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Administrative Law Outline Short Outline

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Administrative Law
Fall 2019
Short Outline Table of Contents
Agencies and Their Functions
Theories of Agency Behavior

4 4 4

The Constitution and the Administrative State
Separation of Powers
Agencies and Article I
Agencies and Article II
Appointment of Agency Officials
Removal of Agency Officials
The Unitary Executive

5 5 6 9 9 16 20

Statutory Constraints on Agency Procedure
Introduction: The Administrative Procedure Act
Formal Rulemaking (APA 556)
Formal Adjudication
Informal Rulemaking
Hybrid Rulemaking
The Notice of Proposed Rulemaking (APA 553)
Implementation of APA sec 553: The Statement of Basis and Purpose
Exemptions from Rulemaking Procedures
Procedural Rules:
Interpretative Rules and Policy Statements
Good Cause
Informal Adjudication
The Choice between Rulemaking and Adjudication

21 21 21 23 24 24 28 31 32 33 34 35 37 39 42

Scope of Review of Agency Action
Review of Findings of Fact in Formal Proceedings
Review of Findings of Fact in Informal Proceedings
Review of Agency Legal Conclusions
Theory and History
Theory and Current Practice: Chevron
Agency Interpretations of Regulations: Seminole Rock/Auer
Chevron Step Zero: When Does Chevron Apply?
Chevron Step One: How Clear is Clear?
Chevron Step Two: How Reasonable is Reasonable
How Far Does this Go?
Review of Agency Discretion and Policymaking

43 43 45 46 46 48 50 55 60 63 65 66

2 The Great Convergence: Substantive Review and Procedural Adequacy
Hard Look Review in Practice: Variations on a Theme
Agency Inaction
Enforcement Discretion (Decisions Not to Enforce)
Discretion to Regulate (Decisions Not to Rulemake)

3 72 74 76 76 78 Introduction

I. Agencies and Their Functions
A. Agency Functions: The Distinction between Rulemaking and

1. Rulemaking a) Looks like legislature passing a law b) Results in rule/regulation that looks like a statute c) Level of generality: very general d) Future-looking

2. Adjudication a) Looks like court deciding a case b) Results in an order that looks like court judgment c) Level of generality: specific d) Past-looking

3. How do you draw the line between the two? Hard to draw a crisp line

II. Theories of Agency Behavior
A. A lot of admin law can only be understood as a response to changing theories of agency behavior
B. Timeline:

1. Madison--Landis--Eastman--ND--Landis--Bernstein--Noll--Wilson
C. Madison: bad man view of government (humanity is bad, needs to be governed, but no one to govern men but other men who are also bad)so we need controls on government
D. Eastman: Good guy government (don't worry about those who govern you because they're all motivated by good things and are nonpartisan!).
E. Landis: Government brings in experts who do good things into agencies (so we don't want to constrain agencies because there are big problems to be solved and we need to let agencies solve them)

1. Best administrators didn't read the statutes but just dealt with the problems of the industry. We need to let agencies do what they need to.
F. Berstein: Agencies are crusaders regulating their industry at first, but then as time goes on, when the people in the agency are working so close with the industry, they become "captured" and take on the persona of those they're regulating. At that point, courts need to rein them in.
G. Noll: An agency who doesn't want to be overruled must be responsive to the industry (bc industry has resources to challenge decisions,
while the general public is not cohesive enough to actually challenge an agency decision)

4 1. So an agency wanting to minimize being overruled by legal decisions must favor interests of the regulated

2. This is magnified by how commission members are chosen
(appointments are not even noticed by public, but regulated industries are closely watching and ready to oppose)
H. Wilson: More nuanced view that is currently still in place

1. Either there's been a shift that's less pro-industry or we've been overgeneralizing that every agency is "captured"
a) Easier for public to organize

