Admin Outline—Pierce—Fall 2012
I.
AGENCY
a. An agency is an entity that has "substantial independent authority" MUST be able to adjudicate disputes and/or
issue rules
i. A variety of support functions are not enough!
b. Types of Agencies
i. Executive Agencies: Cabinet agencies  sub agencies within each Cabinet, headed by a single Secretary
1. Agencies with administrators who only work for the President / appointed and removed by
ii. Hybrid Agencies: like a commission
1. Free-standing agencies (like the FTC, SEC)
iii. Independent agencies headed by commissions / multi-member bodies (odd number of people, terms are
staggered)  insulated from political pressure and control
iv. Courts largely ignore definition in APA
v. President is not an agency [Franklin v. Massachusetts]
c. Agency’s job is to provide support services operational and administrative in nature – [CREW Case]
i. Agencies are inferior to Congress, President and Courts
1. Agency power is drawn from the three branches of government
2. With President’s signature/acquiescence, Congress enacts legislation that assigns an agency
responsibility and thus some authority and discretion, to administer a statute by enforcing its reqs
and/or pursuing its goals
3. Congress can enact legislation imposing procedural hurdles that agencies must surmount before
they can act
4. Presidents have control in that they can appoint officials (with advice and consent of Senate) and
push agendas
d. Quasi Functions of Agencies
i. Judicial: closed and politically neutral
ii. Legislative: open and intensely political
II.
ADMINISTRATIVE PROCEDURE ACT
a. To determine which procedure to use: Agency’s rules (sometimes not clear or consistent with statute)  Agency
statute (conjunction with APA)  Due Process Clause (history, tradition, balancing of interests, natural rights)
b. A general statute that applies to most federal ad law decisions
c. History of the Law
i. FDR brings about the New Deal / increased power of government through agencies (“unregulated market
forces produced a mess, so need more government regulation”)
1. Liberal dems – people who believed FDR was right and gave government lots of power / agency
discretion
2. Conservative repubs – rallied against FDR, called for safeguards, elaborate decision making
procedures for agencies, their power has to be subject to judicial review
d. Judicial Review is covered in Sections 701-706
i. §701: apply UNLESS statute precludes it or action is committed to agency discretion by law
ii. §704: actions are reviewable if made reviewable by statute or final agency action for which there is no
adequate court remedy
iii. §706: Courts can strike down agency action that’s a&c, abuse of discretion, not in accordance with law,
contrary to constitutional rights, in excess of statutory jurisdiction, w/o proper procedure, unsupported by
substantial evidence (formal) or unwarranted by facts (de novo review)
e. Procedures covered in Sections 551-559
i. Formal Adjudication: 554-557
1. Trial like proceedings
2. ONLY required if statute says “on the record only after opportunity for hearing”
ii. Informal Adjudication: 555
1. MAJORITY of decisions
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2. Use whenever statute authorizes adjudication without issuing magic words
3. A lot of discretion for the agency
iii. Informal Rulemaking: 553 (3 step notice + comment)
1. Publication of notice of proposed rulemaking
2. Solicitation and consideration of industry/expert comments
iv. Issuance of final rule accompanied by rationale reasons
f. Formal Rulemaking: 553, 556-557
i. 4 step process: Notice, comment, issuance of final rule, AND oral evidentiary hearing subject to cross
examination
g. Must be read in conjunction with statute that authorizes agency action for the issue (organic act)
III.
DUE PROCESS
a. Adjudication and Agencies
i. Remember: Most agencies adjudicate far more cases than all courts combined, vary in their
complexity, formality and scope
b. Due Process
i. 5th amendment: no person shall be deprived of life, liberty, or property without due process of law
ii. Influences agency procedures in indirect ways
1. Congress chooses the procedure it requires an agency to use to resolve a class of
adjudications influenced by its beliefs with respect to the due process requirements
2. Congress often leaves an agency considerable discretion to choose the procedures it will use
to resolve a class of adjudications
c. When does Due Process Apply?
i. Act in question must deprive individual of life, liberty or property
1. ONLY APPLIES TO ADJUDICATION NOT RULEMAKING
2. Adjudication affects individuals, rulemaking affects groups
a. Assessment of tax for the cost of paving a street on lands abutted to P, owed notice+
oral hearing [Londoner v. Denver]
b. Where a rule of conduct applies to more than a few people, it is impracticable that
everyone should have a direct voice in its adoption [Bi-Metallic Investment Co v. State
Board of Equalization]
3. Policy reasons:
a. Due process does not require the gov’t to provide a hearing before it takes action that
adversely affects a class of individuals
b. Not pragmatic, prohibitively expensive to have hearings for all
c. Only refuge for an individual singled out for adverse treatment is the judicial process,
large groups protected by legislature
ii. Analysis
1. Is this adjudication?
a. Look to the nature of the facts
i. Are they historical facts unique to an individual aka adjudicative facts?
ii. Or are they legislative facts that help a govt institution decide questions of
law, policy and discretion
2. Does the action deprive of life, liberty, or property?
a. Life-Probably never deprived
b. Liberty
i. Freedom from Incarceration
ii. Freedom from Official Stigmatization with Deprivation of Tangible Interest
1. Constantineau:
a. P’s name on list of drunks, prevented from buying
2. Paul v. Davis:
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a. Stigma + TEST: when the stigmatization is coupled with
deprivation of something tangible (like buying alcohol,
untenured job)
b. In this case, list of shoplifters sent to stores was not enough
iii. Freedom from suffering adverse consequences as a result of exercising a
constitutional right
1. Roth:
a. Cannot be punished for exercising liberty interest in free
speech
b. But if you’re fired in a way that doesn’t hurt your reputation –
no protected interest
2. Applies in government employment cases where employees are
fired for religious beliefs even if they’re “at will.”
c. Property
i. Is there a statutorily conferred benefit on a class of persons (LOOK FOR THE
WORDS ENTITLEMENT) or a job that only allows firing for cause?
1. Golberg v. Kelly: statute confers an entitlement to AFDC benefits
ii. State common law property Interest
iii. Real property interest
iv. Is there a contract?
1. Bd of Regents v. Roth; Perry v. Sinderman (1972):
a. Government jobs
i. Was there a mere unilateral expectation? (Roth) Then
no property interest
ii. if K says we will not fire you unless we have a good
reason, i.e. in faculty guide-->justified expectation->property interest (Sinderman)
2. Highly unlikely that they meant to include contract rights into
property rights that could be deprived without a hearing
3. Loudermill (1985)
a. Ohio statutes say you’re not entitled to pre-firing hearings,
but can have a post-firing hearing. Court said that’s
inadequate, must be some kind of pre-firing hearing, even if
written or informal coupled with post termination admin
procedures in statute
b. 8 justices talk about procedures to which someone is entitled
is in the Court’s purview, not legislatures
i. Rehnquist alone in writing dissent staying with
bitter+sweet
c. No deprivation of liberty interest in this case
3. What process is due the person?
a. ***remember, the gov’t can deny these things from citizens but has to put in
safeguards
b. Apply Mathews v. Eldridge Factors
i. Facts: guy deprived of SSI
ii. THREE PART BALANCING TEST:
1. Importance of the interest at stake (governmental and private)
a. State interest can’t be monetary value, not objective amounts
in cost comparisons
b. It’s a subjective inquiry – based on the values of the decision
maker
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2. Risk of error and incremental value of added procedures and cost of
added procedures
a. Written medical reports “reliably” describe condition
3. Government interest in promoting efficiency
a. Administrative costs and financial burden
b. [hard to apply and hard to predict]
iii. Why distinguish from Goldberg?
1. Disability beneficiaries have less need (What about degrees of
disabled)
2. Doctors have a ability better to communicate in writing
3. Issues in disability cases are more objective in nature
4. Courts were applying Goldberg to require oral hearings in many
contexts  many agencies complained about the cost of compliance
iv. Due process requires that recipients of a contingent statutory entitlement to
anything have a pre-termination of benefits hearing [Goldberg v. Kelly]
1. Have to weigh recipients (means to live by) interest with the gov't
interest in summary adjudication
2. Doesn’t have to be a quasi judicial trial, just the basic procedural
safeguards:
a. Opp to be heard, timely and adequate notice, opportunity to
defend by confronting adverse witness and presenting own
arguments
3. Dissent: entitlements are a privilege NOT a right
v. Face-to-face sit down satisfies due process (Goss v. Lopez student suspension
case)
c. OR Just Pass the Trash
i. To avoid awarding due process, fire someone before they receive tenure but
without specifying the reason, i.e. abusing kids
1. If you have a pre term hearing, they’ll have tenure by the time you’re
done
2. If you fire for sexually abusing kids then stigma + (liberty interest
revoked)
3. Pass the trash, fire the guy and when someone calls for a reference
you don’t say the real reason
d. Bitter with the Sweet (Rehnquist)
i. If an individual relies on a statute as the basis for the right that is protected by
due process, he must take the bitter with the sweet, i.e. he must accept the
procedural contours of the right along with the substantive contours of the
right
1. Arnett v. Kennedy (plurality), Bishop v. Wood (majority), embraced
by circuit courts until Loudermill
e. What process is due to a US Citizen held on US soil as an enemy combatant [Hamdi
v. Rumsfeld]
i. Balance of private and gov’t interest: We hold that although Congress
authorized the detention of combatants in the narrow circumstances alleged
here, due process demands that a citizen held in the US as an enemy
combatant be given a meaningful opp to contest the factual basis for that
detention before a neutral decision-maker + hearsay and presumption for US
1. 5 – Justices dissenting – 4 would require more, 1 would require less
IV. STATUTES AS A SOURCE OF PROCEDURAL REQUIREMENTS
A. Statutes often require agencies to use decision making procedures greater than or at least different from
the procedures required by due process
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I. Note: If an agency adopts procedural rules that exceed those required by statute or by due
process, the agency is required to follow its own rules to the extent that the confer important
procedural rights on parties
B. APA
I. Formal Adjudication
1. Section 554-8 of the APA describe the procedures that are potentially required in
adjudications
2. Formal adjudications look like court trial: ALJ, oral evidentiary, writes opinion including
findings of fact and conclusions of law
3. ALJs are independent of agencies, no control over them
4. Formal adjudication procedures kick in with the words "on the record after opp for an
agency hearing"
5. What is a hearing?
A. Chevron v. Natural Resources Defense Council Inc:
I. Said that the use of the phrase public hearing did not trigger formal
adjudication procedures
1. The word “hearing” is ambiguous, and agency’s interpretation
was reasonable (highly deferential)
B. Dominion Energy Brayto Point v. Johnson
I. OK for EPA to deny Ps request for a formal evidentiary hearing after
issuing a proposed final National Pollution Discharge Elimination System
permit
II. EPA took the time to investigate and adopt a final rule that hearings
don't have to be evidentiary which is why they denied Ps request
1. Deference to this reasonable interpretation
II. Informal Adjudication
1. No magic words, free to use informal adjudication (US v. Florida East Coast RR Co)
A. The requirement of a “hearing” does not require the ICC to hear oral testimony,
to permit cross exam or hear oral argument
B. This was technically a rulemaking but since Chevron no court has held that a
“hearing” required formal adjudication
2. Citizens to Preserve Overton Park v. Volpe:
A. Formal findings were not required, but we do not believe that in this case
judicial review is based solely on litigation affidavits was adequate since don’t
constitute whole record
3. Pension Benefit Guaranty Corp v. LTV Corp
A. If due process is not implicated, and organic act does not require further
procedures, then only need to follow APA
B. Informal process usually includes
I. Notice of issues presented
II. Opp to present arguments in either oral or written form
III. Decision of a neutral decision maker
IV. Statement of reasons for decision
1. If the decision is later reviewed by a court and they need further
information to determine if A and C, they will ask decision
maker for a further statement of reasons
V. SEPARATION OF POWERS
a. Due Process requires a neutral decision maker, free of impermissible bias
b. Judicial Models
i. Separation of Functions
1. Admin agencies often possess and exercise both the power to enforce the law and the
authority to adjudicate
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2. APA says neutral decision maker=segregating the investigative and prosecutorial
function from that of the decision maker
a. APA 554d Prohibits employees serving as adjudicators from performing
investigative or prosecutorial functions and vice versa
b. Agency individual can make preliminary decisions and final decision in
adjudication [Withrow v. Larkin]
i. Potential biases are relational, pecuniary
1. The more attenuated the more likely they are allowed
ii. Viewpoints should never be the basis for a disqualification
1. Laird v. Tatum – people wanted Justice Rehnquist to recuse
himself from one case that he had background on
a. Any Justice that knows something would get recused
from case with expertise
2. But see Ward – mayor of a small town that gets half their
revenue from speeding tickets, decisions of guilt or innocence
were made by mayor of city – court said no
3. Adjudicators must proceed in an impartial manner
a. Only applies to formal adjudications, and APA says that agency can substitute
its opinion for that on an ALJ (557(b) and Supreme Court in Universal Camera)
i. When an agency replaces its opinion for that of an ALJ, the reviewing
court can look at the WHOLE RECORD, including what was rejected by
the agency (Universal Camera)
ii. Split Enforcement Model
1. Alternative to the APA model is the split-enforcement model, dividing responsibility for
investigation and enforcement from adjudication
a. IE OSHA for rules and OSHRC for adjudications; same for mine safety
b. Most often used
iii. Judicial Model Versus the Bureaucratic Model
1. Judicial Model
a. Constitution designed to insulate federal judges from external pressure, same
for APA and ALJs
i. But independent judicial minds can lead to deciding case in different
manners--> led to enormous disparities in results
ii. Agencies are allowed to improve quality and efficiency of the work of
ALJs (Nash v. Bowen) [peer review, monthly production goals, quality
assurance system to lower backlog]
2. Bureaucratic Model
a. Other countries use a system with greater accuracy, consistency and efficiency
where decisions are made by teams who are organized hierarchically and who
are instructed to apply objective, verifiable criteria which are constantly
reevaluated
c. Adjudication process
i. Appt ALJ randomly from those available
ii. Set up the case in the same way
iii. Briefing schedule
iv. Come out with his findings
v. Agency can then adopt the findings of the ALJ as their own (rare)
1. Other times they say that they think the ALJ got it wrong, and will explain with reference
to record evidence why we have our findings instead of his (more common)
vi. Supreme Court opinion on this issue
1. Ct must uphold if supported by such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion (Consolidated Edison-highly deferential
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standard) considering both the evidence that supports the finding and the evidence that
detracts from the finding
a. Substantial evidence applies to formal adjudication, arbitrary and capricious
applies to informal adjudication (ADP v. Board of Governors)
i. Formal Adjudication decisions must be based on SUBSTANTIAL
EVIDENCE
1. Hearsay is not substantial evidence
2. Finding contrary to un-contradicted testimony is not usually
supported by substantial evidence
3. Evidence that is slight or sketchy in an absolute sense is not sub
evid
4. Slight in relation to much stronger contrary evid is not sub evid
5. ALJs finding contrary to an agency finding can lead a court to
think agencys decision is not sub evid
6. Dissenting opinions by members of an agency
7. Engaged in a consistent pattern of crediting the agency's
witnesses and discrediting opposing witnesses
8. Written medical reports by independent experts is substantial,
even though its hearsay (Richardson v. Perales)
ii. Informal decisions ARB and CAPRICIOUS applies
1. Agency must engage in reasoned decision making
a. How did you reason from this finding to this piece of
evidence...etc
2. Agency must explain departures from precedent (Yang and Fox)
a. Mass justice agencies do not have precedent, ie SSA
there are too many of them
b. But in other agencies there are precedents
i. You can say we are applying this precedent, but
if you are not you have to explain why!
2. Note: When they findings of the agency and ALJ differ, there is a higher chance of
reversal
a. The court is supposed to considered the findings of the ALJ as well
VI. RULEMAKING
a. Types of Rule:
i. Legislative AKA substantive rules
1. Same legally binding effect as statutes
2. Congressional authorization necessary before an agency may promulgate rules
ii. Nonlegislative: interpretative rules, procedural rules, and policy statements
1. APA calls them inter. rules, general statements of policy, or rules of agency organization,
procedure, or practice
2. Not legally enforceable against the public, many bind agency employees
b. Overall Rulemaking
i. If an agency has the power to issue rules, and the rules are not ‘required by statute to be
made on the record after opportunity for agency hearing,’ the agency must:
1. Issue a notice of proposed rulemaking in which it describes the proposed rules
a. 553 literal language doesn’t require much in the notice, just issues to be
addressed (courts have added more)
b. statement of time, please and nature of proceedings (200-600 pages)
2. Solicit, receive, and consider comments from the public re: the proposed rules (1000 to
1 million pages)
3. And incorporate in the final rules a ‘concise general statement of their basis and
purpose’
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a. Hearings ALWAYS can be satisfied by a written exchange of views
b. Unless a statute says something to the contrary or has the magic words
4. Publish final rule no later than 30 days before its effective dat
5. allow a right to petition
c. Agency Power to Issue Rules
i. Most statutes make it clear that an agency shall or may issue rules to accomplish a particular,
statutorily-identified purpose
ii. Other statutory delegations are more general, providing only that an agency may promulgate
rules as necessary to effectuate the statute's provisions
1. Occasionally a court has to decide whether an agency has the power to adopt leg rules
in the context of a statute not clear on the issue
1. National Petroleum Refiners Assn v. FTC: statute says that the Commission can
prevent persons, partnerships, or corporations from using unfair methods of
competition and may make rules and regs for the purpose of carrying out these
provisions
1. Note: Congress later passed the FTC improvement act which confirmed
right of FTC to make leg rules + added so many procedures that it
abandoned efforts
2. Scholars say that court should only say agency has the rule to issue leg rules
when it statute authorizes a court to penalize a party for violating the agency's
rule
Advantages to Rulemaking
Disadvantages to Rulemaking
Fairness - Broader participation rights, better
notice, application to all regulatees/ beneficiaries
at same time (instant compliance)
Increased costs: State Farm & other decisions
impose high costs on rulemaking process
Efficiency - Do not have to conduct never-ending
hearings (save time, money)
Efficacy - Higher quality answers b/c public can
participate through comments & provide input for
decisionmaking; forward-looking focus on policy
issues rather than idiosyncratic facts
Political accountability - Advanced notice, broader
participation rights, transparency of policymaking
process  public can alert Congress as to what
you are doing
Significant delays: Ct. decisions have made
rulemaking very slow [e.g. State Farm (adequately
explain & consider alternatives); Abbott Labs
(allow pre-enforcement review & require record
for ct. review); Nova Scotia Foods (disclose
reference materials)
Politically transparent: Agencies may not want to
be held politically accountable for their policy
decisions
No retroactivity: Agencies can’t issue retroactive
leg. rules but can announce/apply such rules in
adjudication (Georgetown, 1988)
Quality-higher quality due to broader input, focus
on policy issues rather than idiosyncratic facts, and
forward-looking instrumental approach.
d. Ways to promote efficiency during adjudication through rulemaking
i. Agency can create uniform guidelines
1. SCOTUS okayed SSA substituted mandatory use of the grid for expert testimony in a
high proportion of cases [Heckler v. Campbell]
2. **modest beneficial effects since most cases involve a complicated analysis of
degree/severity
ii. Agency can reduce transaction costs
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1. SCOTUS okayed HHS Sec's decision to require disability claimants to make a threshold
showing that their medically determinable impairments are severe enough to satisfy the
reg scheme [Bowen v. Yuckert]
a. 5-step decision making process. It instructs ALJ to stop after step 2 and to give a
negative answer unless ALJ determines that the individual has a severe
impairment
b. SCOTUS says okay because of leg history + language of the act
c. Increases efficiency and reliability of system, removing people from the process
earlier if they are unlikely to be found disabled
iii. Avoid adjudication through rulemaking
1. SCOTUS okayed FAA to have the discretionary power to establish a rigid policy, whereby
no exemptions are granted until it is satisfied that medical standards can demonstrate
an absence of risk factors in an individual sufficient to warrant a more liberal exemption
policy from the Age 60 Rule [Yetman v. Garvey]
a. Congress later repealed Age 60 law and changed it to Age 65
e. Making Rules Through Adjudication
i. An agency is free to act solely though use of case-by-case adjudication
1. An agency that has the power to issue rules through rulemaking process has the
discretion to use the traditional common law method of rulemaking instead, ie to
announce broad rules of conduct in the course of a particular adjudication and apply the
rules as binding precedent in subsequent cases [SEC v. Chenery Corp]
a. SEC published an order through adjudication allowing for a certain restructuring
procedure for organizations that are converting stock
b. Holding 2: An agency can take an action on remand identical to the action
reversed by the court if the agency can provide a different and legally
permissible basis for the action.
