Admin Outline:
1. Due Process – Is process due, and if so, how much?
a. Quick facts, at minimum:
i. Get opportunity for a hearing before deprivation
ii. As well as notice and opportunity to respond.
b. Is process due – must have a liberty or property deprivation
i. Property – (Roth) legitimate claim of entitlement
1. Ex: federal/state law to entitlement – Goldberg welfare benefits;
Goss school education, Mathews social security benefits.
a. Contractual relationship against gov – Roth and Perry
professors
b. C/L claim against the gov, etc.
i. Doesn’t have to be federal/state law.
ii. Liberty – lots of definitions:
1. Roth and Paul - Stigma + change in legal status, that gov has
given you (ex: fired and stigmatized; defamation then fired)
a. Paul – stigma of being identified as known thief or active
shoplifter is not enough. Need a change in legal status.
2. Paul- Legit Claim
a. Ex: gov gives you a right to buy alcohol, a driver’s license,
etc. The gov cannot take it away w/o a hearing in advance.
b. Gives you liberty interest, than tries to take it.
3. Meyer broad language; liberty idea is really old from ol English
days. Rhetorical background argument.
4. Ingraham – free from corporal punishment, most basic form.
iii. Exam Advice:
1. W/ liberty interest, don’t ignore property interest. Explain why
there is no property interest. Explain thyself.
2. W/ liberty question, talk about all of them even if it’s
straightforward. Explain your knowledge, nothing conclusory.
a. Either way, just check off every interest.
b. Assume there’s a liberty/property interest, get to Mathews.
c. Never stop your analysis!!!
c. Mathews Inquiry: To determine how much process is due, a court must weigh:
i. Private Interest – what is the government taking from you?
1. Discuss weight on Goss – Goldberg spectrum.
ii. Procedural Safeguards – are the safeguards sufficient? Would more
process help? Good analysis of Mathews on big outline, pg. 8.
iii. Government Interest – includes function involved, amount of cash
burned, administrative burden of more process, etc.
1. Discuss a weight to each factor, with a huge spectrum from Goss
(minimal interest of school suspension and the school wants to end
the disruption; informal given and take) to Goldberg (max interest
 get food on the table; 6th amendment). Huge range of how much
process.
a. Other examples:
i. Mathews – lots of process w/ SS disability
ii. Cleveland Board – pre termination hearing gets
employee: notice of charges, employer’s
explanation of the charges, and opportunity to
respond but only in writing.
1. Not full-fledged evidentiary hearing.
2. Process is usually less than Goldberg.
3. Exam tip: Londoner/Bi-metallic don’t matter here.
2. The APA
a. Adjudication
i. Types of cases (wide range – government is giving or taking something)
1. Enforcement of law – Steadman, Antoniu (SEC securities)
2. Licensing – Seacoast, Withrow
3. Benefits – Goldberg
4. Contracting – Sameena, Darby
ii. When does the APA apply? Doesn’t apply to state interests.
1. ONLY in the federal contexts. APA applies across the board in
Federal context.
iii. First big question with adjudication:
1. Formal or Informal?
a. Triggering Language – adjudication to be determined by
“hearing on the record.” APA§554
i. Seacoast Presumption – only in 1 circuit, OR case
by case approach.
1. Seacoast – if we read “public hearing,” we
presume that the hearing must be on the
record UNLESS Congress explicitly says
otherwise. Thus public hearing = formal
adjudication.
ii. Case by Case Approach - Majority:
1. If the statutory language is ambiguous w/
respect to formality and doesn’t include
“triggering language,” there is NO
PRESUMPTION in favor of formality.
2. Case by Case - Agency generally has
discretion to use or not use procedures, then
court determines if it is reasonable.
iii. Good review of hooking language CB 139, FN 13.
iv. Exam tip: Look at the fact pattern. If it says hearing
on the record, it’s going to be formal adjudication.
