the extent to which the President has the constitutional authority to appoint, control, and remove high-ranking administrative officials.
- In sum, then, questions about presidential control over high-ranking government officials implicate the basic ability of the President to perform his constitutional duty—to “take Care that the Laws are faithfully executed,” Art. II, § 3. But determining what that duty requires in terms of control over the hiring and removal of subordinate officers remains a fact-intensive exercise and thus, the subject of great debate.
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Chapter 20. Section 706 of the APA 179 22 results (showing 5 best matches)
- Let’s walk through the other subsections. Subsection (B) straightforwardly authorizes courts to review agency action for constitutionality. This shouldn’t surprise you, given how critical review for constitutionality is, as a general matter, to the role of the Article III courts. Don’t be surprised at the prospect that agencies might have so much authority that they might do something unconstitutional. Just to take three quick examples, an agency action can discriminate on usually-forbidden grounds (such as race), it can impair a fundamental right (for example, if an immigration agency detains a citizen at the border), and it can deny someone the process that is guaranteed by the Fifth Amendment’s Due Process Clause. These simple examples should make clear that review for constitutionality is a real prospect in administrative law.
- The short version:
- “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
- By contrast, subsection (F) may not ring a bell with you. That subsection contemplates not just , review with no deference) by an Article III court, but a completely new fact-finding process at the reviewing court. Thus, subsection (F) contemplates, essentially, the reviewing court starting all over again with regard to fact-finding, calling the witnesses again and review). Thankfully, you will likely not encounter many situations in which this subsection applies. Subsection (F) hearkens back to pre-APA case law where it was sometimes thought that some questions were so critical to the agency’s constitutional authority to act that the facts supporting that authority had to be re-found by the Article III court after a brand-new trial in that court. That case law has largely been abandoned except in extremely specialized areas, and unless your professor focuses on it, it’s something you can probably safely de-emphasize.
- Thus, subsections (B) and (D) are intuitive, but apply only to particular situations (respectively, claims of unconstitutional or procedurally bad agency action), while subsection (F) is largely irrelevant today. That leaves us with subsections (A), (C), and (E). Let’s think about those three situations. Subsection (C) applies in an important, but nevertheless discrete, area of law—the area dealing with claims that the agency has misinterpreted its organic statute. We’ll deal with this particular area in Chapter 22.
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Chapter 7. Exceptions to the Rulemaking Process 63 30 results (showing 5 best matches)
- Finally, “general statements of policy” are exempt from Section 553’s notice-and-comment and pre-effective date publication requirements. The , a document drafted by the Attorney General very shortly after the APA was enacted and an influential source of the APA’s meaning, defines such statements as those “issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”
- The short version:
- Now that we have dealt with the exceptions in subsection (a), the “good cause” exception, and the exemption for “procedural rules,” we will now consider Section 553’s exceptions for “interpretive rules” and “policy statements.” Begin with what these types of rules are : they are not “legislative rules.” What’s a legislative rule? Simply put, a legislative rule is a rule that makes law, and is thus legally binding. In other words, a legislative rule is a rule that changes the law in some way, and thus is not, for example, a rule that merely interprets a pre-existing rule. Second, a legislative rule is legally binding, rather than being, say, a rule that merely states the agency’s general view about how it will approach its regulatory task (which, as we’ll see, is called a “policy statement”).
- Given the murkiness of the distinctions between legislative rules on the one hand and, on the other, interpretive rules and policy statements, and given also the leeway agencies might seem to enjoy to avoid having to call something a legislative rule (and thus have to go through notice-and-comment rulemaking), you might ask why agencies don’t use these exceptions even more. To be sure, they do use these exceptions—a lot. But courts have suggested that there may be incentives for agencies not to abuse this leeway. Most importantly, when an interpretive rule or policy statement is challenged in court, an agency may have a harder time convincing the court that the rule is reasonable if it can’t show that it solicited input from regulated parties. Such a failure might convince a court that the agency lacked all the relevant information that was available, and thus reached a sub-standard conclusion. By contrast, an agency might have an easier time defending the reasonableness of a ...and...
- Second, a legislative rule—exactly because it is “legislative” (in the sense that it explicitly makes law)—is binding on all persons. This fact may mean that a legislative rule will win broader compliance with less agency effort. The theory here is that regulated parties will be less tempted to take their chances on the agency filing an enforcement action against them, since the (legislative) regulation is already binding on them, in contrast to a mere interpretive rule, which, since it’s not legally binding on its own force, does not formally apply to any party until an enforcement action is brought.
