Cases
ADAPSO v. Fed (1984) ................................................................................................................................. 21
American Mining ......................................................................................................................................... 19
ATA, Inc. v. FAA ........................................................................................................................................... 18
Bell Aerospace Co. v. NLRB I ....................................................................................................................... 17
Bell Aerospace Co. v. NLRB II ...................................................................................................................... 18
Bi-Metallic Investment Co. v. State Bd. of Eq. of CO. ................................................................................... 4
Bowsher v. Synar......................................................................................................................................... 23
Cement Institute ......................................................................................................................................... 10
Center for Auto Safety v. NHTSA ................................................................................................................ 20
Central Platte .............................................................................................................................................. 10
Chamber of Commerce v. DOL.................................................................................................................... 20
Chevron USA v. Natural Resources Defence Council ........................................................................ 9, 10, 22
Coniston Crop v. Village of Hoffman ............................................................................................................. 5
Dickinson, Acting Commissioner of PTO v. Mary E. Zurko ............................................................................ 7
Dominion Energy........................................................................................................................................... 9
GE v. EPA ..................................................................................................................................................... 19
ICC v. Union Pacific RY................................................................................................................................. 21
Independent US Tanker Owners Committee v. Dole .................................................................................. 15
INS v. Chadha .............................................................................................................................................. 24
Londoner v. Denver....................................................................................................................................... 3
Matthews v. Eldridge .................................................................................................................................. 23
MN State Board v. Knight.............................................................................................................................. 5
Morgan I ...................................................................................................................................................... 10
NLRB v. Hearst............................................................................................................................................. 22
NRDC v. EPA ................................................................................................................................................ 13
Office of Workers’ Comp v. Greenwich Colleries.......................................................................................... 7
Penasquitos v. NLRB.................................................................................................................................... 21
Seacoast v. Costle ......................................................................................................................................... 8
SEC v. Chenery Corp. ................................................................................................................................... 16
Sugar Cane Growers of FL. v. Ann M. Veneman ......................................................................................... 13
Universal Cameral Corp v. NLRB ................................................................................................................. 21
US v. Chrysler Corp...................................................................................................................................... 19
US v. Nova Scotia ........................................................................................................................................ 14
Vermont Yankee Nuclear Power v. NRDC ................................................................................................... 13
Withrow v. Larkin ....................................................................................................................................... 11
Wong Yang Sung v. McGrath ........................................................................................................................ 6
Introduction to Administrative Law
I.
II.
III.
Administrative law basics: FAQ
a. All authorities and operating units of the government except for constitutionally
established entities: President, Congress and the Courts  all agencies are created by
statute
b. Administrative law is more like civil procedure than prop, K or torts  process-oriented
c. There are Agencies and independent agencies
d. Agencies make regulations coded in the CFR all pursuant to responsibilities spelt out in
the organic statute
e. Agency decision-making process: lots of cases are decided by agencies w/o much
formality at all (every time you go through customs and pay duty). But more formal
proceedings that lead to final determinations w/ precedential value  ALJ  typically
sheltered appeals panel  head of agency/board  courts of appeals
f. What do Agencies do? Alternative world w/o agencies
i. Common law regime (like tort product liability law)
ii. statutory regime (legislature makes every law)
iii. folding rulemaking and inspection/licensing/adjudicating powers all into
agencies  better/worse?
g. Theories of regulation, Croley, pg. 25-26: “rent-seekers’ success requires much more
than providing legislators with political resources…special interest domination seems
more or less likely depending on the procedural opportunities available to other
interests.”
h. Legitimacy of the agencies, Freedman, pg. 29-30:
i. Public recognition that administrative process is essential to scheme of gov.
ii. Public perception of adequate accountability
iii. Effectiveness of administrative agencies in meeting statutory responsibilities
iv. Legitimacy of procedure stemming from public perception of fairness
i. Two frames of analysis for administrative law, Mashaw and Harfst, pg. 31
i. Policy analytic: public welfare
ii. Political interest economy: interest group theory or capture theory
Thematic questions in Administration: Policy design; Political Legitimacy; Constitutionality;
Values
History of Administrative Eras
a. Antelbellum
b. Postbellum
c. New Deal to Great Society
d. Public Interest Era
e. Deregulation
IV.
OSHA Problem – OSHA passed in 1970.
a. Tasks Secretary of Labor (SOL) with adopting regulations “reasonably necessary or
appropriate to provide safe or healthful employment and places of employment.” 29
U.S.C. § 652(8)
b. SOL must “give due regard to the urgency of the need for standards for particular . . .
work environments” when prioritizing standard setting. 29 U.S.C. 655(g)
Procedural Frameworks for Administrative Action
V.
Londoner v. Denver (1908) – Constitutional procedural requirements for administrative action
a. Facts – Denver charter establishes a three-step process:
i. On a petition signed by majority of owners to be assessed, the Board of Public
Works sends the City Council a resolution ordering work, an ordinance
authorizing it and creating an assessment district.
ii. City Council passes the ordinance and has the authority to conclusively
determine if board action was duly taken.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
iii. The cost of the improvement can be assessed on the owners after due notice
and opportunity for hearing.
Issue 1 before SCOTUS: whether the charter provision authorizing a finding of need for
road improvement w/o notice to the landowners denies to them due process of law
Holding: No, it does not. Council had authority to order an assessment that affects
everyone as long as a hearing upon the assessment itself for individual landowners is
afforded
Issue 2 before SCOTUS: whether the assessment was made w/o notice and opportunity
for hearing to those affected by it is a denial of due process of law
Facts: “From the beginning to the end of the proceedings the landowners, although
allowed to formulate and file complaints and objections, were not afforded an
opportunity to be heard upon them.”
Holding: Where the legislature of a State, instead of fixing the tax itself (broad powers),
commits to some subordinate body the duty of determining whether, in what amount
and upon whom it shall be levied, and of making its assessment and apportionment, DP
requires that before tax becomes irrevocably fixed, the tax payers shall have an
opportunity to be heard. What’s missing?
i. must have notice, either personal or by publication or by a law fixing the time
and place of hearing.
ii. Something more than just writing submissions is needed. Must give opportunity
for people to support and present proof for their allegations by argument
iii. Not full-blown judicial procedure: no discovery, adversarial positions, counsel,
published arguments
Conceptual approach: reason from formal categories to determine answer.
i. Tax-levying is legislative in nature and so doesn’t require individual hearings
Functional approach: reason from past practice and pragmatic results to determine
answer.
i. Hearings bog-down proceedings and elections provide sufficient checks on
policymakers
Process Theory: when minorities are singled out  need special hearing for voice to be
heard, whereas if there are a large # of people affected  political process will take care
Bi-Metallic Investment Co. v. State Bd. of Eq. of CO. (1915)
i. Facts: increasing the valuation of all taxable property in Denver
ii. Issue: whether all individuals have a constitutional right to be heard before a
matter can be decided in which all are equally concerned
iii. Holding: No DP violation here
1. Functionally, when a rule of conduct applies to more than a few people
it’s impracticable that ever one would have a direct voice
2. Conceptually: The political machinery is designed exactly to answer this
problem  proper state machinery was used in legislative process
Hypo – pg. 243
i. WWII rent-stabilization statute authorizes administrator (“A”) to
VI.
1. establish ‘defense-rental areas’;
2. recommend rents (“RRs”) for those areas; and
3. if RRs don’t work, to set maximum rents that are “generally fair and
equitable” giving “due consideration” to rents as of 4/1/41.
ii. A establishes an area and issues RRs in line with rents prevailing 4/1/41.
iii. A finds RRs not suffice, so fixes maximum rents at those prevailing 4/1/41.
1. Rent of units rented for first time thereafter are capped at initial rent
and can be reduced if initial rent higher than those generally prevailing
4/1/41. Affects thousands of apts.
iv. A orders reduction in rent for a newly rented apt for failing to meet conditions
above.
v. A denies landlord’s objection.
vi. “adjudicative” and “legislative” facts deserve different procedures?
l. Peter L. Strauss, Revisiting Overton Park: Political and Judicial Controls over
Administrative Actions Affecting the Community, 39 UCLS L. Rev. 1251 (1992).
i. Legislative v. Adjudicative Facts
ii. Legislature: good at allocating among interests of broad groups – give and take
iii. Judiciary: good at bipolar decisions among individual parties – winner take all
m. Note case: MN State Board v. Knight
i. the Constitution does not grant to members of the public generally a right to be
heard by public bodies making decisions of policy
ii. It is inherent in a republican form of government that direct public participation
in government policymaking is limited
iii. Recognizing such a right would involve courts in a “massive intrusion into state
and federal policymaking” that would implicate separation-of-powers and
federalism concerns. (pg. 245)
iv. Coniston Crop v. Village of Hoffman: legislative decisions are no required to
have all the adjudicative decision making processes. Although, leg. is not
allowed to circumvent DP by saying that it’s not adjudicative, neither is the leg.
required to “judicialize zoning”
n. Roger C. Cramton, Criteria by which to measure the value of procedure and what kind of
procedures are to be afforded: Accuracy, Efficiency, Acceptability
o. Three ways to tell whether court-like procedures are appropriate:
i. Nature of facts a decision will turn on
ii. Prospectivity of the decision: judicial inquiry Is on present or past facts and law
iii. Generality of the decision
The APA
Formal
Rule Making
Notice §553(b); hearing §556;
intermediate and final decision §557; 30
day delay between publication and taking
Adjudication
“on the record after opportunity for
agency hearing”
Notice, informal settlement;
effect §553(d); publication §552(a)(1);
petitions to alter rules §553(e)
Informal
All: publication §552(a)(1); petitions to
alter rules §553(e)
Substantive only: notice, participation,
statement of “basis and purpose,” 30 day
delay between publication and taking
effect §553
separation of functions §554; hearing
§556; intermediate and final decision
§557; declaratory orders §554(e)
No need for “on the record after
opportunity for agency hearing”
a. Informal Rulemaking  §553 is above constitutional requirement and below full court
procedures
i. Initiation§ 553 (e); Notice requirement § 553 (b); Interested Persons’
Participation § 553 (c); Decision § 553 (c)
ii. No hearing is guaranteed, no evidence, no oral presentation and no public
record of any kind required
b. products of “adjudications” is a residual category
c. formal/informal: “when rules are required by statute to be on the record”
d. Definitions
Rule
Adjudication
Agency statement of general or particular
Agency process for the formulation of an
applicability and future effect designed to
order
implement, interpret, or prescribe law of
policy or describing the organization,
procedure, or practice requirements
including: see below
Approval or prescription for future of
Order means the whole or a part of a final
rates, wages, corporate or financial
disposition, whether affirmative, negative,
structures or reorganization thereof,
injunctive, or declaratory in form, of an
prices, facilities, appliances, services or
agency in a matter other than rulemaking
allowances therefor or of valuations, costs, but including licensing
or accounting, or practices bearing on any
of the foregoing
Rulemaking is agency process for
Licensing is the agency process respecting
formulating, amending or repealing a rule
the grant, renewal, denial, revocation,
suspension, annulment, withdrawal,
limitation, amendment, modification, or
conditioning of a license
Licensing can be a hybrid (FCC, Envirocare) License includes the whole or a part of an
depends on if the statute has polycentric
agency permit, certificate, approval,
tone to it
registration, charter, membership,
Ratemaking is also hybrid (Morgan’s)
statutory exemption or other form of
permission
VII.