2. Once it’s formal under §554, there are formal adjudication
requirements that must be met:
a. Impartial and unbiased presiding officer
b. Notice and Opportunity to participate in hearing
c. Right of parties to appear w/ counsel
d. Right to present oral and written evidence
e. Right to conduct a cross examination
f. Right to submit proposed findings, conclusions &
exceptions
g. Compilation of an exclusive record on which agency must
base its decision; i.e decision on the record.
h. Limits on ex parte communication.
iv. Key APA Adjudication Issues:
1. Who may participate or intervene? Most anyone who can show
they have an interest.
a. APA – “interested party” may intervene.
2. Evidentiary rules are very flexible:
a. Standard of proof – prep of evidence
b. H/S is admissible
i. Rationale: ALJ is an expert and should be able to
decide what evidence is good; capable of hearing
evidence over broad range and deciding what
should be kept out. Also, encourage common man
to participate/not complicated.
1. Material, relevant and non-duplicative
evidence comes on.
c. No residuum rule at federal level (whole case could be
based on hearsay, and you can lose entire case on H/S)
v. Possible Challenges to Process:
1. Combo of Functions (multiple hats) – loser argument
a. Withrow – P alleged violation of DPC when Agency had
investigatory and decision making powers.
i. H – court presumes fairness; p actually has to show
unfairness.
b. APA §554(d) – actual investigators on the ground should
not be making decisions.
i. See FN 16 and FN 20 CB 147 where combo of
functions alone violated the DPC = actual
investigators, judge did everything, etc.
2. Bias (actual, risk/probability, appearance is bad too) – winning A
a. If there is an appearance of bias, this is a due process
concern.
b. If a disinterested observer may conclude that the Agency
has in some measure judged the facts in advance of
hearing, there should be a disqualification.
c. Attack for appearance of bias.
3. Ex parte contacts – this is a winner; decision makers cannot have
ex parte contacts DURING a case w/ the parties. Big No No.
a. Rule: Contact cannot occur during the pendency of a case
AND substantially prejudice the opposing party.
b. Purpose of rule: preventative measure to ensure that admin
decisions are not based on improper grounds and based
solely on the record.
c. No ban on ex parte’s with informal adjudications. Policy of
allowing communications between the agency and
regulated parties.
4. Holding Gov Accountable:
a. Estoppel – loser
i. Rationale – enforce procedure, encourager gov to
provide informal advice, avoid judicial overload.
ii. Rare situations where estoppel may apply:
affirmative misconduct, K or advice from high
ranking official.
b. Document disclosure/open meetings:
i. FOIA – guarantees the right of citizens to know
how their government works, absent privileged
material (e.g. nat’l security, personnel files, etc)
1. FOI request must:
a. Reasonably describe the records,
b. Follow rules,
c. Then hopefully, absent the
exceptions, Agency gives you the
documents.
b. Rulemaking
i. Roadmap of rulemaking:
1. Types include:
a. Informal (notice and comment)
b. Formal (very rare, don’t worry about it)
c. Hybrid = Informal + other stuff
ii. Quick Facts
1. National Petro Refiners Court preferred rulemaking over
adjudication because: efficiency (just one rule), Uniformity,
Predictability, Clarity, openness, reviewability.
a. FTC could enact octane rules, even when not expressly
given, because rule making is good policy and the statue
doesn’t prohibit it.
1. General Ban on retroactive rules: An agency cannot enact a rule
that applies retroactively unless: given express authority by
Congress, or really really good reason for doing so.
iii. Big question: Formal v. informal
1. Triggering language – hearing on record
a. FL East Coast – unlike formal adjudication context (case
by case approach), the Court will read the statute to lead to
more informal rulemaking than formal rulemaking.
i. Magic Words test – hearing on the record.
1. Stature must contain “on the record” for
formal rulemaking trigger.
ii. Formal rulemaking is really cumbersome, ok to go
to informal which also has lots of process.
2. Formal Rulemaking consists of: Hearing  create record 
Agency decision based solely on the record.