2. Post Cases are Confusing [Chenery is the Law]:
a. NLRB v. Wyman-Gordon Co
i. Involved a rule announced by an NLRB order in a prior case (aka
adjudication) requiring an underwear company to furnish a list of its
employees names and addresses to two labor unions
1. Wyman challenged the validity of the rule on the ground that
the NLRB had not satisfied the procedural requirements for
rulemaking under the APA
2. Plurality of 4 justices said that the Excelsior proceedings were
not adjudication but flawed rulemaking since the NLRB declined
to apply the rule to the party before it
3. Upheld the NLRBs order against Wyman-Gordon however on
the ground that the NLRB issued that order in the course of
Wyman's adjudicatory hearing
b. Morton v. Ruiz
i. Issue was whether the Snyder Act operated to deny general assistance
benefits to Native Americans living off but near to reservations
1. Court rejected a rule created through adjudication saying that
the determination of eligibility cannot be made on an ad hoc
basis by the dispenser of the funds
2. Suggests that reviewing courts can deny agencies a choice
between rulemaking and adjudication
c. NLRB v. Bell Aerospace Co
i. SC reaffirmed Chenery II and rejected any notion of repudiating its
holding
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ii. NLRB utilized an adjudicatory hearing to announce a broader rule of
general applicability, including that even workers properly classified as
managerial employees are nevertheless covered by the NLRA
f.
Applying Rules Retroactively
i. Remember, adjudication has a retroactive effect [See Scalia concurrence in Bowen]…can
rulemaking? NO
1. HHS Secretary issued a cost limit schedule that included technical changes in the
methods for calculating cost limits, applied them retroactively to hospitals and
attempted to recoup sums previously paid [Bowen v. Georgetwon University Hospital]
2. Court says rules cannot have retroactive effect, but agency can announce a rule during
adjudication with retroactive effect
a. Ask yourself: does rule attach present consequences to prior action??
g. Formal Rulemaking
i. APA §§ 556-557: Akin to judicial trial w/ pleading stage (proposed rule, written responses), trial
stage (testimony, documentary evidence, cross-examination), decision stage (formulating final
rule)
1. Applies: Only if agency’s statute requires rules to be made “on the record after
opportunity for agency hearing (§553)
2. Determination: Examine statute’s context, leg. history, or specific language
3. Requirements: Full oral evidentiary hearing (e.g. oral presentation, subpoenas, evidence
rulings, depositions, cross-exam) (§§ 556-557)
4. Supporters: Fairness, genuine opportunity to question, thorough record, meaningful
judicial review.
5. Critics: Time-consuming, costly, ineffective (e.g. 12 yrs to decide what % of peanut
butter ought to be peanuts)
6. Presumption: If statute requires action “after hearing,” only informal rulemaking is
required (FL East Coast, 1973) (ICC freight cars)
7. Ambiguity: It is reasonable for agency to interpret “hearing” to refer to written
exchange of views/data (Chem. Waste v. EPA, DC 1989)
***note that because of these procedures, most agencies required to do formal rulemaking abandon it altogether
ii. Florida East Coast
1. Case changes everything, since “hearing” just means informal rulemaking (see below)
h. Informal Rulemaking
i. APA § 553: General notice of proposed rule, opportunity to participate through written
submissions by interest parties, agency considers & then makes concise gen. statement of
basis & purpose, publishes rule
1. Applies: So long as agency’s statute doesn’t require rules to be made “on the record
after opportunity for agency hearing (§553)
2. Determination: Examine statute’s context, leg. history, or specific language
3. Requirements: Notice, right to submit written comments for review, concise gen.
statement of rules’s basis & purpose, published rule (see below)
4. Supporters: Responsive to interested parties, effective, efficient, flexible
5. Critics: Lack of transparency, increasingly time consuming & costly
6. Presumption: If statute requires action “after hearing,” only informal rulemaking is
required (FL East Coast, 1973) (ICC freight cars)
7. Ambiguity: It is reasonable for agency to interpret “hearing” to refer to written
exchange of views/data (Chem. Waste v. EPA, DC 1989)
ii. Until 1967, courts rarely reviewed agency rules that were issued through use of informal
rulemaking until….
1. Abbot Labs v. Gardner
a. New test determined if a rule was ripe:
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i.
i. Issues raised by the petititon for review are susceptible to judicial
resolution prior to the application of the rule in an enfrocement
proceeding
ii. Petitioner would be subject to hardship as a result of a deferral of
review
b. Led to a high proportion of agency rules ripe for review, also encouraged people
to file petitions for any rule they didn't like
i. Standard response from the agency is if you have a comment process,
then the notice would change based on that input ; if this wasn’t the
system, then it would be so cyclic that it wouldn’t be effective
ii. Challenge must assert:
1. Issue of central importance – must be of something (word)
actually disputed
2. Had challenger been given notice, they would have refuted it
(with what?)
c. Only used the record of the rulemaking proceeding to decide the case, which
was usually pretty flimsy--> a lot of rules got overturned
i. Judicial demands that agencies create more extensive records in
rulemaking proceedings began immediately
INFORMAL RULEMAKING REQUIREMENTS
i. Oral evidentiary hearings
1. Many rules were being vacated when an oral evidentiary hearing was not held
2. SC ended that practice with this case:
a. Vermont Yankee Nuclear Power Corp v. NRDC
i. NRDC wanted to change the rule requiring specified numerical values
for the environmental impact of a fuel cycle to be used in operating
license determinations without cross examine during hearings
ii. Court said that APA established the max procedural requirements
imposed by Congress, Court cannot impose any more
iii. Court held in later case that the courts must be very deferential in these
cases (Baltimore Gas v. NRDC)
ii. Lengthy NPRMs
1. Notice shall include
a. Statement of time, place, and nature of public rulemaking
b. Reference to the legal authority under which the rule is proposed
c. Either the terms or substance of the proposed rule or a description of the
subjects and issues involved
2. Most challenges to NPRM adequacy fall into two categories
a. Final rule diverged sufficiently from the proposed rule
b. Agency based a rule on data that was not know or made available to the
interested parties until the agency published the final rule
3. Either way deprived them of opp to submit meaningful comments
4. Relevant Cases:
a. Notice must “adequately foreshadow” final rule, and final rule must be “logical
outgrowth” of notice and comment process. [Shell v. EPA.]
i. NPRM did not include the two rules that were eventually published,
although EPA argued that the comments received anticipated both new
rules
b. Notice must refer to studies and other data sources on which agency will rely.
[Portland Cement.]
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j.
i. Issued an NPRM, got over 200 comments, and then issued a rule
without releasing the test methodology used to form the basis for the
emission control level adopted
c. But see American Radio Relay League Inc v. FCC
i. Concurrence: APA does not require the agency to disclose other
information as part of the notice or rulemaking process
ii. Portland Cement stands on shaky legal foundation-can't be squared
with language of APA or Vermont Yankee or APA
iii. Long detailed statements of basis and purpose
1. Agencies are required to explain the full factual and legal bases justifying their actions
and choices in the rulemaking process
a. Must respond to all relevant comments
2. Relevant Case Law
a. United States v. Nova Scotia Food Products Corp
i. Agencies certainly have a good deal of discretion in expressing the basis
of a rule, but the agencies do not have quite the prerogative of
obscurantism reserved to legislatures
ii. Need to show what major issues of policy were ventilated by the
informal proceedings and why the agency reacted to them as it did
1. One may recognize that even commercial infeasibility cannot
stand in the way of an overwhelming public interest
Ex Parte Communications in Rulemakings
i. APA 557 d 1 prohibits ex parte comm in FORMAL adjudications and rulemakings, but what about
INFORMAL?
1. Relevant Case Law
a. Home Box Office v. FCC
i. A number of participants before the Commission sought out individual
commissioners or employees for the purpose of discussing ex pare and
in confidence the merits of the rules under review here
ii. DC Circ invalidates rule because of ex parte communications not
disclosed in the record which formed the basis for the rule
b. Action for Children's Television v. FCC
i. ACT claims that the Commission's manner in creating rules was an
abuse of admin process by failure to solicit public comment on the
industry proposals for self-regulation negotiated behind the closed
doors of the Chairman’s office, where the industry was clearly coerced
into action by threat of FCC regulation
ii. HBO does ensure a whole record for review, but doesn't require the
Commission to sum/make available for public comment every status
inquiry ever received
1. HBO applies only to rulemakings in which 2 or more individuals
are competing for the same valuable right, like Sangamon
Valley where they gave every Commissioner a turkey
c. Sierra Club v. Costle
i. Efforts by the President and members of Congress to influence agency
decisions in rulemakings through closed door meetings with agency
decision makers
1. Court rejects that Presidential jawboning is illegal
a. “Nothing in the statute and nothing in the constitution
that would limit / require an agency to refrain from
engaging in an ex parte communication”
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ii. In 1979, EPA is deciding whether to set max emission of SO2 from coalfired generating plants at .55lbs/MMBtu or 1.2 lbs/MMBtu
1. Trying to be less foreign dependent, economic stagflation
iii. As long as the agency can explain its rulemaking decision based on the
public record, ex parte communications are acceptable
1. However if an agency changes a final rule based on something
that interested parties would not anticipate from the public
record, and if ex parte communications caused that change,
that would be objectionable
k. Bias and Prejudgment
i. Both the APA and due process require a neutral decision-maker
ii. Ass'n of National Advertisers v. FTC
1. Association said that the chairman of FTC was biased and had prejudged the issue
because he had been on tv saying that children’s ads were bad
2. Court holds: An agency member may be disqualified from a proceeding only where
there is a clear and convincing showing that he was an unalterably closed mind on
matters critical to the disposition of the rulemaking
a. Precedent: In Cinderella, we held that the standard for disqualifying an
administrator in an adjudicatory proceeding because of a prejudgment is
whether a disinterested observer may conclude that the decision-maker has in
some measure adjudged the facts as well as the law of a particular case
b. Dissent: Unalterably closed mind test is practically impossible to prove and
imposes too high a barrier to the public's obtaining fair decision-makers
3. Notes: Agency heads are usually appointed because of their previously expressed policy
commitments
a. ***No court has held that a decision-maker in a rulemaking is disqualified
l. Exemptions from Notice and Comment
i. APA 553 contains six exemptions from the informal rulemaking process
1. A party who dislikes a rule that an agency claims to be exempt typically argues that the
agency's rule is invalid for its failure to satisfy notice and comment requirements and
that the rule does not fall within the scope of the exemption the agency claims applies
ii. Types of exemptions
1. Subject Matter Exemptions
a. Involving military or foreign affairs function of the United States or a matter
relating to agency management or personnel or to public property, loans,
grants, benefits, or contracts
b. Military exemption not particularly controversial, interpreted very broadly
2. Agency management exemption (very controversial)
a. Sometimes still subject to mandatory use of informal rulemaking procedure
because Congress enacted the statute that authorized the agency to issue such
rules, or the agency itself issued a rule binding itself to use informal rulemaking
when it issues these types of rules
3. Good Cause Exemptions
a. 553 b B exempts rules when the agency finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public interest
b. Courts are stingy with their interpretation of the good cause exemption, unless
they believe that additional procedures would not have altered the outcome
i. Bodies piling up, emergencies, etc
4. Procedural Rule Exemption
a. There are frequent disputes in which an agency claims that a rule is exempt as a
rule of procedure and a party who dislikes the rule argues that is actually a rule
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of substantive rule that is invalid because the agency did not pursue notice and
comment
b. Erie like issues determining procedure v. substantive rules
5. Interpretative Rule Exemption
a. APA 553 b 3 A exempts interpretive rules from informal rulemaking procedural
requirements
b. Interpretive rules have no binding effect, they merely interpret statutes or leg
rules that are binding
c. Agency usually uses informal rulemaking process to make its most important
rules, and then issues large numbers of exempt interpretation rules to clarify
and particularize the requirements set forth in its leg rules
i. Leg rule: expands or creates scope of legal duty
1. Affecting individual rights and obligations
ii. Interpretative rule: can only clarify or particularize the scope of a duty
previously created
iii. SC wary of letting agency do everything through interpretative rules 
anti-parotting cannon
d. American Mining Congress v. Mine Safety and Health Admin
i. Whether Program Policy Letters of the Mine Safety and Health Admin,
stating the agency's position that certain x-ray reading qualify as
diagnoses of lung disease within the meaning of agency reporting
regulations are interpretive rules under the APA
1. Court says yes, a rule does not become an amendment merely
because it supplies crisper and more detailed lines than the
authority being interpreted
ii. ***Legal Effect Test (DC Circ, majority test): A rule is legislative is
1. Agency says is leg
2. Rule is published in CFR (but Court later said this is only a
snippet of evidence)
3. An enforcement action could not be brought without the rule
a. Very important, in this case only enforcement would be
against a mine owner who doesn’t report something
4. The rule amends a pre-existing legislative rule
a. In a later case, DC Cir says interpretative rule cannot
amend a pre-existing one, but that is clearly wrong
iii. Substantial Impact Test (Fifth Circ):
1. Whether the rule at issue is binding in that it imposes rights and
obligations on regulated parties
2. Whether the rule leaves the agency and its decision-makers free
to exercise discretion or, conversely, binds the agency as well as
regulated parties
6. Policy Statement Exemption
a. APA 553 b 3 A also exempts general statements of policy
b. Policy statements are not legally binding on members of the public or on the
courts, not subject to judicial review
c. Courts tend to be less deferential toward agency legal interpretation advanced
in policy statements
d. Pacific Gas and Electric Co v. Federal Power Commission
i. Federal Power Commission issued a statement of policy on priorities of
deliveries by jurisdictional pipelines during periods of curtailment
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ii. Court holds: General statements of policy are merely an announcement
to the public of the policy which the agency hopes to implement in
future rulemakings or adjudications
1. Serves several beneficial functions
a. Encourages public dissemination of the agency's policies
prior to their actual application in particular situations
b. Agency's initial views are not secret but disclosed well in
advance
c. Facilitates long range planning
d. Promotes uniformity in areas of national concern
2. Binding Effects or Legally Binding Test:
a. Matter of general policy but if the agency attempts to
give it legally binding effect or use it for any other
purposes – then it would not be (we will tell them they
can’t do this, which they later did)
i. Look to the language: must or suggest?
ii. Entitled to less judicial deference
e. Community Nutrition Institute v. Young
i. Challenge by a consortium of organizations and private citizens to the
FDA's regulation of certain unavoidable contaminants in food, most
particularly, aflatoxins in corn
1. The language employed by the FDA suggests that those levels
both have a present effect and are binding
ii. Community Nutrition Test:
1. Legally Agency cannot bind itself in a policy statement
2. A policy statement can only announce general policies that do
not actually bind the agency to act in accordance with the policy
statement
3. Agency must remain free to act in a manner inconsistent with
policy statement in a given case
f. Appalachian Power
i. Practically Binding Test:
1. Even if it is not legally binding, document may still be a
procedurally invalid leg rule so long as the reviewing court
determines that the document is practically binding
ii. Thought: Even if general statements of policy lack formal binding effect
on regulated party, they may still have coercive effects on regulated
party behaviorlikely to assume that this will be the rule and start
voluntarily changing their behavior
iii. ***difficult to apply, mix track record
VII. JUDICIAL REVIEW OF RULES
A. Arbitrary and Capricious ("Hard Look") Review
I. APA 706 2 a instructs reviewing courts to set aside agency action found to be arbitrary and
capricious
II. Courts began to vacate agency rules if they concluded that the statement of basis and purpose
that the agency incorporated in the final rule did not demonstrate that the agency had taken a
hard look at the issues and that the agency had not explained to the court's satisfaction why it
resolved each contested issue as it did
B. Evolution of the Hard Look Doctrine
i. Pacific States Box and Basket
1. A rule is arbitrary and capricious only if the party challenging it can demonstrate that
there is no set of facts and no plausible reason that might support it
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II. Automotive Parts and Accessories Association v. Boyd
1. Rule required all new passenger cars made in US to be factory-equipped with front seat
head restraints
2. Court upheld the rule on the basis that NHTSA's relatively brief statement of the rule's
basis and purpose was adequate, given the weak evidence and arguments the petitioner
had submitted in its comments in opposition
3. Court cautioned against an overly literal reading of the statutory terms concise and
general, realities of judicial scrutiny
III. National Tire Dealers and Retreaders Ass'n Inc v. Brinegar
1. Petitioner is challenging a standard that requires all passenger tires retreaded to have
certain information permanently molded into the sidewall of a tire
2. Rule was a&c where party challenging it submitted high quality studies by credible
consultants that rule was unnecessary and impracticable and agency did not respond
adequately to the studies
iv. Motor Vehicle Manufacturers Assn of US Inc v. STATE FARM Mutual Auto Insurance Co
1. ***known as the SC's endorsement of the hard look doctrine
2. Congress enacted the National Traffic and Motor Vehicle Safety Act of 1966 : directed
the Sec of Transportation to issue motor vehicle safety standards that are practicable,
shall meet the needs of motor vehicle safety, and shall be stated in objective terms
a. Agency went back and forth and then finally rescinded the passive restraint
requirement in 1982, saying that it was no longer able to find that the automatic
restraint requirement would produce significant safety benefits
i. Mostly because it could be detached and therefore not used nor
produce any safety benefits
3. First holding: When it comes to procedures and standards on review,
rescissionamendmentissuance of rule so SOR is A and C
4. Second holding: NHTSA was a&c for failing to consider air bag only alternative
5. Third holding: NHTSA was a&c for failing to explain adequately the difference between
its prediction that most drivers who didn’t buckle seat belts would disconnect automatic
seat belts and study that found that only 50% of drivers disconnected seat belts with
ignition interlocks.