The Constitution and the Administrative

I. Separation of Powers
A. James Madison, Landis, Strauss opinions on SOP
B. 18th C.: Formalism v. Functionalism

1. Formalism: Only one formulation of gov't was put into the
Constitution- three branches with different powers and responsibilities and NO encroaching. Powers of different branches may at times be focused on the same subject, but it isn't absolute power (powers remain discrete- judiciary exercises judicial power)
a) Rigid rules: Constitution is an instruction manual and must be followed, all exercises of power fall under one branch b) Process: Look at the power and see which branch it is under. Does it fit that branch's definition?
(1) Read text of Constitution and line it up with action being challenged- if they don't match, not allowed c) Biggest issue is that then our entire admin state is unconstitutional- so it is just not practical

2. Functionalism a) Looks at the general Constitutional guidelines, then looks at the mechanism at hand and sees if it encroaches on the power of another branch.
If it does- problem
(2) If not- let it go (regardless of what Constitution says)
b) Concerned with whether an exercise of power interferes with the "core function" of another department (is one branch trying to "aggrandize itself" at the expense of another?)

5 c) Cons: no meaningful limitations on interbranch usurpation of power, doesn't appreciate corrupting effect of power, doesn't worry about power grabs outside of branches
C. Themes

1. How Madison's view is reflected in the Const a) Powers divided between three branches- but many checks and balances. Examples of them.

2. Framers had distinct view of human nature and of how to translate the best and worst of human nature into the

1. SOP is evidence of this
D. Takeaway

1. Vision that motivated Constitution (bad aspects of human nature)

2. Then there's a breach where we see a form of government that doesn't look consistent with Constitution a) People settle on view that agencies are executive (but the existence of them and the form they take doesn't really make sense in light of the Constitution)

3. Most of what we see today is an attempt to bake back in things that were supposed to be there according to Constitution but fell by the wayside

II. Agencies and Article I
A. The New Deal

1. There are only two cases that have held that there was an unconstitutional delegation to the President. So non-delegation is pretty much dead but we still think there is SOME limit out there.

2. Panama Refining Co. v. Ryan (1935)
a) Congress confers on President the choice of whether or not to prohibit transportation of petroleum b) Court says that this is legislative in nature- it is
(1) Then look to whether Congress declared a policy or set up a standard for the President to follow.
No. President was given unfettered discretion to determine the policy and to lay down the prohibition or not as he sees fit c) Court says Congress can leave up to experts certain things- but needs to give prescribed limits and the facts that must be in place for the action to apply

3. A.L.A. Schechter Poultry Corp. v. United States (1935)
a) Court said that Congress, in authorizing "codes of fair competition" did not itself establish standards (legislative function was given to the President)

6 b) Congress can't delegate legislative power to the
President to exercise an unfettered discretion to make whatever laws he thinks advisable.
c) No clear limits imposed on president here. Fair competition is not a clear standard, and you need a clear standard.
B. After the New Deal: The Modern Doctrine

1. Mistretta v. United States (1989)
a) Constitutionality of these Sentencing Guidelines was upheld
(1) Non-delegation doctrine doesn't prevent Congress from obtaining assistance of coordinate branches as long as it lays down by legislative act an intelligible principle to which the body authorized to exercise the delegated authority is directed to conform
(2) Congress' delegation was sufficiently specific and detailed to meet constitutional requirements
(3) When delegating, it's okay to delegate some level of exercising judgment
(a) Exercise of judgment is OK- only an absence of standards for the guidance of action would justify striking it down b) Dissent- Scalia
(1) Thinks there's no question of degree. The issue is that Congress is delegating power to a nonlegislative agency
(a) No acceptable delegation of legislative power
(2) Sees SOP as 3 different branches, but some policymaking inheres in execution
(a) So when Congress delegates, there will be policy decisions an agency will make (that may look like legislating), but they'll be ancillary to executive power. Here- their whole task is legislative.
(3) Nondelegation is largely non-justiciable

2. Industrial Union Dept, AFL-CIO v. American Petroleum Inst
(1980): you can interpret a statute to avoid a non-delegation challenge
C. Life after Mistretta

1. What is left?
a) Mistretta showed us nondelegation challenges won't be well-received by the court b) Seen in the following cases:


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