3. If it is formal, the hearing rules are basically the same as for formal
adjudication (APA§§556 and 557)
a. Formal rulemaking isn’t very important, won’t be on exam.
b. Just doesn’t happen today.
iv. Hybrid – no triggering language but Informal rulemaking AND a hearing
v. Informal Rulemaking = Notice and Comment
1. Meat and bones, most of the action, mostly important
2. *Note - No right to a hearing in Notice and Comment Rulemaking
(only get hearing when with triggering language of APA).
3. Phases of informal Rulemaking:
a. Prior to promulgation:
i. Notice (chocolate manufacturers) &
1. Notice tells parties where the proceedings,
other general facts.
Informal
2. Adequate Notice:
Rulemaking:
a. Inquiry: have commentators had a
Notice &
fair opportunity to present their
Comment; then
views on the contents of the final
Concise general
rule.
statement upon
b. Adequate Notice TEST:
promulgation.
i. Changes in the original rule
must be in character with
the original scheme of the
rule, and
ii. New rule is a “logical
outgrowth” of the notice and
comments given.
3. Ultimately the Agency cannot materially
alter the issues involved or substantially
depart from the proposed rule. A big change
must relate to comments received.
a. After adverse comments, Agency
cannot go ahead w/ major changes.
ii. Comment
b. Upon promulgation:
i. Concise general statement
1. TEST - Should see major issues of policy
and why the agency reacted to these issues.
2. Note: exclusivity of the record; court only
reviews evidence in the record. You cannot
introduce new evidence during the tiral. Get
everything on the record.
ii. Must respond to major issues raised!!!
1. If it fails to, maybe a re-do.
4. Limits on Judicial Review of Agency Procedure (VT Yankee)
a. Once an agency has complied with the requirements of the
APA, the Courts may not impose higher levels of process.
The agencies may add more process. For ex, once an
agency decides to do a hearing, court cannot require on the
record.
b. Agency must meet APA requirements, then that’s it. Courts
then have to stay out!!
c. Basic tenet – agencies should be free to fashion their own
rules of procedure.
5. Exceptions to Informal Rulemaking Requirements:
a. General Statements of Policy – merely provides guidance
to agency official in exercising their discretionary power,
while preserving their power to make individual
determination.
i. How the agency is going to enforce its own law.
ii. Two party test for GSP; the provision must:
1. Operate only prospectively, and
2. Must not establish a binding norm or be a
final determination.
iii. When is a GSP not a GSP – when it’s BINDING!!!
Simply because agency action has a substantial
impact on the rights of a party does not mean it is
subject to notice and comment.
b. Interpretative Rules – rules issued by an agency to advise
the public of the agency’s construction of the statutes and
Interp Rule:
rules it administers.
Addresses ambiguity
and tells the public
i. Not making law, purely legal determination of what
how the agency
something means.
construes a statute.
ii. Agency is trying to fill out a gap, give a binding
interpretation. Clarification of an ambiguity.
c. Good Cause – emergency and agency must do it, ex: case
in Hawaii where helicopters were crashing, FAA was
allowed to impose emergency rules.
i. Very rare.
d. **Note:
i. GSPs – only agency employees are bound (not
agency, courts, etc.)
ii. Interpretative rules apply to more entities (Agency,
agency employees and arguably courts)
iii. Finally: generally agencies must have notice and
comment when making policy.
6. But must an agency make rules to set/change policy? NO (Chenery
and Bell) – Agencies do not have to do rulemaking to set policy.
They can do that through the adjudications.
a. Agency has discretion to decide whether to proceed by
rulemaking or adjudication.
i. Rationale: Congress intended Agencies to develop
expert decisions and we should trust their discretion
on the RM/Adj issue.
ii. To perform their function, Agencies must be able to
act.
b. Can make policy through adjudication.
7. Avoiding Adjudication through Rulemaking OK – this is allowed
if not prohibited by the statute, and the rule is not arbitrary and
capricious.
a. Under Heckler v. Campbell, the statutes expressly entrusted
the Admin with the power (to classify SS disability), so
review is limited to whether the regs promulgated exceeded
the statute’s authority and if they are A/C.