1. Dissent: Appears that the agency's changed view of the standard seems to
be related to the election of new President of a different political party aka
perfectly reasonable basis for reappraisal of the cost and benefits of its
programs and regulations
6. Consequences: participants sent the message that they should propose alternatives
with support so Agency has to address them all! Now concise general statement of basis
and purpose are 200-2000 pages long and are reversed as a & c in 30% of cases
c. Judicial Review of CHANGED Policies
i. FCC v. Fox Television Stations, Inc
1. Fed Law prohibits the broadcasting of any indecent language; this case concerns the
adequacy of the FCC's explanation of its decision that this sometimes forbids the
broadcasting of indecent expletives even when the offensive words are not repeated
2. Test:
a. That the agency's new policy be permissible under the statute
b. That the agency have good reasons for the new policy
i. FCC acknowledged its recent actions have broken new ground
ii. Reasons for expanding scope of enforcement activity were entirely
rational
iii. Technological advance support enforcement policy
c. That the agency believe that the new policy is better, which the conscious
change of course adequately indicates
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VIII.
d. Ossification of Rulemaking
i. Hard look review led to agency reluctance to use informal rulemaking, too many procedures
to follow
1. Note: this is precisely the effect that the Court identified as one of its reasons for
forbidding courts from engaging in the practice the Court outlawed in Vermont Yankee
2. Congress has not acted on this issue
ii. Negotiated Rulemaking
1. 1990 Congress enacted the Negotiated Rulemaking Act, aka reg neg
a. Agency assembles reps of various interested parties for the purpose of
negotiating the proposed rule
i. Agency then publishes the negotiated proposed rule in an NOPR and
invites comments
ii. Never exclusive method of creating rules, controversial
iii. Use is declining, cost savings not realized by agencies
iii. Direct Final Rulemaking
1. Admin Conference of US also supported another variation of notice and comment
rulemaking known as direct final rulemaking as a means of reducing ossification and
speeding up agency rulemaking
a. Issuing regulations in fed registers with a notice that they will become final if no
comments received within a certain period
iv. Remand without Vacatur
1. Less drastic measure than reversing or setting aside an agency decision
a. Remand the reg for further agency action while allowing the rule to remain in
effect-remand with vacator or without vacation
b. Reversal may interrupt agency efforts or regulated parties that have already
arranged their affairs
2. **Note this lowers agency incentive to change the rule
STATUTORY INTERPRETATION IN ADMIN LAW
a. Kind of Statutes
i. Statutes of general applicability
1. Statutes the agency is not charged with implementing
2. Reviewing courts do not confer any special deference on agency interpretations of
statutes of general applicability
ii. Statutes Agencies Administer
1. Congress has delegated some amount of admin authority to one or more particular
admin agencies
2. Question is whether the task of statutory interpretation differs when an agency adopts
an interpretation of a statue it is responsible for administering
b. Courts have APA instruction to decide all relevant questions of law
i. Seems to suggest that the courts should ignore agency interpretations of the statutes they
administer
ii. Yet statutes are often susceptible of more than one reasonable interpretation, and choosing
between the alternatives may be as much a matter of policy choice as of discerning statutory
meaning
c. Court’s review of Statutory Interpretation
i. CHEVRON DOMINATES
ii. Pre-Chevron Approach
1. NLRB v. Hearst Publications
a. Case arises from the refusal of newspaper publishers to bargain collectively with
a union representing newsboys who distribute their papers on the streets of LA
b. Principal question is whether the newsboys are employees because Congress
did not explicitly define the term
17
c. Holding
i. Where the question is one of a specific application of a broad statutory
term in a proceeding which the agency administering the statute must
determine it initially, the reviewing court's function is limited
ii. The Board's determination that specific persons are employees under
this Act is to be accepted if it has warrant in the record and a
reasonable basis in law
d. Dissent: this is an issue of law that should be resolved through application of
case law
e. ***SCOTUS vacillated between dissent and majority for decades
2. Skidmore v. Swift and Co
a. Employees were firefighters, who received salaries for their working time at the
fire hall but also stayed the evenings to be on call
b. Court upholds Office of Administrator’s interpretation of waiting time as
working time
c. Skidmore TEST:
i. Weight of such a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all the those
factors that give it power to persuade, if lacking power to control
d. **Note: Different than NLRB, since the Wage and Hour Division in this case did
not possess authority to adminster the Fair Labor Standards Act
3. Industrial Union Dept AFL-CIO v. American Petroleum Institute (the Benzene Case)
a. The litigation concerns a standard promulgated by the Sec of Labor to regulate
occupational exposure to benzene, a substance which had been shown to cause
cancer at high exposure levels
b. Secs explanation includes voluminous record of the dangers of exposure to
benzene levels at 10 ppm+ but does not provide direct support for the Agency's
conclusion that the limit should be reduced from 10 ppm to 1 ppm
c. Holding: The statute requires that the Sec find that the toxic substance in
question poses a significant health risk in the work place and that a new, lower
standard is therefore reasonably necessary or appropriate to provide safe or
healthful employment and places of employment
d. IF BENZENE HAD BEEN DECIDED UNDER CHEVRON:
i. Court would say Congress has not decided the particular question and
the decision was not reasonable
ii. Rehnquist’s approach (Statute unconstitutionality delegates
fundamental policy decisions to politically unaccountable bureaucrats)
was inconsistent with Chevron
iii. Plurality is also inconsistent (political unaccountable justices attribute to
Congress something that it did not say & favor that view over agency
iv. Uphold agency decision (deference)
e. What Should the Court do When Faced with Scientific Decisions?
i. What should judges do when they don’t understand?
ii. Immerse herself in substance until she understands the issues?
iii. Require the agency to “ventilate” the issues through the use of
procedures like oral hearings until the judge is sure that the agency
understands the issue and can make supportable findings of fact
iv. Defer to the agency in light of its superior expertise and inherent
uncertainty in answering the relevant questions [4 dissenting justices in
Benzene]  but Congress wanted courts to do more than to rubber
stamp agency decisions
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iii. CHEVRON REVOLUTION BABY
1. Chevron USA Inc v. Natural Resources Defense Council Inc
a. Issue: Whether the EPA's decision to allow States to treat all of the pollution
emitting devices within the same industrial grouping as though they were
enacted within a single bubble based on a reasonable construction of the stat
term stationary source
b. Facts:
i. CAA requires an elaborate permitting process before anyone can
construct or modify a new “source” of air pollution
ii. Until EPA issue the rule at issue, it had defined source to refer to each
piece of combustion equipment and CAA set it so that you had to get a
permit every time you had to change a source
iii. Since the definition was so cumbersome, wanted to introduce bubble
concept, where everything together would be considered one source
iv. Opponents said this wasn’t the reason for slow economic growth and
would not have a net beneficial effects on air quality
v. In the opinion of the EPA in both the Carter and Reagan
administrations: definition was harming both the economic and air
quality by making it difficult to replace old high pollution equipment
with new lower polluting equipment
c. Procedural History:
i. DC Cir: said EPA gave thought to the source definition and when it was
challenged, the court upheld it, so the EPA can’t come back and
redefine source without convincing the Court there has been a big
change
d. Holding
i. Congress didn’t say anything about this aspect of the meaning of
“source,” so an agreement between everybody
ii. Politically unaccountable judges should not be making policy decisions
 defer to politically accountable agency decisions
iii. Since Congress did speak to the issue, statute is ambiguous
iv. Believed that the new interpretation in this case would improve air
quality
v. Court believed that was reasonable and upheld it
2. Debating the Chevron Theory
a. Scalia
i. Relying on agency expertise may be a good practical interpretation, but
it is not a good theoretical one
ii. Courts have the competence to consider and evaluate policy
iii. Congress now knows that the ambiguities it creates whether intentional
or unintentional will be resolved within the bounds of permissible
interpretation, not by the courts but by a particular agency, whose
policy biases will ordinarily be known
b. Pierce
i. Congress typically leaves the vast majority of policy issues for resolution
by some other institution of gov't: POLITICAL ACCOUNTABILITY IN
CHEVRON
ii. Agencies should be doing interpretations since they are more
accountable to the electorate (unless arb and cap)
iii. When applying Chevron's first step, the court should refrain from
teasing meaning from the statute's ambiguous or conflicting language
and leg history
19
iv. Chevron Two-Part Test:
1. Did Congress directly speak on the precise question at issue?
a. If yes, then end of matter
2. If the statute is silent or ambiguous with respect to the specific issue, the question for
the court is whether the agency's answer is based on a permissible construction of the
statute
a. If Congress has explicitly left a gap for agency to fill, then can't be set aside by
court unless arb and cap
b. Sometimes implicit instead of explicit
c. What makes an agency interpretation reasonable?
i. The interpretation is within the range of definitions the statutory
language will support, and the agency has adequately explained the
reasons for its choice of interpretations ala State Farm
v. Tools of Step One Analysis
a. Plain Meaning Rule
i. Dictionary definitions-clear communication
ii. Except some dictionaries are different or have multiple word meanings
b. Leg History
i. Voluminous, unreliable, illegitimate
ii. Opposed by Scalia and Thomas
c. Leg Purpose
i. Statutes usually have multiple, sometimes contradictory purposes
d. Canons of Construction
i. Constitutional avoidance, rule of lenity (criminal law, favor the D)
e. Stare Decisis
i. SD directly contradicts the Chevron presumption that Congress
delegated primary interpretive authority over certain statutes to
agencies rather than the courts
vi. Implications of Chevron: APPLIES TO LEGISLATIVE RULES AND FORMAL ADJUDICATIONS
[Mead, 2001]
1. In a future EPA, in an admin with a different philosophy, returned to the earlier
definition of source and gave plausible reasons for doing so, a court would have no
choice but to uphold
a. If they don’t do something that’s explicitly contradicted by the statute, then
most judges who are politically accountable have to agree with it
2. It follows that a judicial opinion in which a court upheld an agency interpretation of a
statute constitutes binding precedent only in the rare case in which the court concluded
that the interpretation adopted by the agency was the only permissible interpretation.
The Court announced that logical rule in Brand X (2005).
vii. CHEVRON TODAY
1. 1984-2000 Chevron had an enormous effect on Circuit Courts [but not Supreme Courts]
– Supreme Court has decided like 250 cases while Circuit Court has decided thousands
2. Varied in whether they applied two step or footnote 9
3. When Chevron Applies
a. Highly deferential Chevron test applies to legislative rules
i. Chevron applies to notice & comment (informal) rulemaking & formal
adjudication (Mead, 2001)
b. Unclear if Chevron deference applies to interpretive rules, policy statements,
informal adjudication
i. Chevron deference may apply based on “all facts & circumstances”
20
ii. Customs classifications: Do not warrant Chevron deference b/c
thousands are made by low-level personnel w/o underlying reasons or
precedent value.
4. Skidmore expertise deference applies when Chevron does not (Mead, 2001) 
Deference will be afforded depending on consideration of certain factors:
a. Did agency carefully considered interpretation at a high level?
b. Is agency’s interpretation persuasive
c. Is interpretation expressed in published reg/reasoned adjudicatory opinion, or
in formal letter?
d. Does agency have expertise in this area?
e. Is interpretation consistent w/ past interpretations? (Chevron deference does
not require consistency)
5. Dependents on affiliation:
a. Liberal justices will say Chevron applies while conservatives will say that it
doesn’t
i. Justice Stevens spoke about the opinion in Chevron [he was author] 
he himself didn’t know the implications of his opinion, probably didn’t
read it if it was written by a clerk
ii. Outspoken critic of Justice Breyer: Connection to Marbury v. Madison
[concept of judicial review]
iii. Breyer and Scalia: Breyer is the most deferential Justice on the court
[even though he was an outspoken critic of Chevron]; however, Scalia
votes to overturn agency interpretation of statutes most frequently
[even though he was an outspoken proponent of Chevron]
iv. Judges generally form their own opinion about what’s right and wrong,
so very hard for them to defer to the agencies
6. Article on Empirical Studies: What Do the Studies of Judicial Review of Agency Actions
Mean?
1. Six Doctrines
1. Chevron (2 step test)
2. Skidmore (weight of judgment depends on thoroughness of consideration of
agency)
3. State Farm (arb and capricious SOR)
4. Consolidated Edison Co v. NLRB
1. Substantial evidence doctrine-what supports decision in record
what detracts from it
2. Virtually identical to State Farm doctrine
3. Tech applied only to agency findings in formal adjudications->informal adjudications and informal rulemaking
5. Auer
1. Applies to agency interpretations of rules rather than agency
interpretations of statutes
2. Admin interpretation is of controlling weight unless plainly
erroneous or inconsistent with the regulation
6. De novo review
2. Studies find 70% affirmance rate for agency decisions-more deferential than not
1. Little variation in the outcome of cases based on doctrine
2. In deciding whether an agency action is reasonable a court always asks the same 3
questions
1. Is the agency action consistent with relevant statutes?
2. Is agency action consistent with the available evidence?
21
3. Has the agency explained adequately how it reasoned from the relevant
statutory language and the available evidence to the conclusions it reached
3. What Factors Can Explain the Patterns of Decisions?
1. Procedures used to produce the agency decision
1. Little if any effect on rate of judicial affirmance of agency actions, ie notice
comment rule-making v. adjudication
2. Agency consistency over time
1. Higher affirmance for long standing agency positions v. newly adopted
agency positions
2. Small difference though
3. Extent of judicial comfort with SM
1. Court has long emphasized comparative institutional advantage and
specialized agency expertise as bases for its deference doctrine
2. DC Circ affirms agencies that appear before it 12% less, prob because they
have better understanding of SM
4. Ideological perspectives of the judges and Justices
1. Most important factor
2. Liberals uphold agency decisions more than conservatives
5. Panel effect
1. Whether a circuit court panel consists of three judges of same political party
or of a mixture of judges of different political parties
2. Most likely to uphold an agency action when the action is consistent with
the ideological preference of the members of the panel than when the
action was inconsistent with those preferences
3. Why
4. Don't want to be whistle blower, or don't want someone to write a
scorching dissent against them, and collegiality
4. Is the DC Circ Different?
1. Decides 25%+ of agency action review but overturns more of them
2. Greater familiarity with SM, especially with agencies they review a lot
3. Process of appointing judges different than in other circs, President can make
nominations of his own choosing many go onto the SC
4. Less crowded docket, more time to decide and explore cases
5. ADVICE TO PRACTIONERS:
1. Spend less time on doctrine, more time on consequences of action + if for P, bring in
DC Circ
2. Post Chevron and Its Scope
1. Between 1984 and 2000, Court never said anything about the scope of Chevron
2. Applied it to interpretations adopted legislative rules and in formal adjudications  BUT lower
courts differed re: whether it applied to interpretative rules, policy statements, informal
adjudications, advisory letters, amicus briefs, etc
1. Could lead to the slippery slope of Chevron applying to anything and everything
associated with the agency interpretation
3. The Court has addressed the scope several times since 2000 – but the only thing that comes out
clear is that the Court differs
4. Rapanos v. US
1. Facts: Clean Water Act confers on the EPA jurisdiction over the “waters of the United
States” (not navigable waters, just any water)
1. Depending on that, it can or can’t be regulated by the federal government – EPA
interpreted it broadly for a long time
2. Used reasoning that even if there was no water in a place for 11 months, and
could be for 1 month as an important place for migratory birds – then you
22
would have to regulate it to protect it over the year so that the waster CAN
gather for one year
2. Holding: the only natural definition of the term waters, our prior and subsequent
judicial constructions of it, clear evidence from other provisions of the statue and the
Court's canons of construction confirm that the term cannot bear expansive meaning
3. ***Circuit Courts have interpreted this decision in three completely different ways, law
depends on what circuit you’re in
4. Overall Theory:
1. Four justices who are generally considered liberal  go with Chevron
2. Four justices who are generally more skeptical  say no and go with canons of
construction
3. Until now, EPA has been going on a case by case adopting a broader and
broader definition  what they should do is conduct notice and comment
rulemaking
5. Christensen v. Harris County: Chevron does NOT apply to interpretative rules or policy
statements – Skidmore still applies
1. Court upholds county policy re: mandatory use of compensatory time under FLSA
1. FLSA is not agency administered its judicially administered
2. In some circumstances, there were conditions for the comp time as a potential
substitute for wages
2. Refuses to defer to contrary DOL interpretation announced in opinion letter
3. Chevron applies to interpretations announced in formal adjudications and legislative
rules, but not in interpretative rules or policy statements [so it doesn’t apply here]
1. Skidmore applies : statute is silent on this issue and because Harris County's
policy is entirely compatible with the statute, petitioners cannot prove that
Harris County violated the statute
4. Pierce Opinion: It takes so long for an agency to issue a leg rule or to conclude a formal
adjudication that adoption of the Christensen test would create a situation in which
each President has no choice but to implement many of the policies of his predecessor
even when he disagrees strongly with those policies
6. United States v. Mead Corp: Chevron does not apply to Customs Services Classification
1. Question: whether a tariff classification ruling by the US Customs Service deserves
judicial deference
2. Mead Test:
1. Whether Congress gave the agency power to issue leg rules even if the agency
did not adopt the interpretation at issue in a leg rule
2. Extent of the public participation in the decision making process
3. Degree of formality of decision making process
1. In this case, the process is so far removed from notice and commenting
process, and any other circumstance reasonably suggesting that
Congress even thought of classification rulings as deserving the
deference claimed for them here
4. Precedential effect of interpretation
5. Whether it binds 3d parties
6. Whether agency provided explanation
7. Status of the individual who adopted the interpretation
3. Skidmore applies-vacate and remand for determination of persuasiveness
4. Scalia criticizes the majority test as “utterly flabby” and “virtually open ended” [Pierce
agrees with this]  he would apply Chevron to any agency interpretation that
represents the authoritative view of the agency
7. National Cable & Telecomm Assn v. Brand X Internet Services
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1. Whether the FCC conclusion that cable companies that sell broadband Internet service
do not provide telecomm service and hence are exempt from mandatory common
carrier regulation is a lawful construction of the Communications Act
2. Holding: A prior judicial decision interpreting a statute is binding precedent only if court
concluded that the interpretation adopted was the only permissible interpretation of
the statute
3. 4 justice plurality holding in Home Concrete 2012
1. Not unambiguous is not the same as ambiguous, so Brand X does not apply
2. Um what? How is the court going to apply this in future?
2. What is the difference between Chevron and Skidmore?
1. Unless it’s a rule where the majority has said whether Chevron has applied or not
2. If you’re arguing for the agency, you always argue for Chevron deference first and THEN use weaker
Skidmore test to show deference still applies
3. Chevron first asks whether Congress addressed the issue at hand
4. Skidmore says these agency decisions don’t have the power to bind, but they had the power to
persuade  look at thoroughness of the reading (isn’t that just Chevron, State Farm)
5. Skidmore’s last factor – the consistency of the agency’s interpretation matters // Chevron said
consistency doesn’t matter ; Skidmore takes into account a broader sweep of considerations
1. In theory is deferential because courts must eval the agency's interpretation by reference to the
various factors and may not reject the agency's interpretation solely because it differs from their