Wong Yang Sung v. McGrath (1950)
VIII.
IX.
X.
a. Issue 1: Is deportation proceeding/hearings under §554 of APA and therefore required
to have a separate judge and prosecutor? Is adjudication required by statute to be on
the record/formal?
i. Inspector is fact-developer and the judge performs judicial functions
ii. Reasoning: The history of administrative law helps to argue for the broad
readings to include proceedings as such (cites legislative history and intent)
iii. APA took a long time to gain broad support  should give wide reading
iv. §554(d) specifically says that “factually-related cases” are not ok
b. Issue 2: Does “by statute” language actually apply to deportation hearings?
i. Immigration act doesn’t seem to require it; legislative history is ambiguous
ii. Constitutional Avoidance: if no hearing  might run afoul due process  the
proceeding here must be at least as important as one that endangers one’s
property  seems to need a hearing
c. We’ve moved slowly away from to the more textual approach, later Congress
overturned this and determined that the agency’s actions were actually sufficient
d. It “would be a disservice to our form of government and to the administrative process
itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its
remedial purposes where the evils it was aimed at appear.” (p.256)
Dickinson, Acting Commissioner of PTO v. Mary E. Zurko
a. PTO has formal hearings and have “clearly erroneous” standard FRCP Rule 52(a)
surpassing APA’s less stringent “substantial evidence” standard §706
b. §559 says that “no subsequent legislation shall be held to supersede or modify the
provisions of this Act except to the extent that such legislation shall do so expressly  a
statutory intent that legislative departure from the APA norm must be clear  similar
clarity in respect to grandfathered common-law variations (such as adopting FRCP 52(a)
for PTO decision review)
c. In practice, there’s very little difference between the two standards, no historical cases
where this distinction made a difference
d. Here, especially, patent litigation requires a large amount of expertise, giving a more
deferential treatment of agency action is appropriate
e. Dissent: APA was enacted to heighten and unify minimum standards for judicial review.
Since historically the court of appeals here already have a working standard higher than
the APA “substantial evidence”, it should not be altered
Note cases: Office of Workers’ Comp v. Greenwich Colleries (1994)
a. Searched through Congressional records to find what “burden of proof” means in the
APA context compared to the agency’s long practice of defining it as “true doubt” rule
 the majority was persuaded, that the emerging consensus on the definition had fixed
on the burden of persuasion
b. a battle of legislative material
c. Dissent: strongly disagreed that ambiguous legislative material should rule
Three phases of APA interpretation: legislative intent (above cases) ”middle phase” (cases
below, reinterpreting the APA) formality and textualism
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
ADAPSO: conferred standing on any one who could show an “injury in fact” to a concrete
interest that was arguably within the set of interests that was arguably within the meaning of a
relevant statute  made challenges to agency action much easier
Overton Park: this granting of standing gave way for environmentalist groups to bring suits like
this one and made the A&C standard for judicial review much more searching. Before 1946,
A&C was understood to be satisfied as long as agency didn’t act with lunacy, now agencies have
the burden to show reasonableness
As procedural requirements get more and more elaborate (oral argument requirement and the
such), it’s gone way beyond the intent of the legislators in 1946
Textualism and contextualism in Administrative law, Siegel, pg. 275: “a dominant force in the
construction of many administrative law statutes is neither the statutes’ authors, but
background principles of administrative law.”
External constraints, with statutory and constitutional limits, agencies generally enjoy
substantial freedom to shape the procedures they employ.
How does the court interpret adjudication or rulemaking:
a. Although APA determines something is legislation/adjudication but not informal/formal
b. If organic (Congressional statute authorizing the agency’s act) statue says nothing about
formal  informal (see p.253 chart)
c. APA has almost no outline for informal adjudication
Statutory Interpretation Tools:
a. Textualism
i. Ordinary meaning, usually at time drafted for older statutes, or technical
meaning if relevant. Dictionaries commonly used
ii. Whole Act: each section should be interpreted in light of the entire statute
(Zurko)
b. Legislative history (descending order of authority/reliability)
i. Committee reports
ii. Committee hearings and floor debates
1. Sponsors words or informed supporters given more weight
2. Textualists criticize relying on these sources
iii. Post-enactment history (proposals to amend, oversight hearings, efforts to pass
related statutes)
1. Relevance contested
iv. Inaction
1. Acquiescence rule
2. Rejected or neglected proposal rule
c. Constitutional avoidance and “mood” of the statute
§§554, 556, 557 Formal Adjudications
I.
Initiation § 554 (b); Notice requirement § 554 (b); Referral for a hearing §554(c); Separation of
functions § 554 (d); Hearing § 556; Who presides § 556(b); What can presiding officer do §
II.
III.
IV.
V.
556(c); What rights to parties have § 556(d); What is a decision based on § 556(e); Decision and
Appeal § 557
Sources of procedural requirements: Due Process Clause; APA; Statute being implemented;
Agency regulations
Seacoast v. Costle
a. Under definitions of §551, this permit process is adjudication
b. §554(b) initiation: by agency or private party
c. §554(c) Notice and requirement: notice of questions of fact and/or law
d. §554(c) referral for a hearing
e. Formal adjudication vs. informal rulemaking
i. Jurisdictional
ii. specific notice to parties and not general public
iii. rulemaking requires proposed action but adjudication is fact/law issues of case
iv. adversarial
f. The APA, in this case, did not require public hearing, but the Clean Water Act did
i. organic act says “hearing”  formal (compare w/ Dominion)
g. Under APA, the parties do not have automatic rights to cross-examine
h. Decisions must be based on on-the-record evidence
i. When does the agency have to allow a formal hearing?
i. 1st Circuit in this case decided APA formal procedure was triggered, relied more
on legislative intent than the APA language: Senate Comparative Print had “on
the record” language but not really dispositive; Attorney General manual
j. Three ways to tell whether court-like procedures are appropriate:
i. Nature of facts a decision will turn on
ii. Prospectivity of the decision (adversarial with determination of how general
policy apply here)
iii. Generality of the decision (particular case, seriousness of private rights)
Chevron USA v. Natural Resources Defence Council (Chevron Framework)
a. Step One: determine whether there is clear and unambiguous congressional intent.
i. If yes, that interpretation governs.
ii. If no, proceed to Step Two.
b. Step Two: determine if agency interpretation is reasonable.
i. If yes, court defers to agency interpretation.
Dominion Energy
a. When does it make a difference that the agency was interpreting the CWA vs. APA?
i. agency is supposed to only interpret organic statute not APA
ii. In Seacoast , the contested CWA interpretation depends on whether language in
the APA can rebut the interpretation of the CWA
b. Factors:
i. nature of gov. interest
ii. private interest at stake
iii. risk of erroneous decisionmaking
VI.
VII.
VIII.
IX.
c. APA adjudication vs. giving agencies more flexibility
i. Develop a record; APA’s standard is pretty low  not too burdensome
ii. Cost, formalistic, lack of flexibility, redundant checks on the agency
d. Holding: If the statute authorizing a proceeding requires a hearing, but does not clearly
and unambiguously indicate that the adjudication be determined “on the record,” it’s up
to the agency to determine whether the statute requires the kind of on the record
hearing that triggers formal adjudicatory procedures under § 554 of the APA. As long as
the agency’s determination is reasonable, courts should defer to it.
Ways to challenge agency action in court
a. Constitution: due process, equal protection
b. Organic statute
Office of Communication of the UCC v. FCC (1990)
a. purpose of Organic Statute rules who has standing in adjudications  Act had public
interest goals  standing for public interest group
b. statute clearly had a polycentric goal  standing is different than judicial
i. giving standing to public interest groups is also efficient b/c it would be way too
costly to make the commissioner go solicit this polycentric information himself
c. Welfare v. Finch: expediency cannot be done at the expense of shutting parties that
qualify as interested people (according to organic statute) out of process
Envirocare of Utah v. NRC
a. Clarified judicial vs. agency standing (judicial standing is about aggrieved parties, agency
standing defines interest in respect the organic statute’s purpose)
b. Statutory intent: promote competition and ensure public safety
i. Competitor, although affected by the adjudication is not within the organic
statute’s “zone of interest”
ii. Party petitioning here, might have alternative goals of impeding administrative
process, sham petitions, drain on the system
c. Hypo: Had an environmental interest group petitioned, standing probably would be
allowed since statute’s purpose include public safety
i. If Chevron Factor is applied, courts will defer to an agency’s reasonable
interpretation of an ambiguous statute as to who has standing before it. pg. 341
1. statutory purpose (encourage competition, public and envir safety)
2. regulatory burden on the agency (like competitors trying to stall the
licensing process)
3. the interests of the party seeking standing (this was a private party w/
private interests)
ii. Courts may find an interpretation denying beneficiaries agency standing
unreasonable if the statute:
1. requires agency decisions to serve a broad public purpose, and
2. parties and agency will not adequately represent that public purpose
Standing in an administrative action
X.