8. An agency must obey its own rules (Sameena)
a. Agency must follow its own regulations b/c, “failure to do
so tends to cause unjust discrimination and deny
adequate notice and consequently may result in a violation
of an individual’s constitutional right to due process.”
3. Summary:
a. Chenery II and Bell: how much an agency can do w/o rulemaking.
b. Campbell: how much an agency can do w/o rulemaking
c. Agencies can be flexible.
d. Ways to challenge rulemaking:
i. Directly (After its made) - National Petro, VT Yankee
ii. Collateral:
1. In enforcement action (Nova Scotia)
2. In appeal from agency hearing (Campbell).
e. Judicial Review (3 areas – review of fact, law and discretion)
i. Review of fact
1. Quick summary:
a. Substantial evidence review – occurs when reviewing
factual decision in formal rulemaking & formal
adjudication
i. More than a mere scintilla of evidence
ii. Could a reasonable decisionmaker have reached the
decision the agency reached?
b. Arbitrary and Capricious – informal RM and A
i. Std – just like substantial evidence, reasonable
person could reach this agency decision.
2. Scope of Review of facts – defined in Universal Cemera
a. Judicial Review of findings of fact is deferential:
i. Formal  court looks for substantial evidence
based on whole record.
ii. Relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
1. Also Agency’s get the deference, but
reviewing court must account for:
a. Hearing officer’s decision based on
witness credibility, and
b. Agency expertise/policy judgment.
i. Agency usually wins with
factual determination.
iii. Informal  court looks to see whether the factual
finding is arbitrary and capricious (i.e., could a
reasonable person have found what the court found;
defined by the APA)
b. Deference on factual findings is to agency, not to the
hearing officer/examiner/ALJ
c. When agency overrules hearing officers findings,
reviewing court should take into account whether:
i. Hearing officer’s findings were based on credibility
of witnesses
ii. Agency’s conclusion was based at least in part on
agency expertise or policy judgment
ii. Review of law – Skidmore, Chevron, Mead, talk America and Brand X
1. Basic scenario: there’s a statute, Agency has interpreted its own
statute.
a. I – should the agency defer to the agency’s interpretation?
b. Chevron Steps:
i. Was Congress clear in its interpretation?
1. If clear, no deference. Congress’ clear view
holds the day!! If no, go to #2 – is it
reasonable, then they get deference.
c. Mead – did Congress really want us to defer to the Agency
(does Chevron apply)? To figure this out, did Congress
give agency the :
i. (1) Power to make rules w/ the force of law, and
ii. (2) Did the Agency use that rulemaking power in
this particular case?
1. If either informal rulemaking or formal
adjudication, this suggests Congress gave
the Agency the power.
2. It depends on the formality.
iii. Under Mead, can the Agency make rules under the
statute and did they use that rule.
iv. Say the Agency doesn’t use formality, under Mead
the Agency gets no deference. It must use it’s
formal adjudication or informal rulemaking.
v. Another trick: case where agency uses 1 not 2, or 2
not 1 (had the power but did no rulemaking), go
back to Skidmore deference.
1. Does the Agency’s interpretation persuade
us that they properly interpreted the statute?
d. Brand X (another wrinkle): ex – say under Chevron the
EPA doesn’t use rule w/ force of law, no rulemaking, tries
to enforce but is shot down in Court.
i. Under Brand X, EPA can go back to use rulemaking
and get’s a do over.
ii. EPA can use it’s authority, create a rule, then the
Agency overrules the lower court’s interpretation.
It’s interpretation holds the day.
iii. Rare case where Agency has the power, but
doesn’t use it. It can go back and get a re-do, thus
overruling the lower courts interpretation. Unless,
statute is clear. If it’s crystal clear, Congress wins!
1. Remains to be seen whether SCOTUS can
be overruled, right now just the lower court.