own preference
6. Would the Court have decided Chevron the same way if they had applied the Skidmore test?
1. Asked first if Congress had resolved the issue – all sides agreed it did not
2. If it was ambiguous, questioned whether the agency had a permissible reasoning for
interpretation
3. If it were to apply Skidmore, would say they were not bound [Chevron said courts don’t have
any discretion, but if they adopt agency standards then its binding] agency explanation is
persuasive
1. Look at the thoroughness of the reasoning
2. Because the agency changed its interpretation, the Court might have rejected it because
it wasn’t consistent
3. Maybe it would have been 5-4 or come out the other way
4. Chevron involved a change from prior longstanding interpretation
5. Does a subsequent President get to return to the prior interpretation of the rule?
3. Agency Interpretation of Agency Regulations
1. Auer/Seminole Rock: Extremely Deferential Test
1. An agency’s interpretation of its legislative rule must be upheld unless “plainly erroneous or
inconsistent with the regulation”
2. Agency cannot apply interpretation of an ambiguous rule in a penalty case unless it has
provided “fair warning” of its interpretation
1. Due process concerns
3. Importance that the regulatee have notice of the interpretation – regulatee wins in the penalty
context only
4. ***Hinted in 2012 Case Christopher that Justices may be open to overturning Auer since it just
leads to agencies creating ambiguous rules
2. Gonzalez v. Oregon Can’t afford deference if rule merely parrots the statute
1. Pierce says this makes sense but there has never been a “no parroting rule”
2. AG cannot interpret statute or rule to bar statute from allowing doctors to prescribe drugs to
assist a patient in committing suicide
3. Auer deference is not due to an interpretation of a rule that merely “parrots” a statute
1. If you parrot the language of the statute then you lose access to the court deference
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2. Agency has tried to circumvent notice and comment procedure by issuing parrot and
then relying on interpretations that don’t require notice + comment
3. It’s all a matter of degree – how far beyond the language of the statute has the agency
gone in particularizing
4. NO CHEVRON:
1. CSA does not grant the AG to broad authority to promulgate rules, only for those
relating to registration and control and for the efficient execution of his functions under
the statute and this interpretive rule does not fall under this function
5. SKIDMORE: applies because they are basically just interpreting the statute BUT deference again
inappropriate because AG lacks expertise and didn't consult with anyone outside the DOJ
IX. JUDICIAL REVIEW
a. Three categories of limitations on judicial review of agency action
i. Reviewability generally: which agency actions are subject to judicial review
ii. Four overlapping doctrines that limit time at which agency action is subject to judicial review:
finality, ripeness, exhaustion, and primary jurisdiction
iii. Standing: who can obtain judicial review of an action
X. JUDICIAL REVIEWABILITY
a. Until 1960's an agency action was not reviewable unless a statute authorized judicial review or a statute
commanded or prohibited an agency action in such a clear and unambiguous manner that a court was
willing to characterize the action as ministerial and non discretionary
b. Then SC began to greatly expand reviewability
i. Abbott Lab v. Gardner
c. APA embodies the basic presumption of judicial review, which Congress can and does limit
i. 701 a 1- statute precludes review
ii. 701 a 2- action committed to agency discretion at law
d. 701 a 1: Many regulatory statutes contain judicial review provisions with language that clearly or
arguably limits reviewability
i. How broadly or narrowly should these be read?
e. Express Preclusion
i. If the statute clearly and unequivocally precludes all judicial review of an agency action,
then the courts will generally give the statute effect
ii. Tend to be particularly narrow of claims to obtain judicial review violations to the
Constitutional rights of petitioners
iii. Johnson v. Robison
1. Facts: a conscientious objector draftee served alternative service at a hospital was
denied veteran's educational benefits because he didn't serve on active duty
2. Court applies avoidance canon as basis for decision allowing constitutional
challenge to statute even though statute precluded review
3. Statute was indistinguishable between the people who provide alternative
service versus those in the military – have constitutional right to the same
benefits (SC said reviewable)
4. Statute would have to say “no judicial review of constitutional validity of this
statute”
iv. Califano v. Saners
1. SC explicitly stated that constitutional questions obviously are unsuited to
resolution in admin hearing procedures and therefore access to the courts is
essential to the decision of such questions
2. Court also said that it might read a statute as precluding judicial review of
constitutional claims if Congress' intent to foreclose review is manifested by clear
and convincing evidence
f. Implied Preclusion
i. Block v. Community Nutrition Institute
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1. Whether ultimate consumers of dairy products may obtain judicial review of milk
market orders issued by the Sec of Agriculture
2. In this case, Congress did not intend to strip the judiciary of all authority to review
Sec's milk market orders but only gave this reviewability for handlers, after they
had exhausted all of their other remedies
a. Because they were so explicit about this, it is clear that their omission of
reviewability for consumers is sufficient reason to believe that Congress
intended to foreclose consumer participation in the regulatory process
ii. Presumption favoring judicial review is a presumption which can be overcome, not only by
explicit language but what is implied by Congress:
1. Presumption is very variable depending on how court applies it
2. Structure of the statute as a whole
3. Specific language or specific legislative history that is reliable indicator of
congressional intent
4. Can be inferred from contemporaneous judicial construction barring review
5. Collective import of leg / judicial history
6. Doesn’t have to be “clear and convincing,” can be “fairly discernible”
7. **WEAKER than Robison
iii. Bowen v. Michigan Academy of Family Physicians
1. Whether Congress barred judicial review of regulations promulgated under Part B
of Medicare program
2. Contrary intent must be expressed, mere failure to provide specially by statute for
judicial review is certainly no evidence of intent to withhold review
3. Only upon a showing of clear and convincing evidence of a contrary legislative
intent should the courts restrict access to judicial review: Abbott Labs
4. The mere fact that some acts are made reviewable should not suffice to support an
implication of exclusion as to others
5. Statute that precludes review of benefit decisions unless agency has finally
denied benefits does not preclude review of eligibility rules
6. Note: Court in Bowen refused to draw a similar inference from statutory silence
concerning the reviewability of doc challenge to Medicare Part B as they did in
Block
g. 701 a 2: Committed to Agency Discretion
i. The limitation on reviewability imposed by APA 701 a 2 when agency action is committed to
agency discretion by law is cryptic and ambiguous
ii. Citizens to Preserve Overton Park, Inc v. Volpe
1. Overton Park in Memphis was approved by Sec to get a highway through it cutting off
the Zoo, provided no statement of factual findings that explained what was required by
the Acts
a. We agree that formal findings were not required, but we do not believe that in
this case judicial review based solely on litigation affidavits was adequate
2. The Sec's decision here does not fall within the exception for action committed to
agency discretion
a. Very narrow exception, applicable in rare instances where statutes are drawn in
such broad terms that in a given case there is no law to apply
b. In this case the Act gives clear and specific directives with plain and explicit
language
c. The very existence of the statute indicates that protection of parkland was to be
given paramount importance
3. A and C SOR
h. Overlap between 701 a 1 and 2:
i. Reviewability of FHA Decisions Allowing Rent Increases for Federally-Subsidized Housing
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i.
1. Public housing program involved in both cases here—tries to encourage private
developers to build housing that’s designed to house poor people and does that by
providing subsidies to make those buildings available to poor people
a. Accept rate regulation as the quid pro quo
b. Congress recognized in that program that over time the cost of making housing
available could go up, so the property has to be available at a regulated rate but
you can apply for an obtain an increase in that regulated rate
2. HUD will review rent increase request, HUD will make a decision
a. Both cases involve situations in which tenants objected to rent increases
ii. Hahn v. Gottlieb
1. First Circuit was asked to review a decision by HUD to allow an owner of a Title 8
property to increase the rent it charged tenants
a. Housing statute was silent with respect to reviewability of HUD decisions to
allow increases in rent charged
2. Held that these decisions were unreviewable because they were committed to agency
discretion by law
a. Courts lack expertise needed to evaluate HUD decisions
b. Courts may unintentionally cause more harm than good
c. Availability of judicial review of rent increases may harm poor people by
deterring prospective investors from investing in title 8 properties
iii. Langevin v. Chenango Court
1. Second Circuit court criticized First for Hahn case
2. Noted that court has long reviewed agency decisions analogous to HUD decision; statute
just happened to be silent about this reviewability
3. Criticized the conclusion that rent increase decisions were committed to HUD's
discretion
4. Thus, rejected the argument that APA 701 a 2 operated to deny reviewability in such
cases
a. Yet the 2nd Circuit continued by agreeing with the policy concerns expressed
and by holding that HUD decisions authorizing rent increases are not
reviewable because Congress implicitly precluded review of such decisions
within the meaning of APA 701 a
REVIEWABILITY TODAY
i. Overton Park one of the last to reflect the old attitude, then increased the role of courts in
prescribing decision-making procedures agencies were required to us
ii. Then began to issue opinions in 1976 in which it reduced the role of the courts in that process
1. Reduced power and scope of the presumption of reviewability
2. Still exists, but weaker and narrower than in Overton Par
iii. Heckler v. Chaney case (comes later)
1. Clearly separates exception provided by 701 a 1 from 701 a 2
iv. Webster v. Doe
1. National Security Act provides that the Director of CI may, in his discretion, terminate
the employment of any officer or employee of the Agency whenever he shall deem such
termination necessary or advisable in the interest of the US
2. CIA Director terminates homosexual without providing reasons, hearing, etc.
a. Holding 1: Statutory review is not available because decision is committed to
agency discretion by law:
i. “in his discretion . . . whenever he shall deem . . . advisable . . .” –
“no law to apply;”
1. high deference, appears to foreclose the application of any
meaningful judicial standard of review
ii. Structure of statute;
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j.
iii. Context.
b. Holding 2: Avoidance canon allows constitutional review.
i. Court split 7-2 relies on Robison— avoidance canon, even though
Congress told courts to stay out it hasn’t told them to stay out even in
the context of constitutional validity in the ambiguity
3. Scalia dissent: I do not see how a decision can, either practically or legally, be both
unreviewable and yet reviewable for constitutional defect
a. APA 701 a 2 refers to common law of judicial review of agency action that
certain issues and areas are beyond the range of judicial review
i. Political question review
ii. Sovereign immunity
iii. Official immunity
iv. Prudential limitations
v. Equitable powers
vi. Traditional respect for the functions of other branches
b. Also includes a determination whether the decision involved a sensitive and
inherently discretionary judgment call, and whether review would have
disruptive practical consequences
c. Congress has the power to tell the Court to stay completely out of a class of
disputes including a class of constitutional disputes
v. Lincoln v. Vigil
1. Congress had long appropriated funds for health and education of Native Americans and
the agency had used a big chunk of that money to run a particular program which it
then abandoned
2. Beneficiaries of that program joined by members of Congress go to court—can’t do this,
once you have started using a chunk of appropriations for that program you cannot
abandon it without giving an explanation
3. Supreme Court disagrees—unless it’s in the language of the statute they have discretion
over this
4. Agency decision to defund a program is committed to its discretion unless Congress
has limited that discretion by statute (if it doesn’t say agency must spend it on X, it has
discretion to spend it on what it will)
5. If a member of congress the only way to insulate yourself from this is through
inclusion of earmark in the legislation
Judicial Review of Agency Inaction
i. Until 1975 SC routinely held that agency decisions not to investigate and agency decisions not to
bring an enforcement action when the agency has reason to believe that someone has
committed a violation of law within its jurisdiction are committed to the agency’s unreviewable
discretion
1. ***Comes from British doctrine prohibition of review of prosecutorial decisions
ii. Confiscation Cases (1868)—court cannot compel US Attorney to prosecute clear violation of
law even though statute is mandatory
1. Statute at issue was clear—it instructed the representatives of the federal government
to confiscate assets in certain circumstances (government shall…)
a. Has something that fits within the scope and the government declines to
prosecute it
b. Someone goes to court to demand they prosecute
c. Court reads statue as if it gives the government the discretion to confiscate or
not to confiscate
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iii. Enforcement Discretion: Agencies have discretion over whether to investigate or take
enforcement action given limited resources & funding & the need to prioritize decisions &
respond to competing pressures & such decision are generally unreviewable.
1. Relevant Case Law:
a. Dunlop v. Bachowski
i. Situation: prod agencies to take actions that they are reluctant to take,
does the presumption of reviewability apply to agency inaction as well
as agency action? Have to overcome ancient principle of prosecutorial
discretion in criminal cases
ii. FACTS: LMRDA requires DOL to set aside election if it finds probable
cause that winner engaged in illegal tactic that affected the outcome
(uses the word “shall”)
1. Bachowski claims to have been victim of illegal tactics and asks
DOL to act, DOL refuses
iii. 3d Cir. Reverses and requires DOL to provide both a hearing and
reasons for not acting: Presumption of reviewability trumps common
law
1. Statute protects private rights rather than public rights
2. Statute couples “shall” with justiciable standard ; probable
cause is a justiciable standard
iv. Holding: DOL Sec.’s decision subject to judicial review, albeit narrow
A&C (Sec. required to provide rational reasons, but not hearing)
1. Congress wanted to create decision-making process that would
not cast long-term cloud over union leadership.
v. ***In the LMRDA, a court must ask instead whether an agency has so
much evidence of wrongdoing that it was required to make a probable
cause determination
b. Shelley v. Borck
i. DC circ held that the agency was require to initiate an enforcement
action in response to the complaint since the agency expressed its belief
that the conduct at issue was unlawful
ii. Many circ courts interpret Bachowski broadly and ordered agencies to
take actions they did not want to take, until this case:
c. Heckler v. Chaney: Courts cannot compel enforcement action
i. Facts: Opponents of death penalty petition FDA to prohibit use of
prescription drugs for lethal injection on basis that they are not “safe
and effective” for that use. FDA denies petition.
ii. DC Cir. applies presumption of reviewability (Overton Park, Abbott
Labs, Dunlop) & FDA policy statement re off-label use to compel FDA to
act.
iii. Holding: S. Ct. reverses. Under 701(a)(2), agency inaction is presumed
to be unreviewable on the basis that it has been “committed to agency
discretion.”
1. Recognition of reality that there’s no agency that has resources
sufficient to allow it to act in every single case (further, factors
that induce agency to act in one case but not another very
complicated)
a. Involves a complicated balancing of a number of factors
within its expertise: whether violation occurred, where
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resources best spent on this violation or another,
whether likely to success, whether it fits within agency’s
overall policies, and whether the agency has enough
resources to undertake the action at all
2.
BUT presumption can be rebutted if statute indicated an
intent to circumscribe agency enforcement discretion, and has
provided meaningful standards for defining the limits of that
discretion.
3. Here, there is “law to apply” under 702(a)(2) and courts may
require that the agency follow that law; if it has not, then
agency refusal to institute proceedings is a decision “committed
to agency discretion by law” within the meaning of that section
iv. NEED language of command (“shall”) coupled w/ justiciable
standard (treat Dunlop as meeting rebuttal reqs., thus reviewable –
Prof. disagrees)
1. Presumption can be rebutted only by statute or leg. rule
2. Policy statements cannot rebut
a. Not binding;
b. Now many agencies won’t issue leg. rule w/ law to
apply b/c want to avoid review
v. Interpretive rule can’t compel reviewability, but agency could have an
ambiguous leg. rule that was interpreted to impose on it a duty to act
in circumstances specified by leg. rule
iv. Discretion to Regulate: Cts. aren’t second-guessing agency’s allocation of scare resources but
reviewing outcome of agency’s voluntary decision after it has already chosen to devote
resources to rulemaking
1. § 553(e): “each agency shall give an interested person the right to petition for the
issuance, amendment, or repeal of a rule,” and when such petitions are denied give “a
brief statement of the grounds for denial.”
2. Ct. can review decisions not to issue rule after rulemaking
a. NRDC v. SECU (DC 1971)
i. Facts: Environmentalists & civil rights groups want SEC to require all
corps. to include in their reporting very detailed reports on their
environmental & employment practices. SEC conducts a rulemaking but
only issues a decision requiring compliance statement
ii. Holding: Decision not to issue a rule AFTER conducting rulemaking is
reviewable-already spent resources
3. Refusal to amend rule subject to deferential review
a. American Horse Protection Assn. v. Lyng (DC 1987
i. Facts: Congress passed statute banning “soring” and tells DOA to
implement ban. DOA defines soring to exclude use of light weights but
promises to expand ban if Auburn study finds that light weights cause
soring. Auburn study so finds. DOA to expand definition of soring. DOA
refused and AHPA sues.
ii. Holding: Agency decisions to refuse to issue or amend a rule in response
to a petition are subject to deferential A&C review. Such a refusal will
only be overturned in “the rarest and most compelling circumstances”
v. Why is this different than failure to enforce?
1. Rulemaking inaction is different from enforcement action b/c:
a. Less frequent than decisions not to act in adjudications (thus won’t overburden
ct.)
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b. Often focus on law (here, definitional Q), rather than complicated set of factors
that agencies consider when deciding where to allocate their resources (thus ct.
has some understanding of issue)
c. APA § 553: Whenever agency denies petition for rulemaking, requires agency to
give reasons for denial  provides basis for review.
d. Decision not to initiate a rulemaking is rarely overturned
vi. Mass v. EPA (1 of only 3 cases in which petitioner got review & WON)
1. Global warming case where the holding of Lyng soring case was applied and approved
2. SC applies AHPA test in context of petition to EPA to initiate rulemaking to determine
whether and to what extent to limit auto emissions of CO2 to mitigate global warming
3. It is now easy to get review of denial of petition for rulemaking but very difficult to get
court to vacate decision
vii. Current Legislation in the House : Reigns Act: No agency rule can go into effect unless and
until it is enacted as a statute by Congress (eliminates the role of agencies, turn agencies into
the staff of Congress); add 63 new procedures to the Notice and comment rulemaking
procedures; redefine rules so it applies to interpretative rules and policy statements  agenda
of Congress
a. Probably will be enacted by the House but no chance it’ll pass the Senate or
President
XI. TIMING OF JUDICIAL REVIEW
a. In order to be reviewable, agency action must be
i. FINAL
ii. RIPE
iii. EXHAUSTED ALL OTHER ADMINISTRATIVE REMEDIES AVAILABLE
b. FINAL AGENCY ACTION
i. Agency must have concluded its decision making process
ii. Decision must have formal legal consequences
iii. APA §704 makes final agency action subject to judicial review
iv. Franklin v. Massachusetts (Reapportionment case)
1. Facts: Appellees (Mass.) lost a seat in the House of Reps after appellants (Pres., Census
bureau officials, Sec of Commerce, and Clerk of House of Reps) allocated overseas
military personnel to the State designated in their personal files as “home of record”
a. Altered the state populations so significantly that Mass lost a Representative
seat to Washington.
2. Holding: The final action complained of here is an action of the President, and because
he is not an agency within the meaning of the Act there is no final agency action that
may be reviewed.
a. Agency action is not final if it is only “the ruling of a subordinate official or
tentative” like not the Secretary’s report to the President aka NO LEGALLY
BINDING EFFECT
3. Congress overruled first holding in Franklin by statute  DOC’s Census Making
decisions are subject to judicial review, Congress can say that an agency action is final
or even if its not, its reviewable
v. Dalton v. Specter
1. Facts: President made decision to close a naval shipyard in Philly pursuant to the
Defense Base Closure and Realignment Act of 1990.