XI.
a. standing in court: particularized injury in fact and interest within the zone if interest of
the cause of action
b. lots of limitation and gatekeeping in admin adjudication
i. Standing; Political questions; Public policy; Family issues
ii. Courts’ interpretation of standing depends very much on organic statute
iii. Ex.: how do you make out statutory language like “any person whose interest
might be affected…”
c. Determining who has standing
i. Agency standing depends primarily on organic statutes and the APA.
ii. If ambiguous  Chevron
iii. Court-standing doctrine may be relevant if the organic statute is interpreted to
incorporate these principles.
iv. If Chevron Factor is applied, courts will defer to an agency’s reasonable
interpretation of an ambiguous statute as to who has standing before it. pg. 341
1. statutory purpose
2. regulatory burden on the agency
3. the interests of the party seeking standing (issue in this case)
v. Courts may find an interpretation denying beneficiaries agency standing
unreasonable if the statute:
1. requires agency decisions to serve a broad public purpose, and
2. parties and agency will not adequately represent that public purpose
Note on how agency gatekeep who gets to come and complain
a. standing
b. political questions
c. public policy
d. family issues
Morgan I: 1936 The one who decides must consider and appraise the evidence in a substantial
manner and “conscientiously” reach his conclusions based on it.
a. Requests by the πs in the case for a report were denied, and findings were not given to
them until the order itself was issued. Request for yet another hearing were denied.
b. APA Sec. 554(d): “An employee or agent engaged in the performance of investigative
or prosecuting functions for an agency in a case may not, in that or a factually related
case, participate or advise in the decision, recommended decision or agency review
pursuant to § 557, except as witness or counsel in public proceedings.”
i. APA § 557(b): With limited exceptions,
ii. “[w]hen the agency did not preside at the reception of the evidence, the
presiding employee . . . shall initially decide the case unless the agency requires,
either in specific cases or by general rule, the entire record to be certified to it
for decision. . . . When the agency makes the decision without having presided
at the reception of evidence, the presiding employee . . . shall first recommend
a decision.”
XII.
XIII.
iii. APA Sec. 557(c): “All decisions, including initial, recommended, and tentative
decisions, are a part of the record and shall include a statement of—
1. findings and conclusions, and the reasons or basis therefor, on all the
material issues of fact, law, or discretion presented on the record; and
2. the appropriate rule, order, sanction, relief, or denial thereof.”
Morgan II: 1938
a. Appellants requested for intermediate reports were denied by the Secretary
b. Not required to have full court proceedings but more than afforded here is required 
need opportunity for parties to oppose claims
c. The right to a "full hearing" embraces not only the right to present evidence, but also a
reasonable opportunity to know the claims of the opposing party and to meet them.
The right to submit argument implies that opportunity; otherwise, the right may be but
a barren one. Those who are brought into contest with the Government in a quasijudicial proceeding aimed at the control of their activities are entitled to be fairly
advised of what the Government proposes and to be heard upon its proposals before
it issues its final command.
d. The action of the Secretary (adjudicator) in accepting and making as his own the findings
which had been prepared by the active prosecutors for the Government, after an ex
parte discussion with them and without according any reasonable opportunity to the
respondents in the proceeding to know the claims thus presented and to contest them,
was more than an irregularity in procedure; it was a vital defect.
e. In this case, π did not have property advisory, no reporting, no gov. brief, no argumetns,
no opportunity to challenge the facts and there was ex parte communication  Now
APA §557(b) and (c) separation of functions, characterization of hearing (legislative vs.
judicial) requires notice, findings, submissions, conclusions, intermediate reports,
reasons or basis…everything on public record
Armstrong v. CFTC (1993)
a. object of APA §557(c) is to require procedures for specific findings and conclusions so
that agency does not make arbitrary decisions
i. provide parties with reasoned explanation, settle the law for future cases,
furnish a basis for effective judicial review  enough of a record to ensure
adequate judicial review
ii. agency need not provide an independent statement if it specifically adopts an
ALJ's opinion that sets forth adequate findings and reasoning
iii. “Summarily affirming the ALJ’s opinion as ‘substantially correct’ is insufficient
because it does not permit intelligent appellate review”  some showing that
the agency carefully considered the ALJ’s findings, if it deviated from it…why?
b. Was Mr. Armstrong provided adequate notice of his charges?
i. no meaningful fact-finding
ii. no address of the statute or any other authority citing
iii. no explanation of the law and no connection to legal conclusion
iv. “neither the ALJ’s Initial Decision nor the Commission’s opinion addressed §13(b)
XIV.
XV.
XVI.
XVII.
XVIII.
c. So, how elaborate is the statement of findings and reasons
i. simply the need to understand the administrative decision
ii. what’s been decided and the path which the agency followed can be discerned
iii. can’t just be conclusory statements
Why are formalities important?
a. Reviewing court need a record
b. preventative wrong-doing
c. intra-agency uniformity
d. All are good for the agency so that it can protect itself from judicial review and get factfinding deference (price to pay)
A note on ALJ: hearers of on-the-record adjudications (and off the record?)
a. thousands of adjudicators  no uniform practice
b. ALJ’s are not appointed within the agency and are permanent positions
c. if the head of the agency reviews the ALJ’s findings and needs help, he must do so
formally
Central Platte: The impartial hearer
a. State Agency, APA does not matter
b. 2 alleged bias:
i. favors specific instream amount because she’s written on it)
ii. favors instream flows in general
c. factual understanding vs. non-factual prejudgments
i. practically, we cannot “clean” everyone’s every thought
d. general opinions vs. advocacy
e. Rule: a decision maker will be disqualified if she has “prejudged the precise facts at issue”
but not when she has “merely been exposed to or investigated the facts at issue.” She
may even have “form[ed] an opinion” as to the general matter.
f. Liteky v. US (1994) Compare with §445 that governs federal judiciary
i. Scalia: rarely do opinions formed during line of duty disqualify but personal
activities/background is not ok
ii. Kennedy concurrence: appearance of bias is also important
Grolier Inc. v. FTC appearance of impropriety standard – APA standard
a. mandates separation of investigatory-prosecutorial functions away from adjudicative
b. To violate §554(d), an agency employee w/ adjudicative responsibilities must in the
same case or factually-related case (1) engage in ‘investigative or prosecuting functions’
and (2) participate or advise in the decision
c. ex parte information  disqualification
d. 2 dangers that §554(d) addresses
i. “will to win” of investigator
ii. facts from outside the record that she would not be able to shed
e. At the end, not disqualified b/c no finding of suggesting that the ALJ had been
personally involved in the earlier investigation, even though he attended one meeting
Liteky v. United comparison to federal judicial disqualification
XIX.
XX.
XXI.
a. SCALIA – rarely do opinions formed during the line of duty disqualify you from the case
BUT personal activities/background certainly is not OK
i. Line of duty (tolerated maybe even desirable) vs. personal affiliation
b. Judge, who, both at this hearing and a previous one was said to have shown some
animus to their cause
c. “disqualification for intrajudicial partiality is not required unless it would make an fair
hearing impossible”
d. “conscientious judge will, as far as possible, make himself aware of his biases of this
character”
e. KENNEDY concurs but much more skeptical
i. appearance of bias is important
ii. public and self-policing ameliorate a lot of the problems but not as far as
everything is ok, unless it’s impossible to have fair trial
iii. plain statute seems to be concerned w/ appearance w/ wording like
“questionable” partiality
Separation of duties in formal adjudication at the agency level - §554(d) specifically exclude
agency heads; both §554(d) and §557(b) explicitly permit actively involved staff to work with
agency decisionmakers in initial licensing or rate-making proceedings, in ways that would be
forbidden in other on-the-record contexts
Morgan I
a. 50 suits were consolidated into one on rates of Stockyards
b. organic statute required a full hearing before order may be issued
c. “while the acting secretary heard argument, he assumed no responsibility for the
findings or order and the Secretary, who had not heard, did assume that responsibility”
d. testimony was taken by examiner, but no formulation of an intermediate report,
arguments were before acting Secretary; straight to Secretary signature
e. not prescribing rigid rules but this is way horrible
Morgan II
a. Facts: apart from what was said in the oral arguments (which were sketchy), Gov.
formulated no issues and furnished appellants no statement or ummary of its
contentions and no proposed findings. Appellants’ request that the examiner prepare a
tentative report, to be submitted as a basis for exceptions and argument, was refused”
b. Bureau of Animal Industry within DoA conducted all proceedings submitted findings,
submitted to the Secretary who signed it w/ a few changes in the rates
c. Holding: "not the function of the court to probe mental process of Secretary" BUT full
hearing means fair and open, it's more than glancing through some findings
d. Gave rise to §557(b): presiding employee “shall initially decide the case unless the
agency requires, either in specific cases or by general rule, the entire record to be
certified to it for decision”
e. Doesn’t mean that a report is needed from the initial hearing officer the issues is notice
i. but, good agency practice to issue “first recommend a decision” or some kind of
intermediate report where it’s shared by all parties
XXII.
XXIII.
XXIV.
XXV.
FTC v. Cement Institute: Agency head exception by §554(d)  Multiple roles
a. May agencies investigate and then enforce?
b. π’s alleged that Commission had previous published reports to Congress as required by
§6 of Trade Commission act about how some members of the FTC were of the opinion
that there are colluding activities going on
i. duh, that’s why there’s an investigation now
c. Congressional intent: FTC to regulate and monitor  can’t bar their participation b/c of
involvement in duties. Not a denial of due process for the Commission to act in these
proceedings after having expressed the view that industry-wide use of the basing point
system was illegal.
d. Need for expertise  cannot handicap the essence of their jobs by requiring a blank
state of mind  Cement Institute actually get a fair warning to change their behavior.
Saves, in certain instances the requirement of an enforcement action (they know
industry enforcement trend is coming)
e. allowing this enables agencies to take in more informed and polycentric decisions
before enforcement proceedings
f. Actual bias standard No evidence of “irrevocably closed mind”
i. FTC made all the right procedural findings and efforts and there were plenty of
evidence to support what they found
ii. Judges may prejudge/have an opinion on issues of law and policy, not facts
iii. Commissioner’s prior experience is not an automatic disqualifier
iv. allows agencies to take in more informed and polycentric decisions before
enforcement proceedings
g. BUT, also letting FTC regulate the industry w/o letting both sides hash out facts and
issues in an adjudicative process
Ash Grove v. FTC
a. Ash Grove contends that FTC's investigation of the cement industry and subsequent
promulgation of the Economic Report and the Enforcement Policy (1) were without
statutory authority, and (2) caused the Commission to prejudge all the material issues
involved in the adjudicative proceeding instituted against Ash Grove.
b. There was a lot more than just these reports that ALJ relied on
c. long time passed between these reports and the case  turnover at the agency makes
it hard to believe that
Factors to consider when evaluating the stringency of the test for disqualification:
a. Actual bias or appearance of bias? So far, we’ve only seen actual bias for agency heads
b. Total bias or partial bias?
c. Party to prove or agency to prove?