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Part six. Agencies and Information 3 results
- As you’re likely well-aware, in today’s world information is critical to power and influence. Administrative agencies possess vast amounts of information—data and studies that agencies themselves generate, as well as information they collect from persons, either informally or via a legal requirement.
- This final Part of this Guide considers the relationship between agencies and information. It begins, in Chapter 24, by examining agencies’ power to information, if necessary by compulsion. It then considers, in Chapter 25, their obligation to information they possess, under the requirements of the Freedom of Information Act. As these chapters make clear, agencies have a great deal of power to gather information, but they also face significant obligations to disclose the information they have.
- Agencies and Information
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Chapter 2. Congressional Power to Create Non-Article III Courts 19 12 results (showing 5 best matches)
- In addition to delegating its own (legislative) power to agencies, Congress has also bestowed on agencies the power to adjudicate cases. This practice creates a potential conflict with another “vesting” clause, this one at the start of Article III, which vests “the judicial power of the United States . . . in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article III, § 1, cl. 1. Such Article III courts are staffed by judges who are selected by the President and confirmed by the Senate, and enjoy life tenure with salary protections. But in addition to establishing such federal courts staffed by “Article III judges,” Congress has also created adjudicative positions in agencies, staffed by so-called “administrative law judges” (ALJs), and sometimes called “agency courts” or “Article I courts” because they are created by Congress when using its Article I powers (for example, to regulate interstate commerce). Since Article III...
- The short version:
- , it has come to be understood that the archetypical private right is one that is between two private parties (as opposed to one between a private party and the United States Government) and based on the common law (as opposed to federal statute). This simplified distinction between private and public rights hides a lot of ambiguity: however, because the claims at issue in both and were between two private parties and based on the common law, the Court in both cases was able to evaluate the role of the public/private right distinction without recourse to more difficult definitional questions.
- Finally, Justice O’Connor noted that Congress had good reasons for setting up the agency adjudication scheme. The scheme in question involved adjudication of disputes over commodities transactions, which were regulated by a federal law about which the agency’s ALJs could be expected to be very knowledgeable. To be sure, those ALJs also had jurisdiction over common law claims related to disputes over the federal statute—indeed, the claim that gave rise to the case was the broker’s common law claim that the customer has simply breached his commodities brokerage contract. But she observed that such jurisdiction paralleled supplemental (or “pendent”) federal court jurisdiction, which was a long-accepted part of federal court jurisdiction. She noted that Congress had intended for such statutory claims to be resolved through an expeditious and procedurally-streamlined process, which could only be made effective if the ALJ also had jurisdiction over common-law counterclaims that related
- does seem to be the foundational case on point, as recently reinforced by . At the very least, its more accepting attitude toward agency courts reappears even in cases that apply a rigid public/private right distinction in deciding such questions. Indeed, even in , and described the common-law counterclaim in as one whose adjudication by the agency court was “essential” to the agency court’s resolution of the statutory claim everyone agreed the ALJ could adjudicate. Thus, regardless of which approach a court takes, many claims—including those that seem at first glance to implicate private rights—appear to be amenable to adjudication by a non-Article III court. At most, the only claims that might be immune to such adjudication are those based on rights that appear to be private, and that are not “closely integrated into a public regulatory scheme.”
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- Of course, a party who wishes to challenge an agency action, for example a regulation, could simply sit back and wait for the agency to try to enforce that action against the party, and then defend on the ground that the action is illegal. The last sentence of Section 703 makes clear that such relief is usually available. (Take a look at Section 703, either in your book or Chapter 15 of this Guide, to see that language.) Of course, this strategy is risky: defiance of an agency action that is ultimately upheld means that the party would be liable for whatever sanctions that could be imposed for that violation. Sometimes those sanctions can be significant. This dilemma is further explored in the discussion of the
- The short version:
- in a court of competent jurisdiction
- Section 703 is generally straightforward. For our purposes, it reflects two important concepts. First, it provides that the form of action one uses to challenge an agency action is either (1) the review proceeding authorized by the organic statute or (2) in the absence or inadequacy of that proceeding, “any applicable form of legal action,” “including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus.” The first of these possibilities reflects the fact that modern organic statutes often prescribe the type of action that one can bring in order to challenge the agency’s action. However, if the organic statute does not include such a provision, or if that provision is inadequate, then the plaintiff may use whatever legal proceeding would provide the desired relief, for example, an action for a declaratory judgment. The general idea here is that the APA attempts to make possible whatever legal action would make the plaintiff whole, while...