2. The president’s decision comes at the end of an elaborate process prescribed by the Act.
a. **Note different from Franklin here-Pres can only say yes or no not ad hoc like
above
3. Two days before President submitted his certification of approval to Congress,
respondents filed suit.
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4. Holding: Actions of the Secretary and Commission cannot be reviewed under the APA
because they aren’t “final agency actions” and carry no consequences
a. The final action was by the President, and his actions cannot be reviewed
under the APA because he isn’t an “agency”
b. President is not subject to non-statutory review because he did not violate any
statutory command or prohibition
5. Concurrence: Congress designed it this way so it wouldn’t be reviewable
vi. Bennett v. Spear : Court used a new two part test for determining whether an agency action is
“final agency action” under APA §704
1. Facts: ESA (Endangered Species Act) requires that federal agencies insure that any
action they take isn’t likely to threaten the existence of any endangered species, Fish
and Wildlife Service will then provide the agency with a written statement explaining
how species affected
a. **Note Final with the fact that the Fish and Wildlife agency is through with
decision making sense, but it has no formal legal effect unless BLM acts on it
and changes the release schedule of dam in conformance with opinion
2. Holding: The Service’s opinion here constitutes a “final agency action” because it has
direct and legal consequences; change in legal status counts but powerful indirect
effects do not (think second hand smoke)
a. Two Part Test:
i. Action must mark the consummation of the agency’s decision making
process (it can’t be tentative or interlocutory)
ii. Action must be one by which “rights or obligations are determined” or
from which “legal consequences will flow”
3. ***This is how it differs from Franklin and Dalton:
a. In Franklin, Secretary’s report on census was more like a tentative
recommendation
b. In Dalton, the closure recommendations to the President were not binding on
him because he had discretion to reject or accept them
vii. Which Decisions Under FIFRA are “Final” – Agency Two Step Process of Cancellations &
Suspensions
1. Might be situations where an agency (EPA) makes an error and it won’t make sense to
wait years to complete the cancellation hearings
2. Cancellation requires a finding that costs exceed benefits after elaborate procedures
that take years v. suspension requires finding of imminent harm after few, if any,
procedures and can be done quickly
a. Decision to initiate cancellation proceeding? Yes – not final / No – reviewable &
final / In action – not final
b. Decision to suspend pending outcome of cancellation proceeding? Yes
[completed process w/concrete effect] / No – [could be characterized as
intermediate step] / Inaction – unreviewable
c. Decision to Cancel? – Yes – final / No – final / In action – not reviewable
3. Circuits are divided on everything
a. Finality doctrine could apply to almost anything
c. Ripeness for Judicial Review
i. Grounded in common law, not APA
ii. Assures issues are sufficiently developed for judicial review
iii. Abbott Laboratories v. Gardner
1. Before Abbott, most agency rules could only be reviewed in the context of an action to
enforce the rule, very few rules were challenged – the only record was the record in the
enforcement action and the agency almost won
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2. Facts: In 1962 Congress amended the Federal Food, Drug and Cosmetic Act, to require
manufacturers of prescription drugs to print the “established name” of the drug
prominently, Rx sued before rule was final
3. Three Part Test:
a. Did Congress intent to preclude pre-enforcement review when it provided an
alternative route to review? (presumption of reviewability applies)
i. Congressional intent must be shown by clear and convincing evidence
b. Are issues appropriate for judicial resolution at this time and in this abstract
context?
i. If purely legal, more ripe for review
ii. If factual, wait to see how law is applied
iii. Mostly, they’ll always be ripe for review
c. Would petitioner suffer hardship if review is deferred?
i. In this case, absolutely yes because drug companies would either have
to comply with a potentially invalid rule or violation of the rule and
enforcement action which will cost a lot of money and PR
ii. ***NOTE: DC Cir. doesn’t apply this part of Abbotts lab test, based on a
belief that that a court should resolve any issue that is appropriate for
pre-enforcement review in a pre-enforcement review proceeding no
matter what might be the adverse effects of deferral of review.
4. ***NOTE: Plaintiff can typically persuade court to engage in pre-enforcement review of
a rule to determine whether the agency provided an adequate notice of proposed
rulemaking or whether the agency’s statement of basis and purpose contains a
thorough explanation of the agency’s reasoning process to overcome a claim that the
issuance of the rule is arbitrary and capricious.
iv. Post Abbott Labs: most major rules are now challenged as arbitrary and capricious, and a high
proportion are challenged on the basis that the agency didn’t provide adequate notice.
1. Abbott labs remains the law but with some major qualifications:
a. Reno v. Catholic Social Services, Abbott does not apply to benefit eligibility rules
b. Thunder Basin Coal Co. v. Reich, Congress implicitly precluded pre-enforcement
review of a regulatory rule by providing an alternative route to review
c. Shalala v. Illinois Council on Long Term Care, Justices disagree re-existence of
presumption of reviewability, strength of presumption, and whether there is a
presumption of pre-enforcement review
2. Some statutes require pre-enforcement review
3. Courts demanded a “record” in the form of the notice, comments, and statement of
basis and purposeProvides incentives for lawyers to submit voluminous documents
v. Toilet Goods Ass’n v. Gardner
1. “Free access rule” If the FDA determines that you violated the right of free access to
your facility, they may revoke certificate – is that ripe for review?
a. 1st part = Same statute as Abbott, so it does not preclude pre-enforcement
review
b. For second part, can characterize as an issue of law – can the FDA insert a right
of free access? 4th amendment constitutional issues – what does the agency
mean about the right of free access? Yet still in this case, extremely fact based
so it’s not appropriate for judicial review under the abstract concept
c. No change in day-to-day business
i. Only thing that could happen is revocation of certification  yet that
would mean the company is out of business [court blows this off but
it’s really important]
ii. No adverse consequences that would result from requiring a later
challenge to the regulation.
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vi. Temporal Limits
1. Sometimes society would be better off if we got a quick answer, so Congress can limit
time to file for pre-enforcement review
2. Adamo Wrecking – Congress can limit to 30 days within which anyone can seek review
of an emissions standard, but petitioner can obtain review of whether rule qualifies as
an emissions standard
a. Rule was issued as an emissions standard for Clean Air Act for companies that
demolish buildings
b. Adamo Wrecking claims it didn’t know about the emissions standard and sues
for the preclusion within only a 30 day window
c. Adamo argues that it isn’t an emissions limit (instead of the window) – they’re
allowed to make that challenge  30 day limit only applies to issues that
would be ripe for resolution by a court
3. Limits uncertainty and the agency would know quickly
4. If the issue was not ripe when the rule was issued, review is available within 30 days of
ripening of issue [have to file the petition within 30 days]
d. Duty to Exhaust Administrative Remedies
i. Reasons for Exhaustion (Judge Made)
1. Avoid premature interruption of agency decision-making process
2. Allow agency to develop and resolve factual issues
3. Allow agency to exercise discretion
4. Allow agency to apply expertise
5. Enhance efficiency
6. Avoid burdening agencies and courts
7. Respect agency autonomy
8. Deter parties from sandbagging
ii. APA 704(c) says final action is reviewable unless statute or rule requires resort to intra agency
review process
1. Cannot be compelled to exhaust this particular remedy as a prerequisite to judicial
review
2. Have to restructure rule to say “shall” exhaust everything instead of saying “may
exhaust” – statute has to have mandatory requirement
iii. McKart v. United States
1. Can a sole surviving son raise the invalidity of his 1-A classification as a defense when he
didn’t appeal his reclassification, which constituted a failure to exhaust available
administrative remedies.?
2. Holding: Application of the exhaustion doctrine in this circumstance wouldn’t be
appropriate.
a. Administrative remedies are no longer available;
b. Hardship in criminal context;
c. Issue did not involve fact-finding, discretion, or expertise
d. Others are not likely to be as foolish as McKart.
iv. But see McGee v. United State
1. Facts: Petitioner was a conscientious objector and had applied to the agency board for
“conscientious objector status,” was rejected, didn’t seek appeal but then didn’t appear
for physical
2. Holding: Petitioner’s failure to exhaust administrative remedies bars his defense of
erroneous classification because in this case his claims turned on resolution of factual
questions which required the expertise and discretion of agency’s appeal board
v. McCarthy v. Madigan
1. Facts: McCarthy was a prisoner who filed complaint against 4 prison employees alleging
that they had violated his rights under 8th amendment by their deliberate indifference to
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his needs and medical condition resulting from a back operation/history of psych
problems.
2. Issue: Is a federal prisoner required to resort to internal grievance procedures set forth
by the Fed Bureau of Prisons before he may initiate a suit (pursuant to Bivens) solely for
money damages.
3. Holding: Congress has not required exhaustion of a federal prisoner’s Bivens claim¸ and
given the type of claim McCarthy raises and the particular characteristics of the
grievance procedure, his individual interests outweigh the countervailing institutional
interests.
a. Prisoner seeking money damages has everything to lose and nothing to gain
from being required to exhaust claim under internal grievance procedure.
4. NOTE: Congress overruled McCarthy by statute in 1997, as Court recognized in Booth v.
Churner in 2001. There are no judge-made exceptions to a statutory duty to exhaust.
a. What if the prisoner requests one remedy beyond the scope of power for the
Bureau of Corrections = monetary damages
b. Congress said their intent was to get them out of the courts anyway, still must
exhaust all remedies
c. Even though exhaustion doctrine began as prudential judge made doctrine, it
can be trumped at any time by statut
vi. Woodford v. Ngo (2006): Petitioner can’t wait until time period runs out to file for review
1. Statute requires exhaustion of “available” remedies does not permit petitioner to wait
until after time to use remedy expires and then seek review.
a. Court cannot excuse a failure to exhaust when Congress has required
exhaustion by statute
b. Has statute that says in a certain class of cases, you must exhaust all available
administrative remedies, which are only available for a discrete time period
2. Petitioner waits until the day after the remedy time period is extinguished
3. Pierce agrees with majority who cited his treatise
e. Issue Exhaustion: requires petitioner to raise an objection to an agency action at each stage in the
agency decision making process as a pre-req to the petitioner’s ability to convince a court to consider the
objection.
i. Darby v. Cisneros (don’t overestimate its significance, applies to only intra-agency review)
1. HUD said anyone anytime is accused of violating the rules, they would refer the case to
an ALJ- who will determine the appropriate penalties
a. This is a final decision,
b. However, anyone that disagrees can appeal to the Secretary of housing and
development
2. HUD hearing examiner debarred Darby.
a. Darby then tried to go directly to court
b. HUD argues that he did not exhaust his available remedies (because he didn’t
appeal to the Sec)
3. Court says that although this appeal was available, the agency didn’t say that it was
required as a prerequisite for review
a. Citing: APA §704(c) says final action is reviewable unless statute or rule requires
resort to intra-agency review process.
b. Precludes agency from saying a procedure is optional, then when you don’t
pursue optional procedure, claiming that you have not exhausted your
remedies
f. Agency Delay
i. APA § 706(1) authorizes a court to compel agency action unreasonably delayed, but it is almost
impossible to win an unreasonable delay case in the absence of a statutory deadline.
1. Mandatory statutory deadline cases are easy in theory, but impossible in practice.
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a. Easy in theory: Congress can set deadlines on agency action
b. Hard in practice: Congress does not know problems/priorities of agency
i. FOIA requires action w/in 20 days, but FBI is 20 yrs behind
c. Enormous problem with no real solution –not judicially solvable
d. Norton v. Southern Utah Wilderness Alliance (2004)
i. Agency was supposed to evaluate ALL the property owned by the
federal government, figure out how it is now classified, and reclassify
them, someone filed a 706 (1) claim
ii. Only discrete and mandatory acts can be subject to 706(1) or subject to
review
iii. Only can compel the agency to act for the action that was
unreasonably delayed / can’t tell agency they have to implement a
program
ii. § 706: Potential remedies
1. Ct. can order agency to act if action “unreasonably delayed”
a. But so many reasons for delay possible: resources, procedures
b. P must prove it’s “unreasonable” for agency to have allocated resources in such
manner that has caused delay in other priorities  violates Chaney b/c cts.
incompetent in telling agencies how to prioritize
2. TRAC case—setting forth 6 part test to determine whether agency action has been
unreasonably delayed
a. the time agencies take to make decisions must be governed by a “rule of
reason”
b. where Congress has provided a timetable or other indication of the speed
w/which it expects agency to proceed, the statutory scheme may supply context
for this rule of reason
c. delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake
d. the court should consider the effect of expediting delayed action on agency
activities of a higher or competing priority
e. the court should also take into account the nature and extent of the interest
prejudiced by delay; and
f. the court need not find any impropriety lurking behind agency lassitude in order
to hold the agency action is unreasonable delayed
g. Primary Jurisdiction
i. When should a court dismiss a case or defer decision in a case to allow an agency to address an
issue that is within its expertise? Consider relative expertise, clarity of issue, need for national
uniformity and effects of delay
ii. Even if court appropriately evokes the issue and then an agency issues a rulemaking process on
the issue – they might take years to decide
iii. Because of concerns of delay, practice of routinely requesting amicus briefs has displaced
referring issues to agency
iv. If a court encounters such a case it cannot resolve definitively and the agency is in a better
position to apply their expertise – then court’s job is to identify the issue, defer resolution and
send it to the agency
XII. Standing
a. 77% of studies show that 77% of decisions on standing can be explained on political grounds
b. Question asked: If an action is reviewable, is it reviewable by this party?
i. Complicated combination of constitutional reasoning, statutory reasoning, prudential reasoning
and unstated decisional factors unrelated to the question of who has standing
c. Requirement:
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i. Action must be reviewable under the timing doctrines, P must have a specific legal interest that
isn’t too speculative, attenuated or abstract
ii. Constitutional: Injury in Fact, Causation, Redressability
1. SC has interpreted “Case” and “controversy” requirement of Article III as limiting
standing to those P’s who satisfy 3 elements
a. P must establish that she has suffered an “injury in fact”
i. Concrete and particularized injuries count, but abstract and
generalized injuries do not.
b. P must demonstrate a causal connection between her injury and the conduct
that gives rise to her complaint (aka injury must be fairly traceable to the
challenged action of the D)
i. Speculative or indirect causal relationships do not count.
c. P must show that a decision by the courts in her favor will likely redress her
injury
iii. Prudential / Statutory: Zone of Interest test
d. Constitutional Requirements of Standing
i. Association of Data Processing Service Organizations Inc. v. Camp : Generalized Threat of
Competition
1. ADP seeks review of Comptroller of Currency decision to allow banks to provide data
processing services to their customers
2. Holding: Competitive injury was injury in fact
a. Competition from national banks they might entail future loss in profits.
3. Two Part Test:
a. Part I = Constitutional : injury in fact
b. Next question is statutory – did Congress intend to allow data processing
companies to challenge decisions of this type
i. Have to prove that the agency had invaded your statutory rights
ii. If the statute said “anyone who’s adversely affected” – well if you
qualify under the injury in fact test, then you would qualify under
statutory test
iii. Relevant provision of APA = have standing if “adversely affected or
aggrieved” within meaning of statute
1. Court believes this brings competitor with the zone of interest
protected by it.
ii. Allen v. Wright
1. Facts: Parents of black public school kids allege that the IRS has not adopted sufficient
standards and procedures to fulfill its obligation to deny tax exempt status to racially
discriminatory private schools. They claim that this harms them directly and interferes
with the children’s ability of their children to receive an education in desegregated
public schools.
2. Holding: They do not have standing because the injury in fact is not fairly traceable to
the Government conduct challenged as unlawful.
a. The line of causation between that conduct and desegregation of public schools
is attenuated at best.
b. Diminished ability of the children’s to receive a desegregated education would
be traceable to unlawful IRS grants of tax exemptions only if there were
significant amount of private schools receiving tax exempt status to make
difference in public school integration
3. Dissent: The injury in fact is traceable to the government conduct! Question of
economics
iii. FEC v. Atkins
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1. Facts: FEC determined that the AIPAC is not a “political committee” and therefore FEC
has refused to require AIPAC to make disclosures regarding its membership,
contributions, expenditures, etc that FECA would otherwise require.
2. Holding: Yes, a group of voters (w/views often opposed to those of AIPAC) seek to
pursuant the FEC to treat AIPAC as a “political committee” have standing.
a. Congress has explicitly provided in FECA that “any person who believes a
violation of this Act has occurred, may file a complaint with the Commission”
…”Any party aggrieved by an order of the Commission dismissing a complaint
filed by such party may file a petitioner”…
b. There was an injury in fact suffered bc of the voters inability to obtain
information (list of AIPAC donors, campaign related contributions etc).
3. INFORMATIONAL INJURY: injury suffered by every voter is a judicially cognizable injury
if Congress has created a right that applies to every voter and an agency has acted in a
way that interferes with that right, distinguishing Schlessinger and Richardson (see
below)
4. Court recognizes informational injury because of the nature of the statute
iv. NO TAX PAYER STANDING
1. United States v. Richardson
a. Court held unanimously that neither taxpayers nor voters have standing to
challenge refusal of the government to make public the details of the CIA
budget (Arguably in violation of Article 1 Section 9 Clause 7)
2. Schlesinger
a. Const. says no one can hold simultaneously more than one position in the
branches, injury is too abstract and generalized
b. Taxpayers and voters cannot challenge arguable violation of constitutional
prohibition on anyone holding office in two branches in context of large
numbers of Senators and Reps who are members of military reserves
v. TAX EXEMPT STATUS OF HOSPITALS:
1. Simon v. Eastern Kentucky Welfare Rights Association
a. Poor petitioners rejected for treatment by tax exempt hospitals cannot
challenge adequacy of IRS method of enforcing prohibition on tax exempt status
of hospitals that refuse to provide service to poor people because they cannot
prove that the particular hospital’s policies were a function of their tax
exempt status  No Causation
vi. Linda R.S. v. Richard –
1. Mother of children who were entitled to child support could not challenge DA’s
refusal to prosecute father because she could not prove that the father would have
paid rather than go to jail for several years
a. State has a law that it’s a crime to refuse to make child support payments
b. Injury exists but no causal relationship
c. Four justices read concurring opinions like majority opinion in Heckler v. Chaney
 Court cannot order agency’s exercise of enforcement discretion
vii. ***Note: All decided before Heckler v. Chaney
1. No cases like this after that case because prosecutorial discretion is unrefutable and we
don't know anything about it
2. They can do whatever they want to prosecute
e. Environmental Standing
i. ADP (1970) recognizes “injury in fact” economic or otherwise but the Court said it needed to
satisfy case in controversy, that the injury could be economic
ii. Sierra Club (1972) – explicitly recognizes environmental and other aesthetic injuries as injuries
in fact as long as an individual member suffers an injury of this type – someone who hikes in or
near a wilderness area is injured by an agency action that permits the development of the area
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iii.
iv.
v.
vi.
vii.
but someone who is merely offended by knowing of such a decision in an area he doesn’t use
lacks standing
Can they get to court just by saying they’re an organization dedicated to preserving the
environment – this would injure us by harming the environment
1. The court says this is too broad but the injury can be an aesthetic injury – if they were
to come back with someone who used the area and would be harmed by the new
regulation, then that creates standing
2. Concrete in that the injury must be tied to a particular individual who is a member of
the organization
Justice Scalia’s Battle to Cut Back on Environmental Standing
1. Scalia says Take Care Clause permits only the President to enforce environmental laws
and precludes a court from interfering with the President’s discretion.