2. Scope of Review of law continued…
a. In state court, courts give no deference to agencies on
statutory construction and interpretation.
b. Skidmore Deference – Agency’s view is not binding but
given some deference (here only an amicus brief, not
rulemaking). Agency decisions constitute a body of
experience and informed judgment to which courts should
look to for guidance – the weight of the Agency’s judgment
will depend on:
i. Thoroughness
ii. Validity of its reasoning,
iii. It’s consistency w/ earlier pronouncements,
iv. Other persuasive factors.
c. Chevron – how much deference we give to an Agency’s
interpretation (rulemaking) of its own rules or relevant
statutes – Two part test for Court deference to Agency’s
statutory construction:
i. Step 1: Has Congress directly spoken to the precise
question at issue? Ct gives effect to Congress’
unambiguous effect
1. Yes – agency must give effect to Congress’
unambiguous intent.
2. No – step 2
ii. Step 2 – if the statute is ambiguous, is the Agency’s
answer a reasonable construction of the statute?
1. Yes, defer to agency and allow the agency’s
regulation to stand.
2. No – Court may overturn or substitute its
own construction.
iii. MCI applied Chevron – “Modify” expresses
Congress’ unambiguous intent; doesn’t allow
Agency to exercise such discretion.
d. Mead – asks, should Chevron apply? Yes if,
i. (1) Congress has delegated agency power to make
rules with force of law, AND
1. Delegation depends on formality of
rulemaking: formal A, formal RM,
informal RM get deference (see Gonzo for
non-formal factors)
2. No deference w/ informal A.
ii. (2) Agency is exercising this authority in this case.
iii. Even if no Chevron deference, may still get
Skidmore deference.
e. Brand X – Agency can trump judicial interpretation of an
ambiguous statute.
i. How this plays out: agency has authority to make
rules with the power of law, BUT the agency did
not use that authority and it gets shot down in the
lower courts.
ii. Agency can come back and use its authority after
the lower court has overturned its original
construction.
f. Talk America – Agency interpretation of its own
regulations is hugely deferential (given Auer deference,
which is plainly erroneous).
g. Gonzalez v. Oregon – different ways to show force of law.
i. Gonzo Holding – formal authority is NOT exclusive
way to prove Agency had power to make rules with
force of law. Gonzo illustrates that the Court will look to
other indications (non-formal) that Congress granted
Agency such authority.
ii. Gonzo says that there are 2 ways agencies have
authority to make rules with force of law:
1. General Rule Making authority
2. Authority to make rules in particular fields.

CHEVRON FINAL REVIEW
 Chevron/Mead/Gonzeles Decision Tree
o Is the statute clear? (Chevron Step 1)
 Yes  No deference
 No  Go to next
o
Did
Congress expressly give the agency interpretive
MEMORIZE THIS!!!!!!!!!
authority? (E.g., formal rulemaking, informal rulemaking,
formal adjudication)
 Yes, then ask if the interpretation is reasonable (Chevron
Step 2)
 Reasonable  Deference
 Unreasonable  No deference
o Per Mead and Gonzales, (1) did Congress give the agency
authority to make rules with force of law generally or in the
particular substantive field covered by the agency’s rule
(Gonzo court) and (2) did the agency use that authority?
 Yes to both  Ask if the interpretation is reasonable
(Chevron Step 2)
 Reasonable  Deference
 Unreasonable  No deference (remand)
 No to either  Skidmore deference
 Yes to (1) and no to (2)  possible Brand X Internet
overrule by agency (of ambiguous statute)
iii. Review of Discretion – Overton Park, Seat Belt Case
1. Not really interpreting the statute, did they use their discretion?
a. Under the APA, the ONLY standard of review we can
apply to a discretionary decision is A/C review.
2. MVMA Court defined the standard of review of abuse of
discretion: Based on the whole record, is it A/C?
TEST WHEN MAKING A/C Review (An agency’s ruling would be “arbitrary and
capricious”):
1.
Did the Agency consider factors that Congress did NOT
want to consider,
2.
Did the Agency fail to consider an important aspect of the
Test for A/C review
problem,
3.
Did the Agency present an explanation that is inconsistent
with the record, or
4.