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Chapter 21. Judicial Review of Agency Fact-Finding 185 10 results (showing 5 best matches)
- Judicial review of fact-finding turns mainly on the level of formality of the agency action that produced the agency’s fact-findings that are under review. (Again, in a very small category of cases the reviewing court is required to conduct an entirely new trial in the course of finding the relevant facts, under Section 706(2)(F), but this is a category we won’t discuss here given its lack of prominence in administrative law today.) If the agency action was formal, then findings made through that formal process are reviewed under the “substantial evidence” standard. If the action was informal, then those findings are reviewed under the “arbitrary and capricious” standard.
- We will shortly talk about what this review looks like. But it’s important to put on the table a basic question about these two standards: what is the difference between them? Courts are divided on this question. Some judges argue that substantial evidence review is more stringent than review under the arbitrary and capricious standard. This makes some intuitive sense. After all, formal agency action sounds more elaborate (and indeed,
- The short version:
- Think about how this rule might apply in a given case. If, say, a supervisor testified that the employee had acted in ways that merited termination, and if the ALJ found the supervisor to be a credible witness, the ALJ’s ultimate finding in favor of the employer might carry special weight with the reviewing court. On the other hand, consider an observation by the agency heads that the termination occurred two days before a bitterly-contested union election, and a conclusion, based on the agency heads’ experience, that terminations so close to a union election almost always tended to be based on the employee’s union preferences. That sort of secondary inference would strongly counsel in favor of the agency heads’ finding in favor of the employee.
- Other judges are more skeptical of this idea. On their view, it asks too much of judges to calibrate their judicial review scales so carefully as to draw a meaningful distinction in terms of stringency between review under these two standards. Instead, these judges suggest that the best way to understand this difference is as it relates to the record to which the agency can resort when defending its decision in court. Under either standard, the agency can only rely on information that it had in front of it when it acted. We will refer to this as the “contemporaneous rationale” requirement, which we’ll encounter in the discussion of agency policy-making in Chapter 23. But some judges argue that the substantial evidence standard requires that the agency rely only on the information and argumentation that was in the formal public record of the agency’s decision. This idea flows from the thought that, since Congress (or the agency) thought the matter was important enough to make the...
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Chapter 4. Congressional Retention of Delegated Power: The Legislative Veto and the Congressional Review Act 31 20 results (showing 5 best matches)
- The short version:
- Beyond formally rescinding regulations, Congress retains other important mechanisms for controlling agencies. Congress—and in particular, the relevant committees that have jurisdiction over a given agency—still has to approve the agency’s budget requests. In addition, the Senate has the power to approve or reject the President’s nominees for the top leadership positions in each agency. Finally, the relevant committees engage in ongoing communication with agency staff, and can call agency personnel to testify if necessary. Many of these tools are blunt, and not well-suited to the sort of micro-managing that the legislative veto allowed. Others can be more carefully fine-tuned, but, as informal controls, their efficacy depends on the facts of the particular situation. Still, it remains the case that Congress retains many formal and informal means for influencing agency action short of a formal statute disapproving a particular regulation.
- Justice Powell agreed with the result, but based his vote on his conclusion that Congress had taken upon itself the role of adjudicator, by passing judgment on a particular person’s case. Justice White dissented, arguing that the underlying principles of bicameralism (approval by both houses) and presentment (the requirement that any bill be presented to the President for signature or formal veto) were satisfied in this case. Justice White stressed the importance of allowing Congress to adopt innovative ways of controlling administrative agency action, given its practice (seemingly approved by the Court) of delegating broad swaths of its power to agencies.