Withrow v. Larkin – medical board approval of license for practicing criminal abortion
a. Due process prohibits both actual bias and “the probability of actual bias.” (415)
b. Mere combination of roles does not demonstrate a probability of actual bias.
c. There is a “presumption of honesty and integrity in those serving as adjudicators.”
d. the combo of investigative and adjudicatory functions does not, without more,
constitute a DP violation  still could show “special facts and circumstances” that
overcome the presumption of honesty and integrity.
e. nominally says its appearance but seems like high bar  actual
f. 3 sources of potential bias
i. prior prejudices before becoming decision maker
ii. ex parte, off the record communication
iii. influence over future events
g. The only categorical bias: target of personal abuse and pecuniary gains
XXVI.
XXVII.
Statutory limitations to ex parte communication
a. definition in §551
b. APA Sec. 554(d): An employee who presides at the reception of evidence pursuant to
section 556 “may not . . . consult a person or party on a fact in issue, unless on notice
and opportunity for all parties to participate”
i. about fact-finding in the record
ii. applies to fact/investigatory employees, not agency heads
iii. communication is w/ anyone, not just outside of agency who might bias
c. APA §557(d)(A): “[N]o interested person outside the agency shall make or knowingly
cause to be made to any member of the body comprising the agency, [ALJ], or other
employee who is or may reasonably be expected to be involved in the decisional process
of the proceeding, an ex parte communication relevant to the merits of the proceeding.
d. APA §557(d)(B) creates a similar bar on those inside the agency who are involved in the
decisional process making ex parte communications to “interested person[s] outside the
agency” that is “relevant to the merits of the proceeding.”
i. but §557 provisions apply to merit of the case
ii. much broader, applies to everyone at the agency
e. so may ALJ consult agency head for fact issue? No
f. what about policy or law? yes
PATCO v. FLRA (1982) FLRA threatens revocation of PATCO’s certification as union if they strike
a. Ex Parte communication
i. Applewhaite and FLRA General Counsel: Applewhaite heard discussion of
memo implicitly related to PATCO in front of GC, both asked general questions
1. no effect or impact
ii. Secretary of Trans. called Frazier and Applewhaite’s office
1. no effect on actual merit of the case
iii. Applewhaite’s dinner w/ Albert Shanker (“interested person” within §557(d))
XXVIII.
XXIX.
1. impropriety, however, the ex parte communication was limited in time
and scope
b. Issue is whether concerns rendered him incapable of reaching a fair decision on the
merits before him
i. pg. 428 bottom are all the factors
c. Remedies when ex parte information is found: disclosure and violating party shows that
there’s no adverse effect  should not disregard his input
d. 2 purposes of §557(d)
i. appearance of impropriety
ii. unfair proceeding of the merits
e. Who is an interested person?
i. “more than just general interest” – influence? public stature?
f. How did Congress intend to be the clout of this rule?
i. what’s the difference between the private dinner vs. picking up the newspaper
and reading Shanker’s sentiments? Appearance of impropriety
Idaho Historic Preservation Council v. City Council of Boise (2000)
a. Here, more concerned w/ appearance, DP traditionally have just been about actual
i. above cases was prejudice, here’s it’s influence
ii. above cases were public on the record proceedings, this is private
b. DP requires that ID be disclosed or opposing party has no chance to challenge  seems
to say no off-the-record stuff at all
c. “when a governing body sits in a quasi-judicial capacity, it must confine its decision to
the record produced at the public hearing, and that failing to do so violates procedural
DP. City Council receipt of unrecorded phone calls from the public
d. May take calls from the public but must disclose ID of callers
The revolving door
a. 14% annual turnover rate at DOJ. Abraham Sofaer, Libya and the Appearance of
Impropriety, 21 J. Leg. Prof. 23 (1996)
b. About half of agency commissioners had related prior public sector experience and only
1/5 came from regulated industry. Ross Eckert, The Life Cycle of Regulatory
Commissioners, 24 J. Law & Econ. 113 (1981)
c. About half of agency commissioners took jobs w private sector after leaving while only
11% took jobs in the related public sector. Eckert, The Life Cycle
d. Median tenure of political appointees is about 2 years, and 33% serve for less than 1.5
years. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000)
e. Statute bans
i. For lifetime, participation in particular matters in which the former employee
was ‘personally and substantially’ involved, either informally or formally.
ii. For 2 years, counseling, aiding, consulting, advising, or assisting others so
appearing.
iii. For 2 years, doing the above as to all matters formally under her official
responsibility.
f.
iv. For one year, high-level former employees completely forbidden from making
any approach to the agency, formal or informal, oral or written, that seeks to
influence outcomes, including in a rulemaking and regardless of whether matter
was pending during her tenure (though agency not prohibited from seeking
advice).
The statute allows:
i. Appearing in whatever doesn’t concern a “particular matter” she was
impermissibly connected with (unless a high-level employee subject to one-year
ban on all appearances)
ii. Her firm partners and associates not affected
iii. After two years, firm partners and associates can have her assistance even re
matters in which she could not appear
Informal Rulemaking
I.
II.
Overview – Courts’ procedural review of agency actions
a. Judiciary is much more aggressive in testing the validity of regulations than statues but if
valid ones have legislature effect
b. Formal rulemaking has virtues of a trial-type process, early formal
c. Organic statutes rarely require on-the-record hearings except a few cases like the Fed
Food Drug and Cosmetic Act
i. future rate-making with general and/or particularized applicability usually
requires that rate be set based on evidence on the record
ii. rules that are issued after a hearing, required by statute, and reviewable on the
basis of evidence adduced at the agency hearing  on-the-record
iii. But formal rule-making is not triggered by statute that merely says that rulemaking requires hearing
APA §551(d) definition of rulemaking
a. A rule “means the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of an agency
and includes the approval or prescription for the future of rates, wages, corporate or
financial structures or reorganization thereof or of valuations, costs, or accounting, or
practices bearing on any of the foregoing.”
b. 3 big exceptions to the notice and comment rulemaking
i. § 553(a)(2): Exception for “matter relating to agency
ii. § 553(b): Unless otherwise required by statute, agencies don’t have to follow
notice-and-comment procedures
1. to issue “interpretive rules, general statements of policy, or rules of
agency organization, procedure, or practice,” or
III.
IV.
V.
2. when it “for good cause finds . . . that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest
US v. FL. East Coast RR Co. (1978)
a. “hearing” in organic statute ≠ formal rulemaking
b. uniform national rates are not discriminatory  no need for heightened scrutiny
Sugar Cane Growers of FL. v. Ann M. Veneman (2002)
a. Department of Agriculture, pursuant to the Food Security Act, initiated PIK program
b. In 2000, the Agency enacted the rule w/o notice and comment and no one challenged
c. In 2001, when the renewal comes up, the Agency only published in the FR, a “Notice of
Program Implementation” and waived the eligibility restriction in the 2000 PIK program
 participation in the 2001 program regardless of participation in the past program
d. π challenges here that Agency should not have promulgated a rule w/o notice and
comment rulemaking
e. Δ’s argument that this falls under the §553(a)(2) exception  Ct. rejected this argument
saying that it’s simply absurd to call this anything but a rule
f. An utter failure to comply with notice and comment cannot be considered harmless if
there’s any uncertainty to the effect of the failure
g. Remedy: remand???
i. difficulty in undoing the program that is already in place
ii. π wants that as long as APA was violated, Agency action needs to be vacated 
not true, have to consider seriousness of violation and potential disruption
iii. Judicial authority is disputed whether court has to vacate the Agency action,
even though in §706, under A&C, “shall hold unlawful and set aside
Vermont Yankee Nuclear Power v. NRDC (1978)
a. The procedures warranted and the gravity of the matter being decided matters  Scalia
would “settle for the APA” if there were 10 or 15 different menu items to choose from
b. should we let the agency be its own limit to power? Ossification?
c. 2 schools of thought on highly technical fields
i. Judge Bazelon: when judges don’t understand the science  procedure is
where judges may add value to prevent abuse
ii. Judge Leventhal: courts have an obligation to do substantive review because
Congress has delegated so much of its power to agencies
d. Permit to build and permit to operate were both adjudicatory hearings under Atomic
Energy Act
e. NRDC followed all the procedures under APA, π wanted more
f. To questions of a more general character that did not turn on facts about either the
particular plant or people that would be affected, the agency chose to use rulemaking
 expectable impacts, universal to basically all plants can be expressed as a relationship
of units of power generated or # of fuel rods used  generally applicable rule
g. This route would substitute procedural rights of rulemaking for adjudication arguably
insufficiently rigorous and open to public control
VI.
VII.
i. however, §553 requirements are already hybrid rulemaking procedures that
have a lot of formal trial-like procedures baked into them
h. Court has held that generally speaking, APA sets maximum procedural requirements
in rulemaking, Agencies may add to them, but courts may not randomly add to them
i. Agency expertise are much better than courts to enact additional procedures
ii. in cases where a small minority will be isolated and effected, maybe more
procedures would be required  not the case here
iii. court should not assume that more procedure automatically result in better
decisionmaking
i. Monday Morning Quarterbacking j. Court held that NRDC acted well within its statutory authority
k. NRDC objected to Vt. Yankee’s building permit and applied for a hearing but
environmental issues were excluded from the hearing  instead the Agency suggested
2 rules to deal w/ the environmental impact
NRDC v. EPA (2002) - §553(b)(3)
a. “The notice shall include . . . (3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved.”
b. The final rule “must be a logical outgrowth of the proposed rule” such that interested
persons could reasonably “have anticipated the final rule[] from the draft.” (pg. 521) It
cannot evince a “fundamental policy shift.” (pg. 522)
c. “In determining this, one of the salient questions is ‘whether a new round of notice and
comment would provide the first opportunity for interested parties to offer comments
that could persuade the agency to modify its rule’”  not afforded here
d. “EPA’s change of position from the draft permit was not ‘foreshadowed in the proposals
and comments advanced during the rulemaking’”
e. Publication and reporting requirements §552(a)
i. requires (i) publication in Fed. Reg. of “statements of general policy or
interpretations of general applicability formulated and adopted by the agency”
and (ii) that a person not be “required to resort to, or be adversely affected by,”
any such matter if not published in Fed. Reg.
ii. lists things other than those required to be published in Fed. Reg. which have to
be made “available for public inspection and copying,” including “final opinions”
in adjudications and “those statements of policy and interpretations” not
published in Fed. Reg. Also says that any “final order, opinion, statement of
policy, interpretation, or staff manual or instruction” that affects the public can
only be relied on or cited by agency against another party if it has been
appropriately indexed and made available, or actual and timely notice given.
iii. requires agencies to make public, on request, any properly identified factual
data in agency records, subject to some narrow exceptions.