Is the decision given an unreasonable explanation?
3. Basically, engage in reasoned decision-making. “Must be a
rational connection between the facts found and the choice made.”
4. Overton Park – Admin must certify 1-40 can go through the park
using informal adjudication; purely an exercise in discretion
because there is no mandatory process. Can SCOTUS review? Y
a. There only time there is NO review of Agency discretion is
where there is “no law to apply.”
b. Ct remands and once they get a reasoned decision, review
the discretion under A/C standard.
Exam Tips:
Substantive Review/Substantive Challenges (agency made the wrong decision under 3 areas)
Exam tips: are the factual determinations made by the Agency based on the record.
Did they interpret the law? Apply Chevron tree.
If there’s a review of discretion, apply the test. Even if not relevant, just talk about everything.
Attack the fact pattern!!!!
f. Judicial Review – threshold issues
i. Reviewability – Johnson, Bowen, Webster
1. Just address it on test, probably get past reviewability.
a. Congress prohibited review of certain agency decisions b/c
of consistency (let the experts do it) and the volume of
decisions.
i. These concerns do not apply to Constitutional
challenges.
b. Presumption of Judicial Review; overcome by “clear and
convincing evidence.” Congress can preclude review of
regs directly or by Congressional silence (expression unius)
and inferences  Not a clear stmt rule. C & C can be met
in a variety of ways – not a magic words test.
c. Webster v. Doe – the language of the statute strongly
suggest that Congress intended to commit the action
entirely to agency discretion, thus there is “no law to
apply” (where statute is so clear that a court would have no
standard to judge the agency’s discretion).
i. Nothing for the judiciary to review.
ii. Note: APA precludes review of agency decisions
where Congress has expressly committed the action
to agency discretion.
iii. But the Court will hear the Constitutional claim b/c
the NSA is silent on this issue
iv. Courts are very willing to hear Constitutional
challenges. Doesn’t challenge the cult of
expertise/overburden of courts problems.
ii. Standing
1. Art III – Lujan, Atkins, Bennet
a. Art III cases and controversies require at the bare minimum
i. Injury in fact:
1. Concrete and particular; &
Art III Standing
2. Actual or imminent, not conjectural or
hypothetical
ii. Causality – claimant’s injury can be traced to
Agency action.
iii. Redressability – ability of court to provide relief.
Must be “likely” and not “speculative.”
b. s
2. Prudential/Zone of Interests – Chicago Junction, Bama Power,
Data Processing, Air Courier, NCUA
a. Zone of interests - Look at statute. Can the P make a
straight-faced argument that they are arguably in the
statute? Talk about the statute and why this plaintiff may or
may not have an argument.
i. C/L generally competitors.
b. Old law: Chicago Junction (gave competitors a right to be
free of monopolies), Bama Power (no legal right), Sanders
Brothers (D had standing b/c they were applying for a
license which was protected under FCC)
i. Must have a protected legal interest in addition to
Art II standing. This protected legal right comes
from Congress.
c. Data Processing – “Is the interest to be protected by the
complainant arguably within the zone of interests to be
protected or regulated by the statute?”
i. Applied (Straight faced argument – was statute
intended to protect the challenger, regardless of
your injury):
1. Postal were not focus of PES, which was
concerned with serving the whole country,
creating reveunue, etc.
2. Data processers were arguably within that
statute.
iii. Finality – SoCal (consummation of agency process, binding legal effect
on the parties); this isn’t about pre-enforcement, they are enforcing it.
1. Finality Test:
a. Decision was NOT definitive, AND
b. Decision had no legal force (that is, D’s rights aren’t
affected)
i. Mere litigation costs don’t count.
2. Other way to put it:
a. Consummation of Agency Action, AND
b. Rights have been affected (more than mere litigation)
3. Finality applied in SoCal.
a. FTC issuance of complaint was not “final agency action.”
Agency complaint is not a definitive statement or position.
iv. Ripeness  Pre-enforcement Review (Abbott Labs and Toilet Goods) –
hit EVERY FACTOR even if one is probably not met. It gives you points.