- The Court struck down the legislative veto in that case and, by extension, all legislative vetoes. Speaking for seven Justices, Chief Justice Burger laid out Article I’s lawmaking process, noted the exceptions to that process (for example, the requirement that 2/3 of the Senate concur in order for a treaty to become ratified and binding law), and concluded that the veto of the Attorney General’s decision to suspend Chadha’s deportation constituted lawmaking (because it changed Mr. Chadha’s legal rights). Given this train of logic, he concluded that legislative vetoes—whether one-house, as in
- One option Congress had frequently employed before 1983 was to insert into many organic statutes a so-called “legislative veto.” As the name implies, a “legislative veto” is a decision by Congress to disapprove, or “veto,” an agency action. But a legislative veto is different from a standard statutory rejection of an agency action because it doesn’t go through all the requirements the Constitution sets forth in Article I, Section 7 to enact a bill into law. Thus, for example, a legislative veto could provide that such a rejection of an agency action would become effective upon its approval by both houses of Congress, without presentment to the President. Indeed, it could also provide that such a rejection would become effective upon only one house approving it.
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Chapter 8. Ex Parte Contacts and Bias in Rulemaking 75 12 results (showing 5 best matches)
- The short version:
- , a coalition of marketers and advertising agencies sued the agency when it promulgated a proposed rule limiting advertising aimed at children. The plaintiffs argued that the agency head was illegally biased in favor of the content of the proposed rule, given public statements he had made about the general problem of such advertising and its potential to mislead. The court concluded that such a challenge could succeed only if the plaintiffs had proven by “clear and convincing evidence” that the agency head had “an unalterably closed mind.” In adopting such a high standard for the plaintiffs to meet, the court explained that the very nature of the rulemaking process was such that agency personnel had to be expected to have discussed the policy issues relevant to the rulemaking before promulgating the proposed rule. That discussion in turn would likely have given those personnel some opinions about the wisdom of the rule. The “unalterably closed mind” test respects that reality, while...
- Note that these prohibitions pertain only to contacts: even in formal rulemaking, agency personnel can continue to speak among themselves . This latitude is often explained as reflecting the reality of the rulemaking process, which is understood as a process in which different agency personnel ( , lawyers, policy experts, and technical experts) must be able to talk and share information informally in order to develop the best rule.
- The same character of the rulemaking process identified above—that is, its character as a collegial process in which different agency personnel need to speak informally about the relevant issues—has also been cited as a reason to not impose a sharp requirement that an agency not be biased about, or not have prejudged, a particular regulatory issue. The standard rule regarding such bias or prejudgment is that the agency not have “an unalterably closed mind” or “an irrevocably closed mind” about the question. This is a difficult standard for plaintiffs to meet. The reason for that is that one would the agency to have pre-existing views about a particular regulatory issue before it sets about promulgating a rule on that issue. Indeed, it would be odd—even problematic—for the agency to commence a rulemaking without having any pre-judged idea at all about whether the particular subject required regulation or whether the proposed regulation in question was a good idea. At the same time,...
- communications in informal, notice-and-comment rulemaking. (As discussed later in this section, it does prohibit some communications should be prohibited, given the fundamental unfairness of a process that features such communications, and given also that such communications render the eventual rule substantively problematic, since not all commenters had a chance to engage all the arguments that were made during the rulemaking process.
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Chapter 10. An Overview of Adjudication Procedures 87 12 results (showing 5 best matches)
- The short version:
- The APA’s procedures for formal adjudication are provided in Sections 554, 556, and 557. (Recall from Chapter 6 that Sections 556 and 557 also apply to formal rulemaking; however, Section 554 applies only to formal adjudication.) Sections 556 and 557 lay out a series of requirements and procedures that reflect the trial-type nature of formal adjudications (and formal rulemakings). Among other things, Section 556 provides for recusals of decision-makers (subsection (b)), sets forth the powers of the presiding officer, which include a variety of tasks that reflect that trial-type nature (including administering oaths, issuing subpoenas, regulating depositions and ruling on settlement offers) (subsection (c)), and provides for oral testimony and cross-examination and requires that all decisions be based on the record (respectively, subsections (d) and (e)). For its part, Section 557 provides that the decision of an ALJ constitutes the decision of the agency unless the agency head hears an
- By contrast to this panoply of rules and procedures governing formal adjudication, the APA says very little about the procedures for , 496 U.S. 633 (1990), the Court concluded that Section 706 of the APA, which authorizes courts to strike down agency action that is “arbitrary and capricious,” imposes a minimal procedural requirement that agencies provide a sufficient explanation for their decisions, so as to provide a foundation for “arbitrary and capricious” review. (The “arbitrary and capricious” standard, and the other standards courts employ to review agency action, are discussed later, in Part Five.) The Court also noted that Section 555 also provides a set of minimal procedural requirements applicable to informal adjudication. Probably the most important of these requirements is Section 555(e)’s provision that the agency’s notice of a denial of a person’s petition, application, or other request be accompanied by “a brief statement of the grounds for denial.”