US v. Nova Scotia (1977)
a. Commissioner took cognizance of the specie by specie suggestion but, nevertheless,
sought to impose TTS to all species
b. Judicial review A&C (§706(A)(2)) or substantial evidence is on the “whole record”
already in existence
i. Included scientific data that commissioner said he relied on but not disclosed
ii. Additional information might be introduced if to address an issue not present at
the time of rulemaking
c. Scientific data
i. although agency may rely on outside expertise, when pertinent information is
available AND agency doesn’t have specified expertise  need to disclose
especially agency collected the data without participation of interested parties
ii. no connection between data and rule
iii. Court doesn’t take submission and make another decision but will determine if
indeed it took into consideration, all the factors in Overton Park
iv. Rule: This kind of behavior leads to Overton Park type of A&C
v. Rule on pg. 531, should be able to let judicial review to be effective and achieve
adequacy under §553(c), statement does not have to address every item of fact
or opinion in the comments, but it must
1. indicate what “major issues of policy” the agency considered and why it
resolved them as it did; and
2. answer any “vital questions” raised in the comments that are of “cogent
materiality.” (531)
vi. FDA here raised the concern but never answered specie-specific
vii. Also didn’t consider commercial feasibility  held regulation invalid
1. Additional information to respond to comments is OK
d. 3 different definitions of “record”
i. material available to the public as the basis for commenting upon a proposed
rule during the proceeding; “record for participation”
ii. material that informs the agency’s own decision-making processes (most
inclusive); “record for decision”
iii. documentary collection presented to a court as basis for decision; “record for
review”
iv. Relationship among the records:
1. In the judicial framework  all three of these are pretty much the same
2. In the legislative  vastly different (public record can be almost
anything, rumor, lobbyist; decision record are things like hearings,
debates; judicial record doesn’t need to include any of these things)
3. APA tells very little of these records: §706 judicial review is based on
“the whole record.” §553, record for participation: “terms or substance
of proposed rule”; “opportunity to participate”; “concise and general
statement of basis and purpose”  somewhere in the middle
e. For judicial review, usually cannot add on new studies/evidence ad hoc
f. Does not have to include less formal materials such as “draft reports”
g. Yale L.J., William F. Pedersen, pg. 539: record of informal rulemaking should consist of
i.
ii.
iii.
iv.
v.
vi.
VIII.
IX.
notice of proposed rulemaking and documents referred to in it
the comments and documents submitted by interested persons
transcripts of any hearings held in the course of the rulemaking
reports of any advisory committees
the agency’s concise general statement of final order and any doc referred to it
other factual information “not included in the foregoing that was considered by
the authority responsible for promulgation of the rule or that is proffered by the
agency as pertinent to the rule.”
1. Lots of difficulty with this set of information because there’s no central
decision maker, or uniform decision making process
Independent US Tanker Owners Committee v. Dole (1987)
a. Secretary had acted A&C by providing an inadequate discussion of the basis and
purpose of the rule by §706(2)(A)
b. concise and general statement should indicate the major issue of policy that were raised
in the proceedings and explain why the agency decided to respond to these issues as it
did, particularly in light of the statutory objectives that the rule must serve
c. “Policy may well be defensible, yet it is not among the objectives specified in the Act”
i. decision making authority includes freedom to consider factors not mentioned
explicitly in the governing statute, yet she’s not free to substitute new goals in
place of the statutory objectives w/o explaining how these policies are
consistent with statute
ii. must spell out in more detail how her decision to adopt this rule and reject
alternative measures
iii. Agency has to do
1. identify the major policy issues and alternatives raised during the
rulemaking process, and
2. explain why, given the objectives of the statute under which the
regulation is promulgated, the agency
a. resolved those issues as it did
b. rejected the alternatives that it did
iv. Agency cannot do
1. substitute new goals in place of the statutory objectives
d. vacate the rule because the Secretary’s omissions are quite serious and raise
considerable doubt about which of the proposed alternatives would best serve
e. Notes:
i. strict judicial review of agency policy decisions is conservative pressure in favor
of the status quo
ii. Internal processes agencies used: Team Model, Hierarchical Model, Outside
Advisor Model, Adversarial Model  who is the ultimate decision maker?
iii. paper hearings
iv. Internet…elements of the referendum, public participation results are mixed
SEC v. Chenery Corp. (1947): “Choosing” a mode of policymaking
a. Agency action was struck down by the courts in Chenery I because it was not supported
by clear, proper and adequate basis suggests that this kind of agency action must be
taken through informal rulemaking
b. This time around Agency action (in rejecting reorg plan “expressed its reasons with a
clarity and thoroughness that admit of no doubt as to the underlying basis of its order”
c. Agency “was not bound by settled judicial precedents in a situation of this nature.”
i. In this particular case, the Commission was asked to grant or deny effectiveness
to a proposed amendment to the reorg by order  exactly what’s been done
ii. Although prior decisions recognized the possibility of a new general rule here,
the Commission cannot be punished for not promulgating a general rule that it
did not foresee  the absence of this rule cannot withdraw all power from that
agency to perform its statutory duty in this case to deny/grant order
iii. Chenery Factors that supports adjudication:
1. The agency lacks sufficient experience
2. The problem is too specialized and variable
3. The problem was unforeseen
4.  harm that would result from implementing a policy that violates the
law has to outweigh the harm from the retroactive effect of a policy
that conforms to the law.
iv. The function of filling in the interstices of the Act should be performed as much
as possible through quasi-legislative process of rulemaking but not rigid
v. Chenery does argue that §553(b) notice: “General notice of proposed rule
making shall be published in the Federal Register, unless persons subject
thereto are named and either personally served or otherwise have actual notice
thereof in accordance with law.”
vi. “The choice made between proceeding by general rule or by individual, ad hoc
litigation is one that lies primarily in the informed discretion of the
administrative agency
1. Retroactivity must be balanced against the mischief of result
2. Here, the SEC reasonably balanced the potential harm to investors
3. “Our duty is at an end when it becomes evident that the Commission’s
action is based upon substantial evidence (§706) and is consistent w/
the authority granted by Congress”
d. Note: advantages of rulemaking procedures pg. 565
i. higher quality policy decisions
ii. broad effects of its policy
iii. avoids cost of relitigation
iv. clearer rules than adjudicated decisions
v. clearer notice and avoid disparate temporal impact
vi. allows public input
e. It’s not clear when, in practice, agency “choice” between rulemaking and adjudication is
ever likely to be forced by judicial oversight
X.
XI.
XII.
XIII.
Bell Aerospace Co. v. NLRB I (1973): where rulemaking could be required
a. Issue is are buyers managers and therefore cannot unionize
b. There is substantial evidence (§706(A)(5)) that Bell’s buyers were not sufficiently high in
the hierarchy to constitute “managerial employees”
c. This is an appropriate case in which to give effect the Chenery comment where quasilegislative process is called for.
d. Wyman-Gordon: cannot avoid rulemaking procedures by adjudicating – pg. 569
e. Board here is prescribing new policy, not just to the 25 buyers here, but to fit all cases
f. Also reversing a long-standing and oft-repeated policy on which the agency has relied
Bell Aerospace Co. v. NLRB II (1974): where rulemaking could be required
a. Issue here is whether on remand the Board must invoke rulemaking procedures if the
buyers are no “managerial employees” under the act  in-line w/ long standing ind.
b. It’s doubtful that a generalized standard of marginal utility could be framed
c. Not a case in which some new liability is sought to be imposed on ind. for past actions
d. Board has discretion to decide that adjudicative procedures may also produce relevant
information necessary
e. Note: Adjudication sometimes is a shield for public and political criticism for highly
controversial yet highly factually /diverse regulatory bodies like NLRB
i. Failure to use rulemaking is sometimes less of a conscious effort than
inefficiency impediments
ii. CBS: Courts review agency choice between rulemaking and adjudication in a
very roundabout way. Usually requires reasoned explanations for other
discretionary choices but no reason-giving requirement for preferred
policymaking form. Possible explanations:
1. courts have control over the consequences of choice, people bring suits
and overtime, courts can naturally influence through judicial decisions
Presidential Management of the Regulatory State
ATA, Inc. v. FAA (2002) – only in agency interpretation of its own regulation (after notice and
comment)  very deferential
a. ATA challenges the Whitlow letter, which explains the “look-back test”
b. “Because the Whitlow Letter constitutes the FAA’s interpretation of its own regulation
that interpretation must be afforded substantial deference and upheld unless ‘plainly
erroneous or inconsistent with the regulation’”
c. The court found that the new formula is indeed consistent with FAR 121.471
d. APA challenges:
i. Substantive vs. interpretative rule
1. §553(c) exempts “interpretative rules” and “general statements of
policy”
2. If an interpretation is “‘fairly encompassed’ within the regulation it
purports to construe” it is an interpretive rule, not a substantive one,
and thus is exempt from § 553 NAC requirements.
3. But if the interpretation “carries the force and effect of law” it is
substantive and must be promulgated pursuant to §553.
a. it appears on its face to be binding, or
i. considerations include:
ii. use of mandatory language,
iii. terms indicating the rule will be regularly applied,
iv. in some circumstances, language that indicates parties
can rely on it as a safe harbor, and
b. agency applies the rule with binding effect.
4. Relation to Prior Agency Interpretations
a. Rule: When an agency has given a regulation “a definitive
interpretation,” and later “significantly revises” or
“fundamentally changes” that interpretation, the agency has in
effect amended its rule, which requires notice and comment.
(709) See Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C.
Cir. 1999) (holding that Notice interpreting FAA regulations to
apply to Alaskan hunting guides after 30 years of exempting
them could only be changed pursuant to informal rulemaking
procedures).
b. APA requires if an interpretation “adopts a new position
inconsistent w/ existing regulations.” (Whenever an agency
adopts a clear interpretative rule , the later reverses it 
rulemaking procedures)
c. Court decided that even though agency had not previous taken
the position expressed in the letter, it only addresses an
unresolved part
e. Note:
i. §§552 and 553 clearly anticipates that these interpretive rules do not have the
same force as statutes, but they are relied upon
ii. regulatory vagueness is something that courts care about unlike legislation
iii. does a rule have legal effect? American Mining
1. would there be statutory basis for the action absent the interpretation?