Common Standing Cases:
1. Membership organization – union, trade association, public interest files petition for
review relying on derivative standing; relies on evidence on agency record and affidavits
from members to support its claim
2. Association has standing to bring suit on behalf of its members when
a. Its members would otherwise have standing to sue in their own right
b. The interests it seeks to protect are germane to the organization’s purpose AND
c. Neither the claim asserted nor relief requested require the participation of
individual members in the lawsuit
Lujan v. National Wildlife Federation (1990) – Geographic Vicinity Case
1. Invokes §10(a) of APA which has 2 requirements
a. Person claiming right to sue must identify some FINAL “agency action” that
affects him in the specified way
i. Program to be challenged is not final agency action, but rather
continuous operations of re-classifying land across country – can’t seek
wholesale improvement of program by court decree
b. Must show that he has suffered “legal wrong” b/c of the challenged agency
action, or is “adversely affected or aggrieved” by that action w/in the meaning
of the relevant statute
i. To be “adversely affected or aggrieved” must establish that injury
complained of falls w/in “zone of interests” sought to be protected by
the statutory provision whose violation forms the legal basis for the
complaint
ii. In this case:
1. Adverse effect/aggrievement meets zone of interests b/c
statutes implicated were designed to protect recreational use
and aesthetic enjoyment
2. BUT Claim that one member of respondent’s organization uses
unspecified portions of immense amount of land does not show
actual effect
c. ****Scalia persuaded majority to make modest incremental change – add in a
geographic proximity requirement for environmental standing disputes
Lujan v. Defenders of Wildlife – Geographic Requirement, temporal proximity
1. Most federal environmental statutes have citizen suit privileges [can file a private action
against anyone who violates the rule or provisions of the statute] “shared by all,” like
Akins
a. Wanted court to decide the statutory interpretation
2. Court finds: Such a citizen suit provision is unconstitutional as applied
a. Statute says any citizen has a right to sue, so even when Congress has conferred
standing on a group of people [all citizens] it has overstepped its bounds
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3. Petitioners who planned to visit asian leopard and nile crocodile in indefinite future
lacked temporal proximity [as well as geographic requirement]
4. Ecosystem Nexus theory – that anyone who used any part of a “contiguous ecosystem”
is adversely affected = inconsistent with National Wildlife Federation (must be
geographical proximity); Animal Nexus – anyone with an interest in studying or seeing
endangered animals; Vocational Nexus – anyone with a professional interest = ABSURD
a. ***Concurring justices don’t embrace this completely
5. Injury was not redressable both because the agency might not comply and because
Egypt and Sri Lanka might go forward without US funding
a. Pierce thinks these arguments are silly, idea that the agency might not comply is
ludicrous
b. Egypt and Sri Lanka is more plausible, rarely would they provide a large portion
of the funding
6. Take Care Clause precludes Congress from authorizing courts to interfere with
Presidential discretion to enforce public laws
7. Petitioner claiming procedural injury need not show that procedure will change
outcome, but must show that he has a substantive interest at stake
a. 2 Justices concur without accepting reasoning of pluralit
b. 3 Justices would grant standing but deny petition on the merits
8. *First case where Court held petitioner lacked standing even though Congress explicitly
granted the petitioner standing
9. *First case where Court applied the redressability requirement in a manner that was
independent of the causation requirement
a. *Redressability requirement is satisfied if it is “likely” that a judicial decision
would redress the petitioner’s injury
10. *First case where the Court discussed the availability of standing in cases in which a
petitioner alleges that it has been injured by an agency’s failure to provide a procedure
to
viii. Steel Co. v. Citizens for a Better Environment
1. Facts: where court decided whether an association of individuals interested in
environmental protection had standing to bring action against manufacturing company
for violation of the Emergency Planning and Community Right to Know Act (EPCRA) and
whether the EPCRA authorizes suits for purely past violations (when the company
found out they were in violation, they promptly disclosed all the overdue PW).
2. *There is a “citizen-suit provision” which allows anyone to submit an action on his own
behalf
3. Holding: Need not deal with whether being deprived of info that should have been
disclosed under EPCRA is a concrete injury – b/c case, even assuming injury, fails on
redressability since respondent cannot be reimbursed for losses caused by late
reporting/or eliminate any effects of the late reporting.
i. A declaratory judgment is useless as the information has already been release
ii. A civil penalty/damages would go to the U.S. Government (who chose not to
bring suit) – not to the organization
iii. That a favorable judgment would make the “injured” party happier is not
enough to satisfy redressability
iv. Payment of costs would benefit organization BUT can’t achieve standing to
litigate substantive issue by bringing suit for the cost of bring suit
ix. Friends of the Earth, Inc. v. Laidlaw Environmental Services
1. Facts: where Clean Water Act authorized citizen-suit provisions for either injunctive
relief or civil penalties
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2. SC says can’t conflate initial standing to bring suit with post-commencement mootness –
here compliance did not occur until after the suit began, penalties may serve to deter
future violations
a. Injury Alleged: Affidavits that company neighbors cannot fish, camp, swim, in
river because are concerned about pollution – fear is reasonable
b. Redressability:
i. All civil penalties have some deterrent effect – and reason for penalties
is retribution and deterrence in addition to restitution
ii. Steel Co only established that citizen suitors lack standing to seek civil
penalties for violations that have abated by the time of the suit –
doesn’t apply to allegations ongoing at time of complaint
c. Mootness
i. Would only become moot if subsequent events made it absolutely clear
that allegedly wrongful behavior could not reasonably be expected to
recur
ii. Here, voluntary cessation of wrongdoing does not mean that company
will not restart that wrongdoing in the future
3. Dissent (Scalia): No demonstrable harm to environment yet finds injury – makes injury
in fact requirement a sham, violation of federal standing principles
4. Why this case is important
a. Drastically changes the nature of the injury the petitioner must establish
i. Now, don’t need to prove actual harm to the environment, hire experts,
very high cost just establish that he has hanged his conduct based on
“reasonable fear” that the illegal emissions rendered his prior conduct
dangerous to his health
ii. Drastically changed approach to proof of redressability – interpreting
Steel Co very narrowly AND equating redressability with deterrence
x. Massachusetts v. EPA –
1. Environmental organizations, states, and localities petition to review EPA decision
refusing to begin rulemaking to regulate emissions of carbon dioxide from autos.
2. Five-Justice majority holds that Massachusetts has standing. Focuses solely on
Massachusetts interest as sovereign in loss of its coastal land
a. ****Unprecedented that court gave special, preferred status to a State
3. Case or Controversy Requirement
a. Qualifies – dispute about proper construction of congressional statute – doesn’t
seek an advisory opinion, adjudication of political question, wasn’t mooted by
subsequent developments
4. Standing – they have
a. Normally would need concrete or particularized injury, actual or imminent,
injury that is fairly traceable to D, and redressability
b. BUT when Congress accords procedural right to protect concrete interests,
don’t need to meet immediacy and redressability standards
1. Litigant vested w/ procedural right has standing if there is some
possibility that the requested relief will prompt the injurycausing party to reconsider the decision that allegedly harmed
the litigant
c. States are not normal litigants – quasi-sovereign capacity gives them special
standing status but if they own some of the land where injury is being caused,
strengthens their cause further
5. Final Result:
a. Court can review agency decision to deny a petition for rulemaking
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f.
b. EPA refusal to initiate rulemaking to set such emissions limits was arbitrary and
capricious
6. Dissent: Dissent says injury is too generalized and is pure conjecture, limits on emission
have miniscule impact on global warming (shows shift in composition of court –some
Justices move back to Scalia’s side
xi. Summers v. Earth Island Institute (2009)
1. Five justice majority holds that environmental organization lack standing even though
their millions of members use all of their national parks and the rules they seek to
challenge will be applied to all national parks
2. Dissenting justices argued that high probability of injury should be enough to support
standing
Prudential Standing and the “Zone of Interests”
i. Prudential limitations that go beyond requirements of CON standing
1. Plaintiffs may assert their own injures BUT aside from associational standing principles
already discussed, 3rd parties don’t have standing on basis of other’s injuries
2. To based standing on burden of taxation, b/c it is injury shared by all taxpayers, must
show more direct and individualized injuries than just status as taxpayers
ii. Legal Rights Test
1. Pre-APA the Court used test to determine whether petitioner had standing to obtain
review of an agency action – depended critically on language of the statute authorizing
the agency action
2. If silent on standing, Court applied legal right test = very difficult to satisfy
3. Alexander Sprunt & Son – where Court found that although agency action had caused
economic harm to shipping company, they had no standing b/c:
a. The statute conferred upon shippers a legal right only to reasonable service at
reasonable rates w/o undue discrimination (they weren’t asserting violation of
this)
i. *Note: Old rates may also have been statutorily permissible – in which
case the agency action would have been unlawful – but Court refused to
examine case
b. Judicial reversal of the agency order would be futile since carriers could keep
new rates on voluntary basis anyway
i. *Note: This point is formally accurate but was irrelevant – no company
would choose to use the new rates – so could have gotten redressability
from court
c. Criticized for circular reasoning aspect – Court considered whether party’s claim
had merit in order to decide whether party was entitled to have merit’s
considered
iii. BUT, if statute seemed to authorize more liberal test, Court allowed:
iv. Adversely Affected Test:
v. FCC v. Sanders Bros. Radio Station – where FCC granted license to competing radio station in
same area
1. S.Ct. says petitioner has no right to be free from competition, but it has standing
because statute confers standing on anyone who is adversely affected or aggrieved by
an FCC order
2. Congress can confer broad standing on “private attorney generals” to help insure that
agencies comply with the law
vi. Zone of Interests Test
1. Whether the interest sought to be protected is arguably within the zone of interests to
be protected or regulated by statute that is basis for the claim or constitutional
guarantee
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2. Broad Conferral of Standing: even broader than the economic harm/adversely affected
test b/c also encompasses “aesthetic, conservational, and recreational” concerns
3. Look back on ADP above: based on APA 702 (bank case during enacted during
depression that limited banking to banks, who do you think Congress was trying to
protect?)
a. ****Circuit Split
4. Clarke v. Securities Industry Ass’n – where there was dispute over whether a discount
brokerage office was a branch w/in the meaning of the McFadden Act (and thus
whether specific discount brokerage offices could be opened). Trade association
representing brokers, underwriters, and I-Bankers brought suit. Comptroller argued
that respondents lacked standing b/c they were not win zone of interests protected by
the McFadden Act (which serves to establish competitive equality between state and
national banks – not protect securities dealers)
5. Holding: Trend towards enlargement of class of people who may protest admin action –
excluding only those not arguably w/in the zone of interests to be protected by statute
a. Consider congressional intent BUT Petitioner need not prove specific intent to
protect interests at stake
i. Don’t just consider McFadden Act – should be considering context of
National Bank Act on the whole
b. Respondent was proper party to bring suit
6. Air Courier Conference of America v. American Postal Workers Union, AFL-CIO –
a. Facts: where Court decided that postal employees were not w/in the zone of
interests of the Private Express Statutes – which codify the USPS monopoly on
carriage of letters. USPS had suspended PES for purposes of int’l remailing –
and postal workers filed suit.
b. Court: Petitioner must prove intent to protect its interests
i. Legislative history doesn’t show goal to benefit workers
c. Notes: Cuts back significantly on Clarke w/o overruling the specific holding
i. This case makes congressional intent central to analysis, declines to look
at entire statute
7. Nat’l Credit Union in 1998 – re-expands zone of interest [GOOD LAW]
a. Petitioner need not prove to protect its interests
b. Petitioner is arguably in zone if a victory would further its interests
i. Since statute limits market credit union can serve, and since banks were
asserting interest in limiting markets credit unions can serve, the banks
had interest protected by the statute
c. Dissent: Party will always have interest w/in zone of interests – b/c no one will
bring suit unless has some benefit effect on their interest. Here, statute did not
intend to protect banks.
XIII.NON-DELEGATION DOCTRINE: Congress and Agencies
a. Agency Rulemaking
i. Most consists of exercise of legislative power delegated to agencies by Congress
ii. Congress authorizes/mandates that agencies promulgate rules/regs to accomplish statutory
purposes and impose penalties upon regulated parties who fail to comply
iii. Arguably violation of Article I of CON (all legislative powers herein granted shall be vested in
Congress)
b. Agency Adjudication
i. Often exercise of judicial power
ii. Congress authorizes agencies to adjudicate rights/obligations of regulated parties under
statutory provisions
iii. Arguably violation of Article III of CON (judicial power shall be vested in SC and such inferior
courts . . .) and right to trial by jury
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c. S. Ct. interpreted Art I to prohibit Congress from delegating the power to make policy, but applied it
only to invalidate one statute in 1935.
i. Two step view of looking at govt making rules that cannot be delegated to someone else  but
here, the vast majority of policy decisions are made by agencies
ii. Court originally upheld statute as delegating only the power to determine the factual predicates
for application of policies chosen by Congress
iii. As soon as that no longer worked, Court upheld as filling in the details of policies
1. “interstitial policy making” is okay as long as Congress is making the big decisions
iv. As soon as that no longer worked, Court upheld as containing an “intelligible principle” even
when statutory standard was “just and reasonable”
d. ***Congress is most politically accountable institution
e. Non-delegation Doctrine
i. Named contingency test (Legislation ok b/c President’s authority was limited to taking specific
action prescribed by Congress when “named contingency” occurred)
ii. Legislative standards test (Congress could delegate legislative power if it set standards sufficient
to limit the scope of the agency’s discretion)
iii. Intelligible principle test (statute delegating power to agency can be upheld if it established an
“intelligible principle” to guide the exercise of that power)
f. ***only two cases were delegation held UNCONSTITUIONAL
i. Panama Refining Co. v. Ryan – where statute gave President authority to prohibit transport of
petroleum in interstate/foreign commerce in specific circumstances; party argued was UNCON
delegation of legislative power
1. Holding: Statute is brief and unambiguous – offers no rules, guidance, limitations,
criterion, and declares no policy (all up to the President)
a. CON forbids Congress from abdicating/transferring essential legislative
functions
ii. A.L.A. Schechter Poultry Corp. v. U.S. – where entire Court found that section of Act
authorizing President to approve “codes of fair competition” was violation of non-delegation
doctrine
1. Act does not define fair competition
2. Gives unfettered discretion to President to make whatever laws he thinks may be
needed/advisable for rehabilitation and expansion of trade or industry
3. Ability to use his discretion across vast array of commercial/industrial activities
throughout the country
iii. S Ct. was routinely striking down New Deal plans
1. Many commentators, including Breyer, now emphasizes the fact that power was
delegated to private parties with clear conflicts of interest thus the cases weren’t
really about the non-delegation doctrine
g. Decline of the Nondelegation Doctrine
i. Amalgamated Meatcutters 1971: Congress can broadly delegate price setting
1. DC Circuit upholds statute that delegates power to set all wages and prices to
President Nixon.
a. Didn’t want Nixon to have that kind of power– he then enacts such regulations
b. Contract implies a renewed contract but Nixon has a wage freeze – so they
challenge the statute as an unconstitutional delegation of power
2. Which factors should have influenced the court?
a. Pres. can use WWII standards;
b. And see below
ii. Broad delegations of power were upheld in many cases
iii. Court often relied on imaginative reasoning
1. Statute applied for limited time only (Congress later extended it)
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2. Individuals could protect themselves from arbitrary action through use of procedural
safeguards (when statute provided virtually no safeguards)
3. Actions under statute were subject to potential judicial review (Courts affirmed virtually
all 1000s of actions taken under statute)
4. Statutory reference to avoidance of gross inequity reflected Congressional decision to
adopt a fair and equitable standard
5. Allow statute itself lacked explicit standards, could use the standards to administer
something else (that had never been mentioned in relation to this)
6. Congress needs broad leeway for nat’l security/foreign relations
iv. Regulatory statutes often still implicated nondelegation concerns when they granted agencies
broad general authority to promulgate “all necessary rules and regulations” to enforce the
statutes
1. Nondelegation did not preclude agencies from adopting legally binding substantive
regulations under more specific statutory authority grants BUT
2. A general, all necessary rules and regulations grant that permitted binding regs carrying
force of law would violate nondelegation doctrine SO
3. Treated general authority grants as merely recognizing the executive’s already-existing
power to execute, interpret and enforce congressionally enacted laws
h. Renewed Interest in Nondelegation Doctrine in the 1970s/1980s
i. Critics found flaw with Congress’s increasing tendency to delegate most policy decisions to
agencies
1. Abdication of responsibility
a. Congressmen spend all their time wooing constituents
2. Harmful for democracy
a. Agencies who are not as directly responsible to the people make the hard
decisions
ii. Creates an environment in which corruption, cronyism, and patronage can thrive.
iii. Rehnquist and 4-Justice plurality in Benzene seem to agree ; see Industrial Union Dept. AFL-CIO
v. American Petroleum Institute (The Benzene Case)
iv. Ken Arrow got the Nobel prize for proving that a multi-member body cannot use democratic
principles to make a stable choice among 3 or more alternative policies where no majority
supports any alternative.
i. Apparent rejection of the attempt to reinvigorate the non-delegation doctrine
i. The court has applied the intelligible principal standard to uphold broad delegations of power in
5 cases by votes of 9-0 or 8-1 (all except Scalia)
ii. Mid-American Pipeline: Upholding a statute delegating to the Sec of Transporation the
authority to establish a schedule of fees based on various factors, i.e. to determine both the
incidence and level of a tax
iii. Touby v. US: Upholding a grant of power to the Attorney General to designate a substance as a
controlled substance, and thereby determine an element of various drug crimes
iv. Loving v US: Upholding a statute allowing the president to determine when a court martial
should impose the death penalty
v. Whitman v Am Truck Ass: Upholding a broad grant of power to the EPA to set air quality
standards
vi. Mistretta v. US: Upholding a delegation of power to a special commission established to issue
sentencing guidelines that binds the courts
1. Can Congress delegate to an “independent agency” the power to issue sentencing
guidelines that bind judges? YES
45
a. Similar to SS disability decision making, Congress thought widely different
sentences
2. TEST: It is not a violation (of the doctrine) if Congress clearly delineates:
a. the general policy, the public agency is to apply it, and the boundaries of this
delegated authority
3. Scalia dissenting (unique): not dissenting on basis of non-delegation doctrine, but on
the basis that it is an unconstitutional delegation of raw power to an independent
agency AKA the commission is basically legislating
j. The New Non Delegation Doctrine
i. Chevron as a Response
1. Are agency policy makers politically unaccountable bureaucrats? [arguably a fatal flaw]
a. But agencies are representative of the President, who is accountable to the
people
2. As a member of Congress, would you be willing to delegate a broad power to agencies
once you know that the President will be resolving all ambiguities
a. More incentive to make a higher proportion of policy decisions
3. No Justice has urged reinvigoration since Chevron and Court has unanimously upheld
5 broad delegations of power
a. Including power of an agency to determine whether to impose a tax, on whom
and if so, in what amount
b. Including power to define conduct as criminal
c. Including power to determine what forms of conduct warrant the death penalty
4. Since 2000, 2 scholars and 2 Justices have questions whether there was ever a basis for
the doctrine.
ii. In the series of cases relating to American Trucking, the SC addressed at least one strand of the
non delegation theory
1. American Trucking Ass’ns v. EPA Case
2. What should EPA do in the case of non threshold pollutants, ie pollutants that cause
serious adverse health effects at every level down to and below the level produced by
nonanthropogenic sources
3. Lower Court order EPA to reevaluate
a. Which serves two of three basic rationales for the non-delegation doctrine:
i. If an agency develops binding standards for itself, it is less likely to
exercise the authority arbitrarily
ii. As such, meaningful judicial review will be easier
4. Whitman v. American Tructing Ass’ns where P is challenging EPA’s revised air quality
standards; SC unanimously reverses lower court holding (above)
a. The court evaluated whether language of the statute authorizing regulation of
pollutants convey the necessary specificity for the EPA to extract a standard that
do not violate the intelligible principal/non-delegation doctrine
b. Court finds that the statute instructs the EPA to set primary ambient air quality
standards that are “requisite to protect the public health” with an “adequate
margin of safety”- which is a discernable standard (intelligible principle)
because:
i. the Court reads the “requisite” language to mean “sufficient, but not
more than necessary”
c. Using that reading, the court finds that the standard set by Congress is
comfortably within the scope of discretion of delegation
k. Precise Delegations of Power
i. If broad delegations of power are bad, are detailed commands good?
ii. Statutes can be divided by those which are excessively broad and those which are excessively
detailed / then there are under inclusive and over inclusive
46
l.
iii. Congress can employ rational proxies: use rational factors that correlate with their goals even if
they are not perfect measures for achieving them
iv. The Food Stamp Program
1. Congress responds to widespread food stamp abuse by college kids with rich parents by
forbidding DOA from providing stamps to any individual who has in his or her household
an individual who is claimed as a dependent on last year’s income tax return filed by an
individual with high income
2. While broad delegations of power have my undesirable effects, when Congress acts in
an over-precise manner it often creates serious problems
a. Beneficiaries constitute a small and politically powerless constituency
b. Political durability of Food Stamps is related to its secondary beneficiaries
v. US Dept. of Agriculture v. Murry
1. Where Congress amended the food stamp act to instruct the DOA to deny food stamps
to any household that has a person who is 18 or older who has been claimed as a
depended for federal income tax purposes by taxpayers who are themselves ineligible
for food stamps
a. DOA must deny food stamps to Murry, a single grandmother with 12 minor
dependents and income of $57.50 per month.