1. Test for Ripeness:
a. Fitness of the issues for judicial decision:
i. Nature of Issue (is it purely legal? Or factual?)
ii. Finality (has agency completed process)
1. Leg agency use expertise, don’t bog down
the system.
b. Hardship to the parties of w/o court consideration
2. Ripeness Applied:
a. Abbott – purely legal (proper construction of statute), final
agency action under APA (notice and comment), huge
impact on Industry (pharma is fucked and has to make huge
changes)
b. Toilet Goods – more legal, more facts would help,
Cosmetics don’t have to change a thing.
v. Exhaustion
i. Balancing test is out, presumption that exhaustion is NOT
mandatory unless the statute or Agency rules expressly mandate
review.
ii. Darby Summary. You must exhaust when:
a. Congress requires exhaustion, OR
b. If the Agency, by Rule:
i. Requires exhaustion, AND
ii. States that the challenged Agency action is
inoperative until all administrative remedies are
exhausted (get ur shit til it’s over)
2. Old law applies at state law – exhaust agency law
3. In federal, under Darby, a final agency decision can usually get
reviewed unless statute or rule + keep your shit.
4. Constitutional Issues
a. Art III issues
i. Look at p.56 of outline:
1. Law - Art III requires Art III courts to review legal questions de
novo.
2. Fact –
a. Public Rights – may vest in Art I courts
b. Private Rights – vest if Adjunct
i. Northern Pipeline says that Art III doesn’t give
jurisdiction to non-Congressionally created rights.
1. Ex: C/L claims in bankruptcy court.
ii. If Congressionally created (like in Crowell, derived
from federal regulatory scheme), vesting is fine.
ii. When is an Art. I court not taking on an “essential attribute” of Art III
court power:
1. Narrow, specialized findings of fact
2. Statutorily channeled fact finding
3. Limited relief
4. Court may set aside agency ruling
5. Non-final, non-binding, unenforceable judgments.
b. Art III Bottom Line after Stern:
i. Types of cases that MUST go to Art III court:
1. “Court with broad substantive juries, on C/L regime that doesn’t
derive from Congressional delegation.”
ii. Art I tribunal that’s fine:
1. Courts martial
2. Territorial Courts
3. Public Rights (these are now broadly defined --- [Person v Person;
Person v Gov]
a. Definition: integrally related federal government action (ex:
Schor, federal securities brokers) is SO tied to federal
action that it can go to Art I court.
4. Possibly adjunct of court of private rights (Crowell), not clear
a. Law is still evolving here.
iii. What was the problem in Northern Pipeline and Stern (bankruptcy
courts):
1. Purely private rights claim AND court like tribunal (thus not
involved with federal scheme and it’s a C/L right)
c. Non-delegation doctrine: it’s a loser, don’t argue it!!!!! Only 2 have ever won.
i. A.L.A. Schecter Poultry v. United States 1935
1. Quick facts:
a. NIRA gave FDR extremely broad and sweeping authority
to fix the economy.
b. Problem: standard less delegation of authority to FDR
i. Only Congress makes laws.
ii. When they do delegate power, Congress must
articulate an “intelligible principle.”
1. If Congress has not done its essential
obligation of setting the standard, Agency
power is unfettered.
ii. Functions of Non-delegation:
1. Congress sets policy, then
2. Agency gets intelligible principle, then
a. Ex: OSHA knows if cost or health matters more in benzene
ruling this is Congress’ job.
3. Courts get standard of review
a. If Congress does their job, the Court will know how to
review Congressional policy.
d. Legislative Veto – dead under Chadha
i. One house veto over AG’s finding that D’s deportation should be stayed.
1. Not constitutional, this is a legislative act and must follow the
Constitutional requirements.
2. Legislative actions must meet Bicameralism (pass both houses)
and Presentment.
e. Executive Power to Appoint and Remove – ignore this shit
i. Won’t be on EXAM!!!!!!