2. whether the agency has published the rule in CFR
3. explicitly invoked its general legislative authority?
4. amends prior legislative rule?
iv. Misalignment of incentives: agencies are incented to issue vague regulations
knowing that they may fill them in however they want
v. US v. Chrysler Corp.: “manufacturer cannot be found to be out of compliance
w/ standard if NHTSA notice had not be given”  read to imply that had an
interpretive rule been issued, it would have been ok
vi. debate about new agency interpretation inconsistent w/ regulation’s language
or existing interpretation? Typically all hang on reasonableness
XIV.
1. DC is the only circuit that says no reinterpretation unless notice & com
vii. it is accepted however that publication rules can be relied upon only in the
manner of precedent, meaning those who might be adversely affected by them
must be given the opportunity to argue their impropriety or inapplicability
GE v. EPA (2002)
a. GE requests for review of the PCB Risk Assessment Review Guidance Doc
b. Toxic Substances Control Act specifies ways to be compliant and then an option to apply
for alternative method if doesn’t “pose unreasonable risk of injury to health or the
environment”  Published Guide has 2 ways of calculating risk
c. GE contends that the guidance was a rule not general statement of policy
d. Organic act says that all RULES are subject to judicial review, is this a rule?
i. §551(4) specifically says that only legislative rules are subject to review
ii. GE test: (1) impose and rights and obligations; (2) genuinely leaves the agency
and decisionmakers with discretion
iii. EPA test: (1) Agency’s own characterization; (2)whether action was published in
CFR; (3)binding effects on private parties or agency
iv. Court decides that “ultimate focus of inquiry is whether agency action partakes
fundamental characteristics of a regulation, i.e. has force of law”
1. In practice, appears on its face to be binding and have mandatory
language
2. regularly applied
3. does agency apply them in a binding way
e. Notes:
i. Chamber of Commerce v. DOL (1999): even if the rule was “optional”,
practically, the Directive places the burden of inspection upon those employers
that fail to adopt the rule and will have a substantial impact upon all employers;
under the rule, pretty much every employer who doesn’t comply is guaranteed
to be searched.
ii. Center for Auto Safety v. NHTSA (2006): CBS pg. 49 note case, latest word on
this issue coming out of the D.C. circuit much less stringent requirements on
the agency; distinguishes from GE
1. focuses on GE and American Mining factors
2. left 2 things unanswered: is just practical effect or facial language by
themselves enough?
3. no legal consequences
4. no definition of legal rights/obligations
5. has not commanded, required, ordered, or dictated
6. no officials are bound to apply the guidelines in enforcement action
7. unlike GE, “nothing to indicate that automakers can rely on guidelines
as a ‘norms or safe harbor by which to shape their actions’”
8. de facto compliance is not enough, binding needs legal consequences
XV.
iii. CBS pg.49: are statements of policy subject to judicial review? §704 only
applies to final/binding agency action.
Executive Order 12,866 (Clinton)
a. Doesn’t apply to independent agencies
b. Benefits need only “justify” the costs, not necessarily outweigh them.
c. OIRA reviews “significant regulatory action”
i. Action is significant if:
1. $100 Million + in economic impact
2. Creates inconsistency between agency policies
3. Alters budget
4. Raises novel legal or policy issues
ii. If OIRA and agency conflict, then it is settled by the president
d. Executive Orders can’t override statutes, might have some power where administrator
has some discretion.
Judicial Review: Scope and Intensity of Review
I.
II.
III.
Overview – Courts’ substance review of agency actions
a. This whole section is concerned about the grey area between de novo and complete
agency deference since Congress authorized (1) agency action but then also (2) judicial
review
b. appellate court/trial court vs. court/agency relationship
i. agencies have political responsibilities
ii. there’s Congressional and Presidential oversight of agencies
c. Perspectives on judicial review – pg. 903
i. Judicial review gives agency action legitimacy
ii. judicial review set boundaries on the agency’s delegated powers form Congress
iii. Should not substitute judicial decision for naturally administrative decisions
iv. degree of review should respond to the nature of the action and specialization
v. Are judges truly shielded from political views? There are arguments and
evidence that a point to both directions
d. Source of authority for judicial review – not all courts always go to APA §706: common
law, due process, constitutional mandate for judicial oversight of legislatively delegated
powers, statutory (APA and organic statutes)
Factual determinations
a. Louis L. Jeffe: “a finding of fact is the assertion that a phenomenon has happened or is
or will be happening independent of or anterior to any assertion as to its legal effect”
b. Judicial review of trial court fact-findings are very deferential (clearly erroneous) vs.
agency will be substantial evidence for on-the-record proceedings
c. ICC v. Union Pacific RY (1912) establishes “substantial evidence test”, now codified in
APA: when fact-finding is on the record, the court would not consider the expediency or
wisdom of the agency order if SE  agency findings are conclusive
Universal Cameral Corp v. NLRB (1951) – Judicial review on Factual determinations
a. Main issue is does the APA standards of review apply when review NLRB orders
IV.
b. Organic act says “supported by evidence”, which this court = SE
i. relevant evidence as a reasonable mind might accept as adequate to support a
conclusion  more than create a suspicion of the existence of the fact to be
established  has to be enough for a refusal to direct a verdict in jury trials
ii. the supporting evidence is substantial when viewed in the context of the entire
record
c. What evidence to consider? agency-developed record or “whole record”
i. dug through the legislative history of both organic act and APA to find that “by
substantial evidence on the record considered as a whole.” before the above
statutes. Then the two statutes were promulgated to give uniformity and
stricter practice
ii. “In the first place, the evidence must be substantial, in the second place, it must
still look substantial when viewed in the light of the entire record.”
iii. must look at records that fairly detracts from its weight
iv. So what additional pieces of info does the court now have to look at
1. report of the examiner on questions of fact that was rejected by NLRB
2. reviewing court may give this report less weight, but have to look at it
3. NLRB doesn’t have to agree w/ the examiners but the court should look
into the merits of both sides
d. Notes:
i. Relative expertise of court/agency matter. Ex. Federal Circuit should have a
stricter standard in reviewing PTO action b/c it was created to harbor PTO
expertise
ii. Penasquitos v. NLRB: court looked at more than just NRLB’s findings of fact on
whether employee was lying, looked back at his expressions…, however
deference was given to NLRB as to the factual labor-mgmt relationships
iii. Two ways that the justice used to substantiate the standard: legislative history
and historical controversies that produced the Act
ADAPSO v. Fed (1984) – adjudication and rulemaking under SE as prescribed by organic statute
a. Bank Holding company Act seem to extend SE standard to both order and regulation
b. Court of Appeals applied separate standards to the order and Reg Y
c. Scalia goes through rigorous textual and structural analysis to get at A&C = SE
i. SE is just a subset of A&C, substantially unreasonable, substantially deviates
from statute’s intent (A&C) is basically SE
ii. SE seems to mean that evidence found in the record of closed-record
proceedings to which it exclusively applies. BUT, informal rulemaking
procedures are also the administrative record that the decisionmaker had at the
time of the decision. It’ s also not a completely open record
iii. Logically, it would be counter-intuitive if the broad rulemaking process required
less scrutiny than the particularized adjudication
d. Lots of statutes have the word substantial evidence standards for rulemaking and some
courts have interpreted them as to mean that Congress specifically carved out
V.
VI.
exceptions to the APA. Scalia thinks that it’s not right to impute that Congressional
intent and the Bank Holding statute is consistent w/ APA.
e. Few cases after this has rejected the convergence of A&C and SE (pg. 972)
i. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991) (finding that SE
standard required by the Toxic Substances Control Act does not converge with A
&C standard when applied to informal rulemaking);
ii. AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992) (holding that the SE standard
required by OSHA for review of informal rulemaking is ‘harder’ than the ‘more
deferential’ A & C standard)
NLRB v. Hearst (1944) – Judicial review of law application
a. Congress did not define whether “employees” included newsboys the Board found
that newsboys were employees because of the nature of their work vs. Hearst argues
that the Board should have adopted the common-law definitions of employees
b. 2 options: refer to local state law or distill a general rule from all the state laws
i. Cannot be according to common state law b/c definition would be incongruous
across the nation
c. Congress meant for uniformity and the answer of who should be included should look to
what definition would support the eliminating the mischief that the organic Act is to fix
d. Purpose of the Act: avert “substantial obstructions to the free flow of commerce”
resulting from “strikes and other forms of industrial strife or unrest”.
i. encourage collective bargaining to remedy individual worker’s inequality
e. Factors that matter when looking at whether a person is employee
i. dependent on his daily wage
ii. unable to leave the employ and to resist arbitrary and unfair treatment
f. We do not need to determine what employee means, Congress clearly left it to the
agency. (expertise, familiarity, numerous industries)
g. A&C review
i. “warrant in the record” and reasonable basis in law
ii. whether the evidence establishes the material facts
Skidmore v. Swift & Co. (1944) – no deference when not binding
a. lower court found that “as interpreted by the Administration and courts”, workers
stipulated work time as not “working time”  conclusion of law
b. Congress did not utilize the services of an administrative agency to find facts to
determine in the first instance whether particular cases fall within or without the Act.”
 it’s the court’s job
c. Administrator’s rulings “provide a practical guide to employers and employees as to
how the office representing the public interest in its enforcement will seek to apply it…”
d. factors pointing to why it’s not binding
i. “There’s no statutory provision as to what, if any, deference courts should pay
to the Administrator’s conclusions”
ii. no conclusive even in cases where they directly deal with
VII.
VIII.
iii. not an interpretation of the Act or a standard for judging factual situations
which binds a district court’s processes
iv. but they’re very good persuasive guidance if grounded in reason
v. “thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements and all those factors which
give it power to persuade, if lacking power to control.”