2. Court holds provision unconstitutional as a violation of irrebuttable presumption
doctrine
a. Where statutory requirements rely upon presumptions that are not always true
and also affect important individual rights, due process requires that affected
individuals be allowed to rebut the presumption
i. Factual surrogate used as irrebuttable presumption in a statute must be
necessarily or universally true to pass muster
b. Some children do not live or benefit from food-stamp-ineligible parent who
claimed them
c. What does this do for other statutes?
i. You can't vote til 18...is it universally true that this is the age of
maturity for voting?
ii. Never again applied this holding
vi. The Delaney Clause: Reworded statute so these do not apply anymore
1. The FDCA contained a clause that “no food additive shall be deemed to be safe if it is
found to induce cancer when ingested by man or animal”
2. At the time, science did not understand the differences in cancer between people and
animals (or really anything about cancer)
a. Only a small fraction of the substances that the clause banned induce cancer in
humans when ingested in quantities relevant to a human diet
b. ***Pierce cited the use of the rat/sugar test by the law firm to make the point
that this clause could be abused by third parties
3. Les v Reilly where the FDA allowance of four pesticides that were known carcinogens to
be used as food additives was challenged.
a. The FDA claimed a “de minimis” exception to the Delaney clause, citing a study
suggesting that the concentration level of the chemicals in processed foods of
the noted carcinogens generally poses no actual risk of cancer,
b. The court found that although the FDA has evidence it, is not for the FDA or the
Courts to correct Congress.
4. ***Notes: Under Clinton, congress enacted an amendment to the pesticide regulatory
statute that has the effect of never requiring the EPA to ban a pesticide based on the
Delaney Clause
Constitutionality of Delegating Adjudicatory Power
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i. Article III vest the “judicial power” in “one Supreme Court, and in inferior courts” as congress
may occasionally establish
1. However, viewed literally, this is theoretically violated every time an executive branch
official finds facts and applies relevant law
2. Practical application allows congress to authorize agency adjudication (dating back to
1789)
ii. Agency Adjudication may offer advantages
1. Less expensive
2. yields superior decisions (in terms of accuracy and consistency)
3. relieves article III courts of a massive burden
iii. Because agency power to adjudicate is susceptible to challenge, under article III and the 7th
amendments the SC tries to answer two reoccurring questions:
1. In what circumstances does Article III compel adjudication by a life-tenured federal
judge?
2. In what circumstances does the 7th amendment require trial by jury
iv. Crowell v. Benson, Congress gave some workers (who were not provided with workers-comp
rights via the states) the right to seek no-fault based compensation claims from their employers
in a federal agency adjudication
1. The right to bring an action was created by Congress, and is therefore considered a
“public right”
a. Public rights disputes can be adjudicated by agencies.
b. Private rights disputes can only be adjudicated by courts but plenary judicial
review of agency action is sufficient judicial involvement, analogizing agency
to special master
i. I.e. social security cases
2. All agency is doing is conducting the initial trial, but since someone could then go to
court, Congress has not impermissibly transferred their rights.
a. ***Is this still good law? Not really, private rights v. public is the only part that
survives
v. Northern Pipeline Const. Co. v. Marathon Pipe Line Co: Ct. holds new bankruptcy law
unconstitutional.
1. The Court was concerned that the creation of the new bankruptcy courts (and their
greater jurisdiction) violate the independence of the judiciary under article III and found
that:
a. The new courts were not independent and therefore not article III material
b. The Court also found that the core of many bankruptcy conflicts are private
rights disputes between a creditor and debtor
i. and ONLY controversies involving public rights can be removed from
article III review
ii. And therefore the act carried the possibility into administrative
encroachment into article III jurisdiction
2. The Court distinguishes this case from Crowell:
a. Crowell involved only congressionally created rights (public rights)
b. The agency in Crowell made only specialized, narrowly confined factual
determinations regarding a particularized area of law
c. The agency in Crowell engaged in statutorily channeled fact-finding
d. The agency in Crowell possessed only limited power to issue compensation
orders pursuant to specialized procedures
3. ***The outcome of Northern Pipeline encouraged parties to challenge several
adjudicatory regime
vi. Union Carbide: agencies can supervise private disputes in narrow class of cases if good reason
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1. Where the court upheld a provision 5-Justice majority upholds statute that assigns a
class of takings disputes to agency-supervised binding arbitration and authorized
applicants for approval of pesticides that were similar to previously approved pesticides
to use data submitted by the earlier applicant
a. Authorization was subject to duty to compensate earlier applicant for use of its
property
b. Court found that although the compensation was between private people/ a
private right, the heart of the dispute involved the exercise of authority by a
federal gov’t agency.
c. Union carbide, in one sense, goes further than any article III case because it left
no role for reviewing courts because absent fraud, misconduct, or
misrepresentation, the arbiter’s decision was not reviewable
vii. Commodity Futures Trading Commission v. Schor
1. 7-Justice majority upholds CFTC assertion of power to adjudicate common law
counterclaims because narrow class of disputes, good pragmatic justification, and
defendant implicitly consented.
2. Congress created the CFTC which promulgated a regulation which allows it to
adjudicate counterclaims arising out of the same transactions
3. Court evaluated:
a. Extent to which the “essential attributes of judicial power are reserved for
article III courts
i. Article III does not confer on litigants an absolute right to plenary
consideration of every nature of claim
ii. Article III’s guarantee of impartial and independent federal adjudication
is subject to waiver (by bringing to CFTC)
b. The congressional scheme does not intrude on the jurisdiction of the judiciary
i. The limited jurisdiction that the CFTC asserts over state law claims is
necessary in context of the adjudication of federal claims willingly
submitted by the applicants
viii. Granfinanciera v. Nordberg: Jury must resolve dispute, agencies cannot usurp common law
claims
1. Issue: whether a person who has not submitted a claim against a bankruptcy estate has
a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly
fraudulent monetary transfer The dissent in UC and Schormajority in Gran Financiera
in context of 7th Amendment
2. Holding: that jury must resolve any dispute that could have been resolved at common
law at time 7th amend was ratified
a. Congress may only deny trials by jury in actions at law where public rights are
litigated
b. If the right in question is legal in nature, then it carries with it the 7th
amendment guarantee of a jury trial
c. A bankruptcy trustee’s right to recover (even under federal statute) is more
accurately characterized as a private right
3. ***this is inconsistent with previous cases: Court is poised to say that most agency
decisions will be unconstitutional
a. BUT there is some logic: In cases that do not involve agencies, courts create
grave doubt with respect to the constitutionality of adjudicatory regimes
ix. DOCTRINE TODAY
1. Unresolved Issue of What Constitutes a Private Law Dispute
a. Any dispute b/w private individuals or entities (e.g. private common law
dispute, K dispute, fed workers comp rate regulations)?
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XIV.
b. Any dispute that existed at common law (e.g. common law tort action, K
dispute)?
c. Any dispute in which common law applie
2. Public Rights: Can be adjudicated by agencies
a. Disputes b/w an individual & a govt. agency (e.g., application to obtain Social
Security benefits, tax disputes, Ks)
b. Disputes over a statutory entitlement (e.g. Social Security benefits created as a
statutory entitlement)
3. Summary: The analysis the Ct. uses for adjudicative delegations cannot be easily
summarized. The ultimate question appears to be whether the delegation impairs either
an individual’s interest in having a claim adjudicated by an impartial Art. III judge or the
structural interest in having an independent judicial branch decide matters that have
traditionally fallen w/i the core of Art. III business.
CONGRESSIONAL MEANS OF INFLUENCING AGENCIES
a. Statutes
i. APA: Congress specifies rulemaking process
1. Practical effects of formal/informal have on agency rulemaking
ii. Freedom of Information Act
1. Requires each agency to publish its rules and final decisions in the federal register
a. Intended to make functions of government more transparent so public could
identify and fix problems
2. Agencies are required by statute to respond to FOIA requests within 20 days
a. Rarely happens because of burden on agencies
b. As long as agency is using “due diligence” to respond to the request, everything
is kosher – Open America Case
i. The court can give priority to a request only if some “exceptional need
or urgency attached to the request justified putting it ahead..”
c. Despite the urging of the FBI, congress has not (and will not) provide the
agencies with the resources required to keep up with request demands
iii. National Environmental Policy Act
1. Requires every agency to prepare an environmental impact statement before it takes
any major federal action that has a significant effect on the environment
2. Can greatly increase cost of socially beneficial regulations
iv. Civil Service Act
1. Creates a meritocratic system of hiring, evaluating and managing agency employees
2. Makes it extremely difficult for managers in agencies to fire or discipline inefficient
workers
3. Makes it difficult for Potus to implement his agenda when agency workers do not agree
v. Information Quality Act
1. Requires agencies to act only on the basis of high quality information
2. Can create scenarios where litigants can delay agency actions by challenging the
research that is the foundation of their rule
b. Allocation of Litigating Authority
i.Allows some agencies to enforce their own rules
ii.Those who cannot must rely on the DOJ, where political priority can delay enforcement
c. The Confirmation Process
i.The senate uses the confirmation process for four purposes
1. Means of vetoing the President’s choice
2. As a source of leverage to extract commitments from a nominee
3. Can threaten to embarrass agency at confirmation hearings
4. Can threaten to decline all other choices to prevent transition
d. The Appropriations Process
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i. Congress can fund or defund agency department or functions via appropriations bills
ii. Often times funding is linked to particular agency actions
e. The Oversight Process
i. Oversight committees bring in agency personnel and take them to task
f. Casework
i. Members of congress often aid constituents in working with agencies
ii. Studies have shown that because legislators do more casework than legislative work, they are
more inclined to create agencies with vast discretionary powers that they can more directly
influence for their constituents
g. In adjudicatory context, Congress influence limited by due process [neutral decision power]
h. ***Change in Congress is the change in what agencies do [not necessarily White House]
XV. LIMITS ON CONGRESSIONAL POWER
a. Due Process
i. Pillsbury Co. Federal Trade Commission
ii. Facts: FTC brought complaint against Pillsbury which was pending before the Commission when
the Chairman was summoned before the antitrust subcommittee of Congress
1. The subcommittee forcefully expressed their opinions that a per se doctrine should
apply and that it was the intent of Congress that it should apply
2. The questions were so probing that the Chairman was finally forced to disqualify himself
from further participation in the Pillsbury case.
iii. Holding: Court found that the subcommittee proceedings were an improper intrusion in the
adjudicatory process of the FTC and were so damaging that it required members of Commission
to be disqualified. This sacrifices impartiality, and therefore justice required that the order be
invalidated.
b. Procedures Required to Legislate
i. Up until INS v. Chadha, Congress enacted more than 200+ provisions allowing Congress to
approve/disapprove agency actions through measures that fell short of full blown legislation
(i.e. single resolution passed by either House of Congress).
1. Argument for: Congress lacks the expertise and foresight to state meaningful standards
in advance, but Congress can, and should, veto actions that it determines to be
inconsistent with public interest.
2. Legislative veto was rarely used.
ii. INS v. Chada
1. Chadha overstayed his student visa, but immigration judge ordered that his deportation
be suspended on the grounds that he had resided in the US for over 7 years, was of
good moral character, and would suffer “Extreme hardship” if deported
2. Once this recommendation was conveyed to Congress, they had power to veto this
determination and they didChadha was ordered to be deported (resolution was not
submitted to Senate or President)
3. Holding: the act is not in conformity with constitutional standards for legislative action,
which sets forth that it must be passed by a majority of both houses and presented to
the President.
a. Two-House veto violates Presentment Clause and one-House veto also violates
Bicameralism
b. Exceptions:
i. House of Reps alone given power to initiate impeachment
ii. Senate alone given power to conduct trial following impeachment on
charges initiated by House and to convict following trial
iii. Senate alone was given unreviewable power to approve or to
disapprove presidential appointments
iv. Senate alone given unreviewable power to ratify treaties negotiated by
President
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XVI.
4. Note: actual relationship between non-delegation and legislative veto is opposite of
what this case presents
a. If you don’t delegate the power to the agencies without discretion, then the
court is adopting that power for themselves
5. In 1996 Congress passed the Congressional Review Act where Congress can veto a
major rule only by enacting a joint resolution of disapproval subject to presented to and
potential veto by the President
a. Used once-is this constitutional???
iii. Bowsher v. Synar
1. Background: Originally Presidents had a lot of discretion over expenditures of funds that
Congress appropriated but this discretion disappeared over time as Congress broke
budget into thousands of accounts
a. Congress eliminated Presidential discretion to not spend funds in response to
many perceived abuses of power by then President Nixon.
2. Case: Statue requires CBO and OMB to make projections and then send to CG, who
makes final projection that binds Pres
a. If any fiscal year the budget deficit exceeds the max deficit amount by more
than a specified sum, the Act required across the board cuts in fed spending.
i. Comptroller General office requires nomination by President but the
removal is by Congressional joint resolution.
3. Holding: This is a violation of Sep of Powers
a. Here Comptroller performing executive functions under the Act. Congress
cannot reserve for itself the power of removal of an officer charged w/execution
of the laws (Except for impeachment)
i. Okay but no CG has ever been removed….see dissent
b. CG cannot determine spending levels because that is an inherently executive
decision
i. Pierce: But look at the constitution...spending takes place through
appropriations which comes from the house!!
4. Dissent: Real question to be answered here is whether the threat of removal of the
Comptroller General for cause through joint resolution renders Comptroller sufficiently
subservient to Congress…NO
a. Removal is only permitted for specified cause, subject to post termination
judicial review AND be presented to the President, and if it is vetoed by him,
then would have to overridden by the 2/3 majority of both houses of Congress
5. Concurrence: CG cannot determine spending levels because Congress can only act in a
way that binds Pres. through bicameralism and presentment
EXECUTIVE POWER OVER AGENCIES
A. Sources of constitutional power
i. Vesting clause: part of the Constitution; court has relied on this
ii. Opinion in writing clause: suggests that every officer report to the Pres, but hasn’t been used in
any case but one where an agency tried to go around the WH to submit budget to Congress
iii. Take Care Clause: Pres “shall take care” that laws be executed; Scalia uses this to support claim
that no one but Pres can implement any public law ; if Congress does not delegate power to the
Pres but a head of agency, then that person has to execute the power
iv. Commander in Chief Clause: subject to a lot of litigation
v. Unitary executive: sole executive; does not answer questions, provides a means to answer
questions
vi. Appointments clause
1. Only President may appoint officers under Article II §2 with Senate confirmation.
Inferior officers can be appointed by President alone.
2. Who is an officer??
52
B. Buckley v. Valeo: Congress does not have the power to appoint commissioners
I. Fact: Federal Election Campaign Act creates Commission to enforce Act (duties include
recordkeeping, disclosure and investigative functions BUT ALSO extensive rulemaking and
adjudicative powers).
1. Commission of 6 members who can vote: 2 appointed by Senate, 2 by House, 2 by
President AND each of 6 must be confirmed by majority of both Houses of Congress +
political party requirements.
II. Issue: Whether CON for Commission to exercise the powers it does based on the way in which
the members are appointed.
III. Holding: Any appointee exercising significant authority is an Officer of the US and must be
appointed by Appointments Clause
1. Here, for 4 of 6 voting members neither EXEC, judiciary, or head of any department has
any voice; other 2, EXEC nominates but must be approved by both houses of Congress
2. Enforcement powers and rulemaking/advisory/adjudication powers may only be
exercised by persons who are Officers of the US (appointed by Appointments Clause)
iv. Contrast with Members of Civil Rights Commission can be chosen by Congress
1. Distinction is Civil Rights commission cannot sue or be sued, issue any rules, adjudicate
or make any final decisions, can only investigate or make reports
v. Post-Buckley: Congress reenacted the statute simply changing it so all 6 voting Commissioners
were nominated by President subject to confirmation by Senate (hard to reach consensus); 2
non-voting members still appointed by Congress AND still no more than 3 members can be of
same political party
c. Federal Election Commission v. NRA Political Victory Fund
i. DC Circuit case challenges two characteristics:
1. Can Congress choose non-voting members of an agency?
a. Commission tries to assert that non-voting members have no influence on
agency decision-making BUT this would be contrary to original Congressional
intent to exert influence through those members (legislative history)
b. Conclusion: Since the legislature can with the greater facility, mask under
complicated and indirect measures the encroachments which it makes on the
co-ordinate departments, the mere presence of agents of Congress on an entity
w/ EXEC powers offends the CON
2. Can Congress restrict President to nominating no more than the bar majority of
members from the same party?  DC Circ says this claim is not justiciable until it would
be ripe but the only way this could ever become a ripe issue is if a Pres would nominate
a fourth person of a political party and Senate confirms
a. President never tried to appoint more than 3 from same party
b. More likely that if he wanted to and did not it’s b/c of the political situation and
not the law itself
c. *Note: FEC often ineffective b/c divide 3-3 on issues – proposed remedial
response is to give ALJs more power – allow them to issue rules and to issue
final decisions in adjudications
ii. Supreme Court refused to consider on basis that FEC cannot litigate before Supreme Court
1. Unless statute specifically confers jurisdiction on an agency to represent US in the
Supreme Court, then the agency doesn’t have the power
2. The issue that they were concerned with was never going to happen because the legal
issue would never come up because the political system would never allow it!
a. No way four members are going to get approved by Senate
d. Status of ALJs
i. Landry v. FDIC (DC Circ, Denied Cert) : Two judge majority held that ALJs are employees
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e.