- Before we continue our discussion of adjudication, let’s pause and take stock. The following chart sets forth the sources of law governing the procedural requirements agencies must follow when they engage in rulemaking and adjudication.
- The APA prescribes procedures for formal adjudication and, to a much lesser degree, informal adjudication. That gap—that is, the APA’s failure to provide significant procedural guideposts for informal adjudication—is filled in by the Due Process Clause of the Fifth Amendment.
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- The short version:
- Why this diversity of viewpoints with regard to adjudication procedures, in the face of the Supreme Court’s aversion to formality in rulemaking? It may well be because courts (including the Supreme Court) likely believe that informality is inherently appropriate for rulemaking, because rulemaking is viewed as an inherently collegial process, and one that focuses on broad policy facts rather than facts about a particular individual. (Recall the discussion of this point in Chapter 6.) By contrast, courts may instinctively prefer formality when the agency engages in adjudication, on the theory that adjudication by its very nature implicates a single party who should therefore have strong rights to participate, in a formal way, in the process by which her liability is adjudicated. This idea implicates the distinction between the and cases, discussed in Chapter 5. Regardless of the reason, the law governing the agency’s discretion to choose between formal and informal adjudication is...
- Interestingly, however, the courts have read that language differently in the two contexts. As noted in Chapter 6, the Supreme Court has all but required that, in order for formal rulemaking to be required, Congress must use the exact words from the APA— Congress must require that the agency promulgate regulations “on the record after opportunity for an agency hearing.” By contrast, courts have not uniformly adopted this strict requirement in the context of adjudication. (In the adjudication context, the law has been made by the federal appellate courts, as the Supreme Court has never conclusively weighed in on the question.) Some appellate courts have indeed adopted the Supreme Court’s analogous approach to rulemaking, holding that agencies are presumed to be allowed to use informal adjudicative methods unless Congress uses the exact words from the APA. But other appellate courts have adopted the exact opposite presumption, holding that agencies are presumed to be required to use
- As with rulemaking, an agency may sometimes be forced to comply with the requirements of the APA’s formal adjudication provisions, while in other cases the agency may be free to act informally, subject only to the minimal requirements set forth in the APA plus whatever may be required by the Due Process Clause. The language triggering the requirements of formal adjudication is the same as the language triggering the requirements of the formal rulemaking process. In both cases, formality is required if the agency’s organic statute requires the agency to act “on the record after opportunity for an agency hearing.” You’ll recall from Chapter 6 that, in the rulemaking context, this language appears in Section 553(c). For adjudications, you can find that language in Section 554(a).
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Chapter 9. White House Review of Rulemaking 81 16 results (showing 5 best matches)
- The short version:
- The details of these orders have often changed with changes in presidential administrations, but the basics have remained consistent. Under these executive orders, agencies must submit proposed regulations to OMB, and explain how those regulations balance regulatory costs and benefits. More recent versions of these orders have made clear that OMB does not have the authority to order the agency to do anything in response to OMB’s review. In particular, they make clear that such proposed regulations must remain consistent with the directives the agency received in the organic statute that gave the agency the authority to promulgate those regulations in the first place. Thus, for example, if an organic statute directed the agency to promulgate regulations to take care of a particular problem regardless of the cost, an agency cannot be required by OMB to change its regulation to reflect a cost-benefit analysis. The point of this regulatory review is to ensure that the White House is able
- In addition to the rulemaking requirements imposed by statutes (the APA and the organic statute) and the remaining congressional oversight tools discussed in Chapter 4, agencies are also subject to White House review of their proposed rules. Starting with President Reagan in 1981 and continuing to the present day, presidents have promulgated executive orders requiring agencies to submit proposed regulations to a White House office—the Office of Management and Budget (OMB)—for review.
- Formal rulemaking requires something akin to trial-type procedures, including a decision based on the formal record and, in most cases, an opportunity for oral presentation. Informal rulemaking entails a process in which interested parties are allowed to submit written comments on a proposed agency regulation.