Citizens to Preserve Overton Park, Inc. v. Volpe (1971) – A&C review in informal adjudication
a. DOT Act of 1966, §4(f) and Federal-Aid Highway Act of 1968 § 18(a)
i. declare national policy to make “special effort to preserve” public parks, and
other lands.
b. state that the Secretary “shall not” approve projects that require the use of parkland
that is of “national, State, or local significance as determined by the Federal, State, or
local officials having jurisdiction thereof” unless
i. “there is no feasible and prudent alternative to the use of such land, and
ii. such program includes all possible planning to minimize harm to such park.”
c. A&C is not SE but a “substantial inquiry is necessary”
i. reviewability is presumed unless specified otherwise in the organic statute by
clear and convincing evidence
ii. “Committed to agency discretion” exception is a very small set of cases
d. thorough probing and in depth and amounts to substantial investigation
e. Marshall 3 step test
i. Step 1 explained: Court says will pass this first step if secretary reasonably
believed no alternatives or unique problems
ii. Step 2 explained: consider the relevant factors? Did they make a clear error of
judgment? Court says this is searching but should not substitute its judgment
for that of the secretary.
iii. Step 3 explained: whether he was required to make formal findings of fact:
court says he wasn’t—review will be of full administrative record before
secretary at the time he made the decision. If secretary conclusions not clear
may be made clear by secretary testimony or post hoc findings by the secretary
f. Policy/Significance: Overton’s requirements for arbitrary and capricious are ex. Of how
courts can shape agency decisions even where agencies are supposed to have discretion
i. After Overton most agencies even taking informal action will probably produce
something fact finding like to cover their ass
ii. Court says not requirement to find fact but the likely result is agency will do
something like that
MVMA v. State Farm (1983)
a. National Traffic and Motor Vehicle Safety Act of 1966 reduce number of traffic
accidents and deaths and injuries related to traffic accidents
i. Mandated that Secretary of Transportation or his delegate make practicable
safety standards in objective terms that
b.
c.
d.
e.
f.
g.
ii. Secretary is directed to consider “relevant available motor safety data” to
determine whether a proposed standard is “reasonable, practicable, and
appropriate” for the particular type of vehicle and “the extent to which such
standards will contribute to carrying out the purposes”
issues-standard 208 requiring installation of seatbelts, but congress saw seatbelt use
was low  Eventually included and excluded passive belts  another at least 3 more
modifications  Reagan campaign  agency invokes rulemaking and rescind 208
passive restraint requirements. Secretary reasons:
i. Auto makers Planned install detachable in most vehicles and since people could
unclick not provide as much benefit
ii. Diminished safety benefits would undermine public faith in safety reg in general
and passive restraint specifically
State Farm settles that Vermont Yankee did not overrule Overton Park
Hold: Arbitrary and Capricious review governs both the making and rescinding of
informal rules
Reasoning: State farm involves Overton’s heightened second step
i. subpart 1 considered:
1. Obligation to consider relevant factors (says not requiring all but some
policy alternatives) (policy alternatives that derive from existing
standard must be considered):
2. Why not airbag only
3. Also seems to be problem with non-detachable: court says the agency
failed to consider this previously approved alternative or to explain why
that would be erroneous
ii. subpart 2 considered: Did the Agency Make a clear error in Judgment 
“reasonable analysis”: This seems to be animating analysis of detachable belt
1. Court beefs this prong up
2. Did the agency consider the relevant factors including policy
alternatives that the agency had previously found to meet the statutory
purposes, and
3. Did the agency provide a reasoned analysis that provides a rational
connection between facts found and the choices made (not clear error
of judgment as in overton; positive requirement now set)
4. This starts to sound like in Nova Scotia and Independent US Tanker
iii. overall standard: Searching and careful, but narrow inquiry. Court not to
substitute its judgment for Secretary’s.
Agency can rescind due to serious uncertainty but still must support that on the
record and explain itself. Suggests requirement for agency to explain why on the record
with evidence but it is not necessary
What record evidence court say should have addressed:
i. Public opinion surveys that most people forget belt not don’t want to wear
ii. And numbers that 20-40 % wear some belt anyway.
IX.
iii. Maybe public wouldn’t detach belt anyway
iv. way beyond Hearst
h. Arbitrary and Capricious v. Substantial Evidence after State Farm
i. How does this seem to stack up to substantial evidence?
1. Does seem like arbitrary and capricious getting closer to this more
detailed analysis of the record
2. Might even say under State Farm, it exceeds the substantial evidence
standard
ii. Here it seems: the court seems to be going even further in requiring an agency
not just to support its action but to go through the record and discount other
reasons, this may even go beyond arbitrary and capricious
iii. But there is an interpretation that doesn’t push it pass substantial evidence-you
have inconclusive evidence, in favor of safety, and no evidence against-this
looks more like substantial evidence
1. The same (SCALIA, and she agrees)
2. Arbitrary stronger
3. Substantial evidence smaller
Chevron V. NRDC (1984)
a. Congressional Amend. of the Clean Air Act of 1977 were lengthy, detailed and complex.
i. They did not disturb the prior definition of “stationary source;”
ii. but did add a new definition for “major stationary source.”
iii. The legislative history of the amendments contained no specific comment on
the “bubble concept” or the question of whether a stationary source was
permissible under the permit program.
b. Step 1:
i. language of statute doesn’t precisely address whether definition is allowed
ii. Legislative history
1. doesn’t resolve
2. What doesn’t court finding leg history: it only finds some general
comments but it says those comments aren’t made with this narrow
issue in mind
3. Must be precisely focused and there are certain leg. sources you look at
iii. Chevron seems to set a high bar for saying congress has directly spoken
c. Step 2: If the statute is “silent or ambiguous with respect to the specific issue,” and that
issue has been administratively interpreted, the court asks whether the agency’s
interpretation is “reasonable” and therefore “permissible.”
i. doesn’t matter if this delegation of question resulted from conscious
congressional decision or whether congress failed to consider or whether
congress had tried but nobody could agree
ii. As long as ambiguity is there it counts as this kinds of delegation
X.
iii. Court seems to be saying once there is more than one way to permissibly
interpret it becomes a policy question which to adopt and the court specifically
says there is an explicit separation of power issues here not the court’s job
iv. Here the court saying once this is a policy issue, this is for the electorally
established branches to carry out
v. How does the court does it determine if permissible:
1. Looks at consideration agency took
2. That this was in agency’s expertise
3. Court isn’t particularly clear about its reasonableness test. Implicitly:
a. Fact that there is expertise
b. Just because the agency has changed its definition doesn’t make
it unreasonable (this very fact shows it is flexible)
c. Does start in this case by identifying statute’s conflicting policy
purposes (protect environment and foster business
i. Court asks whether agency has reasonably explained
how its interpretation serves these conflicting purposes
d. Suggest this will create econ incentives for power plants to come up with cheapest way
to avoid pollution
e. There is still this flavor like in State Farm of having to be some explanation from agency
about why reasonable
f. Chevron similarity with Overton
i. Is there Chevron similarity-1a looks like step 1; 2b looks like 2; 1b is a little fuzzy
–maybe step 1 or step 2-why? A number of admin scholars argue that at step
two chevron is indistinguishable from this Overton view
ii. Might say Overton and Mead just elaborate Chevron where there is a gap and
the agency is acting by procedure or mere non-binding interpretation???
iii. One way: seems in Overton what will define the scope of authority is affirmative
action by Congress whereas in Chevron seems like negative grant of authority
US v. Mead Corporation (2001)
a. tariff classification has no claim to judicial deference under Chevron, there being no
indication that Congress intended such a ruling to carry the force of law  Skidmore
b. text in regulation that defines “ruling letters”: “official position of the Customs
Service …is binding on all …personnel…until modified or revoked. the principle [of the
ruling] maybe cited as authority in the disposition of transactions”
c. “subject to modification or revocation w/o notice to any person, except the person to
whom the letter was addressed”
d. since ruling letters respond to transactions of the moment, they are not subject to N&C
e. most ruling letters contain little or no reasoning but simply describe goods…tariff
f. Court of International Trade didn’t comment on deference but ruled against Mead’s
challenge for changing categorization
g. “When Congress has explicitly left a gap for an agency to fill, there is an express
delegation of authority to the agency to elucidate a specific provision of the statute by
XI.
XII.
regulation” Chevron, “ensuing regulation is binding in the courts unless procedurally
defective, AorC in substance, or manifestly contrary to the statute
h. Congressional delegation of power doesn’t have to be express  expected of agencies
to be able to speak w/ force of law and fill statutory gaps, but not always the case
i. The factors that determine deference:
i. degree of agency’s care
ii. consistency
iii. formality
iv. relative expertness
v. persuasiveness of agency’s position
vi. Also Skidmore factors, see above
vii. “it is fair to assume generally that Congress contemplates administrative action
with the effect of law when it provides for a relatively formal administrative
procedure tending to foster the fairness and deliberation that would underlie a
pronouncement of such force” sometimes Chevron Deference can be found
even s/ no admin formality
j. But, although lack of formality is not dispositive, there are lots of other factors
i. textually, no indication that Congress meant to delegate authority to issue
classification rulings w/ force of law
ii. reference to binding authorities in the statute is not meant to be the legislative
type  precedential value alone is not dispositive
iii. 10k to 15k of these are made w/o much reasoning
iv. in sum  really interpretations contained in policy statements
k. Skidmore deference doesn’t mean none at all, depending on expertise, it’s a good
guideline for the courts to use
l. SCALIA, dissent
i. ambiguity in statute means congres intended agency discretion
ii. would work off “original formulation of Chevron” which overruled Mead
iii. majority causes confusion by breathing new life into Skidmore
1. messy analysis of the strength of the legal force of rules
2. sliding deference
3. inefficiency  to much formal redundancy
4. Ct. can substitute its opinion for agencies but not reverse
Edelman v. Lynchburg College (2002)
a. EEOC is not given rulemaking authority to interpret the substantive provisions of Title VII
of the Civil Rights Act of 1964…The EEOC, however, has been given “authority from time
to time to issue…suitable procedural regulations to carry out the provisions of Title VII
i. Court decided, in this instance, this was a particular carved out area where
there is delegated authority to promulgate the rule
ii. went through N&C
iii. codified in the CFR
Barnhart v. Walton (2002)
a. even ordinary substantive regulatory interpretations, N&C rulemaking is not the only
road to Chevron deference
b. interpretation of the SSA’s rulings and official manuals b/c:
i. interstitial nature of legal question
ii. importance of the question to administration of the statute
iii. complexity of the administration
iv. careful consideration that the agency gave it over years
c. Udall v. Tallman (1965): “when the construction of an administrative regualtion rather
than a statute is in issue, deference is even more clearly in order.”
d. TJ University v. Shalala (1994): “the agency’s interpretation must be given controlling
weight unless plainly erroneous or inconsistent w/ regulation”
Judicial Review: Due Process
I.
II.