1. Facts: Congress gave FDIC power to remove a bank officer and bar him from further
work in federally insured depository institution; removed Landry in this way and he
protested that the FDIC’s method of appointing ALJs violates the Appointments Clause
2. Relied on APA 557 b which authorizes an agency to substitute its own opinion for that of
an ALJ as if the ALJ had never issued an opinion
a. Any change in law that increased the legal effect of ALJ decisions would make
them officers or inferior officers
b. Would force changes in the manner in which they are selected and require a
change in law that would authorize the President to remove ALJs in some
circumstances
3. Dissent: ALJs are inferior officers
a. ****Remember: ALJs are selected by a test, get pts for experience, + 20 pts for
being a vet...so no pt in applying if not an vet
b. ****PIERCE WROTE AN ARTICLE about SSA administration, where ALJ’s are like
inferior officers because as a practical matter, all ALJ decisions are final
decisions because they don’t have the resources
What Kind of Officer: Principal or Inferior?
i. Two different avenues of appointment for Officers of the US
1. Principal officers must be appointed by the President and approved by the Senate
2. Inferior officers may be appointed by President, Courts of Law, or Heads of Departments
as Congress sees fit
ii. Morrison v. Olson: Independent counsel is an inferior officer
1. Facts: In wake of saturday night massacre, Congress authorizes “independent counsels”
to investigate and/or prosecute criminal conduct by Pres and high-ranking officers.
a. IC is appointed by special 3-judge court and can be removed by AG only for
cause
2. Holding: Appointment by court is ok because IC is an inferior officer.
a. Limited duration;
b. Limited scope;
i. Applies only to certain federal officials suspected of certain serious
federal crimes
c. Inferior to AG because must comply with DOJ policies and can be fired for cause;
i. Even though has independent discretion which takes independent
counsel outside of AG/EXEC subordinance, removal power makes
subordinate
d. No power to make policy.
i. Investigation and prosecution for specific federal crimes
ii. Can’t formulate policy
3. Scalia’s Dissent: Prosecution has “always & everywhere” been an executive function
iii. Edmonds and Freytag [if someone is an Inferior officer or not, can be appointed by Court
Judges]; Tax Court Judges are officers
1. Why are members of the Coast Guard of Appeals and Special Trial Judges in the Tax
Court “inferior officers” while Judges on the Tax Court are “officers” [opinion in Freytag,
concluding special judges appointed by Tax court are inferior officers, but the regular
judges are officers]
a. Have the power to make final decisions, subject to only deferential review,
distinguishing them from ALJs
b. Can’t be removed by any superior officers
c. The special judges: Don’t get to make final decisions, can only make ones that
are subject to plenary review and can be removed by the Chief Judge of the tax
court
2. How are CG judges inferior to CG JAG
54
a. Just assigning them to a new location, doesn’t require any new process from
nomination of Pres and confirmation
b. JAG can remove them
3. In what ways are CG judges inferior to Court of Appeals for Armed Forces?
a. Opinion suggests that the court should look to their power of final decision or
can be removed by someone who is an officer [similar to Morrison v. Olson]
iv. Freytag:
1. Court unanimously holds that special judges of the tax court can be appointed by chief
judge [or head of dept]
2. 5 justices say tax court is court of law even though it is not an article III court
a. tax court used to be board of tax appeals, part of the executive branch
3. 4 justices says tax court is an executive branch department
a. say to combat that the only thing that counts as a dept is a cabinet department
v. PCAOB
1. In 2010 Court held that SEC is a dept and the 5 commissioners are its head for appts
clause purposes
2. PCAOB members are inferior officers only because majority holds that they must be
removable at will by SEC members
a. SEC is an independent agency
f. Recess Appointment Power
i. Article II, Section 2, Clause 3 of CON: President has power to fill all vacancies that happen
during Recess of the Senate by granting Commissions which shall expire at the end of their next
session
1. Since 1960 Senate Resolution discouraging recess appointments to SC, number of judges
appointed that way has greatly declined BUT still very common for Presidents to make
recess appointments to fill EXEC positions AND remains very controversial
a. Issues with what constitutes a Recess (a few days off or needs to be longer
period)
b. Whether there is a requirement that vacancies initially arise or merely exist
during recess
c. Whether President can make recess appointment to replace a member with an
expired term when it is for a commission with a holdover clause (old member
remains until successor takes office)
ii. From 2006 until 2010, NLRB had only two members. [Congress refused to confirm any of Bush’s
then Obama’s nominees]
1. In 2010, Supreme Court held it had no power. In 2010 President Obama made 3 recess
appointments of members Congress refused to confirm.
a. The decisions between 2006-2010 with lack of commissioners did not have
quorum to be an agency that could exercise any of the powers of its act
b. Agencies are headed by multi member groups, no more than just the bare min
majority can be members of the same party
c. Senate creates the de facto session rule  they will never have a recess
iii. Inability to get an appointment confirmed depends on the political environment
1. Always someone who can become the “Acting head” even though they may not have
the title while someone is being waited to be confirmed
iv. If Congress creates a new agency, could be a different deal depending on the political
considerations
g. Power to Remove
i. CON does not mention power to remove officers BUT all Presidents assert the power to remove
subordinate exec officials from office
1. Never been an attempt by Congress to say that President cannot remove an officer
(sometimes threaten too), the question is whether congress can LIMIT that power
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ii. 5 major cases: Myers, Humphrey’s, Wiener, Morrison, and PCAOB
1. The first 3 no longer mean what they were widely believed to mean, but each has
important meaning today…
iii. ***Pierce doesn’t think for cause removal has a lot of effect  political is more important
iv. Myers v. United States –where postmaster was removed from his post by President in defiance
of statute that says President cannot remove any officer w/o Senate confirmation
1. Holding: The court determined that under the CON, the President has exclusive power
of removing executive officers of the US whom he appointed w/ consent of Senate
a. Power of removal is different from that of appointment
i. Veto by Senate upon removal is a far greater limitation upon the
executive branch and cannot be implied (if exists must be explicitly
stated)
ii. No embarrassment to President to reject nominee – different to force
him to remain with someone he cannot work with
iii. Senate learns of capabilities/qualities of nominee but is not well advised
to defects in intelligence or loyalty of President’s workers
b. Also, power of removal to Congress is not enumerated anywhere in CON
c. President must have utter faith in his executive subordinates to do his job
2. *Note: not the law today…today it stands for:
a. Whatever else Congress can do in terms of limiting Pres’ power, it cannot have
a role in the process itself [that would turn it into a congressional agency itself
and Bowsher limits that]
v. Humphrey’s Executor v. US: President cannot remove at will those officers exercising quasilegislative functions; Congress can limit Pres “for cause”
1. Facts: President Hoover appointed, and the Senate confirmed, Humphrey as a
commissioner of the Federal Trade Commission (FTC)
a. President Roosevelt asked for Humphrey's resignation since the latter was a
conservative and had jurisdiction over many of Roosevelt's New Deal policies.
b. When Humphrey refused to resign, Roosevelt fired him because of his policy
position but the FTC Act only allowed a president to remove a commissioner for
cause
2. Holding: President cannot remove an FTC Commissioner w/o stating a cause b/c:
a. Statute specified a fixed term of years and limited removal to “for cause”
b. Agency’s functions (in 1935) were not executive or political but were quasilegislative and quasi-judicial
c. Agency was independent of all control by President and Congress
i. Without some insulation, a President might exert undue influence and
say they would like a case decided for X  is this a violation of neutral
decision maker function of due process
d. Distinguishes Myers
i. Can’t apply here because it is based on the theory that an officer is
merely one of the units of the executive department (inherently subject
to the exclusive and illimitable power of removal by the executive)
ii. FTC is not an arm or eye of exec-it’s an independent agency
3. Case Today
a. Independent Agencies
i. An agency is called “independent” if it is headed by multiple members,
nominated by the President and confirmed by the Senate, with no more
than a bare majority of members of the same party, subject to
staggered fixed terms, and subject to President removal only for cause
b. Can’t mean that it is directly accountable to the people, but if Congress has
justification, that’s some limit
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vi. Wiener v. United States: Pres removal power; limit today is removal for cause
1. Facts: Congress created War Claims Tribunal to resolve WWII claims “according to law.”
Pres nominated members subject to Senate confirmation. Statute was silent re removal.
2. Court draws inference that Congress intended to limit Pres removal power
a. TEST: Court evaluated (under Humphreys) whether the Commission and its
commissioners were either:
i. Part of the “executive establishment and thus removable by virtue of
the presidents constitutional powers,
ii. Part of a body to “exercise judgment without the leave of hindrance of
any other official or any department of government
b. ***The most reliable factor for drawing an inference regarding the President's
power of removal is the nature of the function that the Congress vested in the
war claims commission
i. What were the commissions duties?
ii. Can an inference be fairly drawn from the failure of congress to provide
for removal that these commissioners were subject to the will of the
executive?
3. Case Today:
a. Wiener may still have meaning in some unusual contexts, but courts no longer
assume that Congress intended to limit removal power when statute is silent on
issue.
b. Consistent with Humphrey in that Congress can insulate some of the
President’s power to remove
c. Circuits have had these cases, not Supreme Court  said it doesn’t matter
whether statute is silent, baseline assumption is Pres has plenary power to
remove, only thing that overcomes is a Congressional limit to only remove for
cause
i. Strained to apply today, only apply in particular circumstances [tribunal
functioning as courts]
vii. Morrison v. Olson in Removal Power Context
1. Issue: whether the “provision of the Act restricting the attorney general’s power to
remove the independent counsel to only those instances in which he can show “good
cause”, taken by itself, impermissibly interferes with the presidents exercise of his
constitutionally appointed functions”
2. Unlike Myers and Bowsher, the Act puts the removal power in the hands of the
executive branch
a. an independent counsel can be removed from office, “only by the personal
action of the attorney general, and only for good cause”
b. there is no requirement of congressional approval of the AG’s decision, but it is
subject to judicial review
3. Holding: This arrangement does not interfere with President’s power to “take care
that the laws be faithfully executed because
a. some degree of insulation is justified by Bonham’s case (no man can be a judge
in his own case)  so when you’re investigating the Pres, okay to have isolation
b. No attempt at congressional aggrandizement of power, unlike Chadha,
Bowsher, etc.;
c. Plenary control over investigation and prosecution of a single case is not central
to President’s ability to control Executive Branch
d. IC has no policy-making power
e. President still has some power over IC through AG
4. Scalia Dissent: [prefers Myers to Humphreys]
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XVII.
a. Prosecution has been an exclusively executive function “always and
everywhere” (this is not true);
i. In the past, prosecutors appointed by leg + courts
b. Court has replaced prior fuzzy limit on Presidential power with no limit at all
c. Is Scalia right that the Court would have to say the same things regarding an
Ass’t AG or Secretary of State
5. ***Congress eventually agreed with Scalia’s policy arguments and abolished IC position
a. Too time consuming and burdensome to comply with IC investigation
viii. PCAOB
1. In 2010 Court held that Congress cannot create an agency that is run by individuals
subject to double insulation from presidential control, ie removable only for cause by an
officer who is removable only for cause
2. Court assumes that SEC members can only be removed for cause even though statute
has no for cause limit
3. 5 Justice Majority wanted to send a very broad message
a. Written by the chief justice, who is always reluctant to override precedent
OTHER PRESIDENTIAL ATTEMPTS TO CONTROL AGENCIES
a. The legal framework by which presidents exercise power is surprisingly underdeveloped – the SC has
decided only a handful of cases
b. In re Neagle
i. Where the Attorney General hired a SC justice a body guard for his trip to California without any
statutory authority, who then shot someone who had previously threatened the justice and was
acting “ambigiously”
ii. The bodyguard was then charged with murder by the state of CA, and defended under the
supremecy clause
iii. Holding: upheld the bodyguard’s defense and the AG’s power to hire him (does this surprise
you?)
c. Youngstown Sheet & Tube v. Sawyer
i. Perhaps the most important case is Youngstown in that it addresses the scope of presidential
power
1. It arose when the steelworkers union and the owners were unable to resolve a labor
dispute
2. Believing that the shutdown of the steelmills would be detrimental to the war in Korea,
Truman seized the mills and had the operated by the government
ii. Issue: Whether the President has the power to authorize the Sec of Commerce to seize the steel
mills under executive powers in article II
iii. Holding: FRAMEWORK OF AUTHORITY
1. GREATEST AUTHORITY (Jackson): when President exercises power delegated expressly
or impliedly by Congress, his power is “at its utmost”
a. The seizure executed by the presidents pursuant to an act of congress would be
supported by the strongest of presumptions
b. Clearly no Congressional statute here, so not greatest authority + Congress has
actually enacted the Taft-Harley Act against this
2. Middle Authority: When Pres exercises his power in a statutory vacuum, his power is
“uncertain”
a. When the president acts in absence of either a congressional grant or denial of
authority, he can only rely on his own independent powers
b. Congress=President Power, test of power is likely to depend on imperatives of
events
c. Can’t apply any of President’s other powers: executive, commander in chief,
take care, emergency/inherent power
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3. Lowest Authority : When President acts contrary to will of Congress, his power is “most
dubious”
a. **Distinction between disallowing this completely and just saying its “most
dubious”
b. He can rely only on his constitutional powers minus any constitutional powers of
congress over the matter
4. Notes:
a. There are no cases in justice Jacksons third category in which the supreme court
has upheld a presidential action that the court determined contrary to the
“express or implied” will of congress
b. Lesson learned from this case is be in one of the first two categories and when
in doubt, ask Congress
d. What else does the President got to use?!
i. Every President from FDR to the present has complained re inadequate ability to control and
coordinate the sprawling bureaucracy, and each has moved further in exercising systematic
control.
1. It is important to remember, however, that most Presidential influence over agencies is
now, and always has been, ad hoc and low visibility
ii. Removal Power: Presidents can remove most officers without reason for doing so
1. However, presidents are extremely reluctant to use their removal power
iii. Presidential Signing Statements
1. Presidents have taken the opportunity when signing bills to issue formal statements
offering their views regarding the legislations constitutionality or meaning
a. Reagan expanded this policy- issuing over 250 signing statements
iv. Ad hoc Jawboning: Studies find that 18 White House offices in addition to OMB jawbone
agencies behind closed doors; offices often take inconsistent positions; in most important cases,
other offices have more influence than OMB.
v. Executive Orders:
1. EO’s are presidential directives that govern the actions of government officials and
agencies and carry the force of law
2. The constitution does not explicitly authorize the president to issue EO’s
a. Presidents have claimed that the provisions of article II, or more ambiguous
statutory language authorize their orders
3. EO’s Require agencies to engage in
a. Regulatory Planning Process
b. Conduct cost-benefit analysis on major rules
c. Submit proposed rules to OMB/OIRA for review prior to publication
4. The OMB evolved from the Bureau of the Budget, which congress created in 192
a. Purpose to “assemble, correlate, revise, reduce, or increase the budget
estimates of the several departments or establishments
b. The bureau became a sort of information clearinghouse
c. Allowing the president to discern what agencies were doing and influence their
actions
vi. Reagan 12,291: Formalized Office of Information of Regulatory Affairs processes in order to allow the
President more control over Agency actions
1. Requires Agency to review rulemaking through
2. Required cost/benefit analysis, consultation with other agencies, and additional data
a. You need to go talk to the X agency, we can require that you do!
i. If you are a lawyer for a client, submit thorough comments!
ii. Meet we every member of the agency that you can (on average 1200 meetings during
the process of creating a rule at the EPA!)
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1. During those meetings you hand them your comments and explain them, or
they might not read them
3. Authorizes OMB to require delay of Agency publication until they have had an opportunity to review it
a. District court case: Delay related to presidential review may be reasonable when there is no
statutory deadline, but unreasonable when there is a deadline that has passed
4. Only applies to “major rulemaking”—$100 million/year in regulatory costs
a. Why? Too many to be reviewed!
5. About 200 rules a year in that category
a. **Doesn’t apply to adjudications, so agency head make all major policy decisions in process of
adjudicating individual disputes
6. Applies only to major rules issued by Exec Branch agencies
7. Applies only to the extent consistent with law
8. Requires CBA and rules consistent with CBA
a. How does this fit with State Farm and Chevron
vii. Reagan EO 12,498
1. 12291 was a disappointment to many so they came up with this EO instead, it gets intervention by the
WH earlier
2. Requires Executive Branch agencies to issue periodic regulatory agendas with info re pending and
planned rulemakings.
3. Designates VP as Head of Competitiveness Council with power to resolve disputes between OMB and
agencies.
4. Imagine how such disputes are resolved. What, if any, relationship would you expect between the
resolution of such disputes and the President’s removal power?
viii. **Bush 41 retained Reagan EOs.
i. Clinton EO 12,866
1. Includes all major elements of Reagan EOs.
2. Expands 12,498 requirements to apply to “independent agencies.”
3. Adds time limits for each step in review process.
4. Adds transparency requirements re status and communications.
a. Now we have regulations.gov with all the public comments and information about ex parte
meetings with regulators
5. In addition, Clinton took personal credit for some rulemakings, e.g., “today, I have directed the ____
to ____”
a. No president had done this before, they usually did it quietly and informally
b. He did it selectively, b ut formally on tv
i. May the agency was going to do it on their own, maybe they weren't-we never know
if agency wasn't going to do anyway
ii. Did it about 100 times, for politically beneficial things
6. Pierce: This is just a very verbose version of 12,291--> doing the same thing that Reagan + Bush Sr did
ii. Bush 43
1. Reaffirmed 12,866 with one change—VP no longer has any role (but see the 2007 Wash. Post report
re low visibility intervention in regulatory matters.)
2. Continued Clinton practice of directing agencies to start rulemakings, but added directives to rescind
or amend rules.
3. Placed lots of emphasis on precluding agencies from publicizing or acting on the basis of low quality
data. (Of course, data quality is often in the eyes of the beholder.)
4. EO 13422 extended review process to major guidance documents
5. Required each agency to designate “in coordination with” OMB a Regulatory Policy Officer who must
be political appointee and need not be agency head
6. RPO decided whether agency could begin rulemaking or issue rule
**Revoked by Obama
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