- As a very general matter, one can analogize rulemaking to legislation and adjudication to court action. Only adjudications are subject to the protections of the Due Process Clause.
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Part three. Agency Adjudication 1 result
- This part of the Guide covers agency adjudicative procedures. Recall that Chapter 2 set forth the rules governing the constitutionality of statutory schemes that authorized agencies to adjudicate. Part Three focuses on the procedures that an agency must follow when performing such adjudication. Chapter 10 provides an overview of adjudicative processes. Chapter 11 then considers the agency’s discretion to choose between formal and informal adjudicative processes. Chapter 12 considers those formal processes, while Chapter 13 considers the Due Process Clause, which provides most (though not all) of the procedural requirements for informal adjudication. Chapter 14 concludes this Part by examining integrity issues in adjudication.
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Chapter 12. Formal Adjudication 95 13 results (showing 5 best matches)
- The short version:
- Subsection (c)(2) simply points toward Sections 556 and 557 as describing the type of hearing to which parties have a right when the adjudication is a formal one. Subsection (c)(1) again reflects the adjudicative nature of the proceeding, by giving parties not just the opportunity to submit “facts” and “arguments,” but also “offers of settlement” and “proposals of adjustment.”
- to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.”
- This provision reflects the difference between adjudications—which affect particular parties—and rulemakings—which affect entire classes of persons—by making clear that notice of an adjudication shall be more particularized, to “persons entitled to notice” of that hearing.
- While Sections 556 and 557 apply to both formal rulemaking and formal adjudication, Section 554 applies only to formal adjudication, and thus is discussed here. Much of Section 554 is devoted to the procedural details that attend adjudications as contrasted to rulemakings. Thus, for example, Section 554(b) states that:
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- This Part of this Guide discusses the standards courts use when reviewing the substance of agency action. Of course, courts also review the by which agencies act, as we saw in the cases discussed in Parts Two and Three. But those cases do not involve difficult decisions about the standards governing that review. By contrast, when courts review the output of those processes—that is, the actual regulatory results—difficult questions arise regarding the proper standard of judicial review.
- One caveat as you begin to read these chapters. We sometimes assume that fact-finding, law-interpreting, and policy-making are completely distinct functions, with no overlap. As we’ll see, they’re not. This will complicate our examination of how courts review agencies’ performance of each function, since, as it turns out, those functions tend to bleed into each other. As you study this material, it will be important to keep these functions distinct in your mind while at the same time recognizing their interrelatedness.
- Part Five deals with those questions. After an introductory chapter (Chapter 20) discussing APA Section 706—the source of courts’ authority to perform such judicial review—it then considers, in Chapter 21, judicial review of agency fact-findings. It then considers judicial review of agency legal interpretations, in Chapter 22. Finally, it considers judicial review of agency policy-making, in Chapter 23.
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West Academic Publishing’s Law School Advisory Board 12 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus
- Robert A. Sullivan Professor of Law Emeritus
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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Table of Contents 44 results (showing 5 best matches)
- The Constitutional Status of Administrative Agencies
- A.Rulemaking Procedures Applicable to Both Formal and Informal Rulemaking48
- D.When to Apply Chevron, and When to Apply Skidmore199
- C.Agency Discretion to Choose Between Rulemaking and Adjudication42
- A.Foreign Affairs and Military Functions64
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- Publication Date: September 20th, 2018
- ISBN: 9781640201187
- Subject: Administrative Law
- Series: Short & Happy Guides
- Type: Overviews
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Description:
This efficient and concise Guide explains complex Administrative Law concepts in accessible language without sacrificing the nuance that distinguishes a superior exam performance from an average one. It follows a logical sequence of topics used by many professors in their classes, starting with the constitutional foundations of the administrative state, continuing through the procedural requirements for agency rulemaking and adjudication, then the rules governing judicial review of agency action, and concluding with agency control over information.
The Guide’s treatment of each major topic concludes with “The Takeaway”: a set of bullet points that succinctly summarizes the main issues that topic addresses. In turn, each topic is broken down into chapters, each of which concluding with “The Short Version”: a very short statement of the basic lessons that chapter teaches. These summaries provide quick and easy access to the main points of administrative law, to assist the student preparing both for each class session and for the final exam. This Guide thus can help students at all stages of their encounter with Administrative Law, from the very first day of the class to the night before the final exam.
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