Goldberg
a. Goldberg’s due process “triggers”:
i. The benefits affected are a statutory entitlement. Nature of the right/property
ii. The action adjudicates an “important right.”
iii. The action will result in a “grievous loss.”
b. Interests that are balanced: revised by Matthews below
i. The grievousness of the loss wrongfully terminated recipients would suffer
ii. The government’s interest in not wrongfully terminating recipients
iii. The government’s interest in not providing pre-termination evidentiary hearings
in order to conserve fiscal and administrative resources
Matthews v. Eldridge
a. Variables for what process was due
i. Private interest affected by government action
1. Degree and length of deprivation relevant
ii. Risk of erroneous deprivation under procedures used and value of additional or
substitute procedures
1. Type of evidence, ability to participate meaningfully in terms of personal
characteristics and opportunity to mold argument to evidence, and
reversal rates
2. Risk is determined for “generality of cases, not the rare exceptions.”
iii. Government’s interest, including the “fiscal and administrative burdens” the
additional procedure would impose
b. Was this also the case that said the only rights recognized was property created by
another independent source of law?
Limits of Congressional Prerogative
I.
II.
III.
IV.
American Trucking Associations, Inc. v. EPA (1999)
a. EPA reasons for not setting standard at .07
i. Most certain ill-effects are transient and reversible particularly below .08 and
most serious effects are less certain below .08
ii. Clean Air Scientific Advisory Committee said it shouldn’t be below .08
iii. .07 would be closer to naturally occurring ozone levels
Whitman v. American Trucking (2001)
Bowsher v. Synar (1986)
a. “The Constitution does not contemplate an active role for Congress in the supervision of
officers charged w/ the execution of the laws it enacts.
b. The Constitution charges the President with supervision of officers and execution of the
laws, not Congress. So, if the Comptroller is controlled by Congress + the Comptroller’s
powers are executive in nature = Congress’s control of the Comptroller is
unconstitutional
c. by retaining removal power, Comptroller General may not be given executive powers
i. Compare the grounds for Comptroller removal: “inefficiency,” “neglect of duty,”
or “malfeasance”  broad removal power vs. Constitutional permission for
impeachment of executive officers: “Treason, bribery, or other high crimes and
misdemeanors.”
ii. it is clear that Congress has consistently viewed the Comptroller as an officer of
Legislative branch
d. Under the statute, Comptroller carries the ultimate authority to determine the budget
cuts made  plainly execution of the law
e. Concurrence: no need to draw bright lines in defining what is legislative function and
what is executive. The definition certainly should not be defined by what the source of
the power is. What is important is that the nature of the delegated power should not
be exercised by Congress in the first place (circumvent the bicameralism and
presentment clause, see INS v. Chadha)  cannot delegate to Comptroller
f. Dissent: Functionalist argument, lots of intermingling  there are actually lots of
internal checks w/in the removal process from judiciary and executive branches
INS v. Chadha (1983) – efforts directly to override, or to command, regulatory decisions
a. Before, an alien found deportable under relevant immigration law could obtain
permission to remain in the US only by having someone in Congress orchestrate passage
of a private bill
i. Now, deportation suspension is in the hands of the AG, subject to legislative
veto by either House of Congress
b. Technically, the immigrants doesn’t gain his full rights to stay until both houses fail to
act
c. Practically, more people are probably going to get their deportation cancelled b/c
Congress is not as focused
i. Versus the private bill system, which method is more fair?
d. functionalism: Efficiency and usefulness of a law is not the end goal of democracy
e. although there were arguments for both, the court weighed the formalist arguments
much more heavily instead of asking the functional questions of whether this ACTUALLY
threw off the balance of the checks of power among the branches
f. Both bicameral requirement and the Presentment Clauses ensures
i. legislative action only take place after full study and debate in separate settings
1. representation and
ii. Presidential involvement shields public from improvident laws
1. avoid unchecked Congressional power
2. nationally accountable official to get through local special interests
iii. Veto override
1. allows getting around President’s single political views by strong will of
the populous
g. Separation of Powers assure that each branch of government would confine itself to its
assigned responsibility
h. However, not every action taken by either House is subject to the bicameralism the
presentment requirements, depends on legislative in nature or not
i. Why is this power legislative?
i. Presumption is that each branch, when it acts, exercises the powers the
Constitution delegated to it
ii. The veto was legislative in purpose and effect because it altered the legal rights,
duties, and relations of people outside the legislative branch
iii. the veto must be legislative because all the other ways Congress could reach the
same effect involve the exercise of legislative powers
iv. The decision to veto is a legislative decision because it has the same policydetermining character as the initial decision to enact §244(c)(1)
v. The Constitution expressly provides for some kinds of one-house legislative acts
(e.g. treaty ratification), thereby precluding any one-house acts not expressly
provided for.
j. §244(c)(2) reveals that it was essentially legislative in purpose and effect
i. the House took action that had purpose and effect of altering the legal rights,
duties and relations of persons, including the AG, Executive Branch officials and
Chadha, all outside of the legislative branch
k. POWELL, concurrence: Should have been decided on Congress’ wrongful exercise of
judicial powers, not the invalidity of “one-House” actions
i. this is legislative veto to adjudicatory decisions
ii. person’s rights would be deprived w/o adjudicatory hearing
iii. this is exactly where electoral checks is not effective
l. WHITE, dissent: legislative veto is more than just “efficient, convenient, and useful.” “It
is an important if not indispensable political invention that allows the President and
Congress to resolve major constitutional and policy differences…
i. w/o legislative veto, Congress may not have delegated the power in the first
place to the executive
V.
ii. as Congress delegate more power, this is a mechanism to keep some control
iii. Also, through the veto process, there are internal and implicit procedures like
those of presentment and bicameralism
1. all three branches gets a say before the suspension of the case
m. So, is one house of Congress never able to veto?
i. Joint resolution
ii. Sometimes even, just one committee can stop a legislative process
iii. Even if read most closely and broadly to limit Congress’s veto powers  there’s
still the purse and string
Consumer Energy Council of America v. FERC (D.C. Cir., 1982), p. 204.
a. The court found that a statutory provision for a one-house legislative veto over FERC
rulemaking was unconstitutional congressional self-aggrandizement. Because the
Constitution permits limits on presidential authority over independent agencies does
not support direct congressional control over the agencies vs. Chadha
Presidential Oversight
I.
II.
III.
IV.
Lots of ways that President oversee and coordinate Councils that call on independent agencies
a. Independent agencies usually does still check with Pres. for inferior officers
i. ally in the Pres. against hostile Congress
ii. Pres. controls funding practical resources of the agencies (power of the purse
over agencies)
iii. It’s always practical
Presidential 80’s battle w/ Congress, over the EPA, about scope of Congress’s subpoena power
and Presidential privilege.
Watergate scandal made Congress concerned about leaving these prosecutor powers solely in
the hands of the president
a. SCALIA: any unethical presidential action will come full roost
Morrison v. Olson (1988)
a. statute says once a prosecution is in order  Special Division appoint IC and perform all
the function of the DoJ
i. in terms of removal: only by AG for cause, AG has to make reports to Special
Division and presenting to both Houses of Congress; OR Special Division decides
it’s enough
b. Ct. finds that the IC is “inferior”
i. can be removed by AG – lower ranked official
ii. Scope of delegation: limited scope of duties, jurisdiction, tenure
iii. Edmond v. US: restated the above qualification
1. must be supervised and directed by a principal officer (one that’s been
appointed by the president w/ the advice and consent of Senate), rather
than just rank or scope of his title
iv.  dismisses the argument that this violates appointments clause
V.
v. Just as president doesn’t have all power to appoint officers  it’s fine that it
doesn’t have all power to remove them
vi. Could have just ended the argument here and distinguished this case b/c this
was not a principle officer
c. Instead, argue much broader issue of all officers  Previous cases have said that
presidents’ power to remove may be impinged when an officer carries out quasilegislative duties; president is at-will if the officer has only purely executive duties, these
cases have been for heads of agencies only.  this case abandons this line all-together
 functional analysis, base by case, asking “whether the removal restrictions are of
such a nature that they impede the President’s ability to perform his constitutional duty”
 still ambiguity among independent agencies or not
d. What is the test:
i. Congress is not trying to aggrandize its own power at the expense of the
executive
ii. Judicial power for removal is also very constrained
iii. president’s need to control the prosecutor’s role is not so essential that the
president needs to have at-will removal power control over
iv. AG retains enough removal power
1. abide by DoJ policy
2. president, through AG does ensure competent performance of his
duties
3. AG must request for appointment
v. omitted footnote that defend this position by analogizing this situation to ind.
agency’s power to enact civil enforcement actions (but this is criminal)
e. SCALIA: mushy standard, no clear rule, judges vote ad hoc basis
i. wounds executive branch: takes away the power to judge itself (Constitution
plan); goes to the heart of executive branch by limiting president’s ability to
function b/c his top advisors will be able to give honest advice in fear of criminal
sanctions
ii. This is basically a threat of impeachment
1. AG practically has no power to choose whether to appoint IC after
Judiciary Committee report
Clinton v. City of New York (1998) – how the Constitution limits president’s power to spend and
allocate funds
a. Since the founding, Congress has always given President discretion to failure to spend
appropriated funds, not levying taxes…
b. Here’s there’s a legislative veto by the subsequent “disapproval bill” is by both houses of
Congress after the president’s cancellation
c. STEVENS: formal interpretation
i. because the language of the Act allows the president to essentially
amend/repeal legislation  have to follow bicameralism and presentment
ii. there is a crucial difference here and old discretion
VI.
VII.
1. legislating a new law vs. executing a new one
d. SCALIA/BREYER – this is really exercising executive powers
i. Congress could, in an appropriations bill decline president’s decision to collect
and spend money
ii. this is just adding another step  a technicality
e. So is there a constitutionally meaningful difference between the president being able to
strike something from the law or refusing to enforce it?
i. Judicial review? It’s really rare that judicial review would go to omission to act
anyway
ii. Future administrations, if it’s not on the books, next president doesn’t get to
enforce the law, like a tax provision
Why are these structural constitutional cases important?
a. compelling cases can be made to describe a legislative scheme
b. More than one description of power
c. Other means by the statute ends could be reached  whether the variation of means
from the text of the Constitution is ok
The courts role in these cases is to legitimize or limit administrative state
a. Lawson: Courts pretty much legitimated the administrative state
b. Ackerman: Courts legitimated the administrative state, but by first resisting it 
ratifying the change
c. implications for modern administrative state in light of the Affordable Care Act
i. Court could ratify the modern administrative state and legitimate the Act
ii. Court could strike down the act and distinguish it from previous regimes
iii. Court could strike it down or parts of it, overrule the administrative regime that
we’ve been living in since the New Deal