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JUDICIAL OVERSIGHT a. Reviewability?
APA SS 701(a): Two (relatively narrow) exceptions to reviewability: o Statute precludes review. o Committed to agency discretion by law ("no law to apply." See Overton Park for standard) Agency non-enforcement is presumptively unreviewable. o See Heckler v. Chaney. o Judiciary lacks expertise re: spending/resources/timing o Non-enforcement means no coercive interference in rights o Akin to executive's prosecutorial discretion b. Review of Questions of Law i. Chevron Step 0 - Did Congress give the agency lawmaking authority?
Skidmore: Weaker form of deference owed to the agency. We will defer to the agency's interpretation of law based on:
? Other persuasive factors. U.S. v. Mead Corp.: Did Congress intend such actions to carry the force of law? If so, Chevron applies. If not, Skidmore applies instead. For Chevron:
? Formal procedures;
? Due consideration;
? Fairness and deliberation. Against Chevron:
? Large volume of decisions;
? Made by low-level employees;
? No explanation offered;
? Not intended to have precedential effect. Barnhart v. Walton: Rather than answer the formalist question whether the action is meant to carry force of law, better to assess it based on an ad hoc analysis to determine if Chevron applies:
? Interstitial nature of the question;
? Expertise of the agency;
? Importance of the question to carrying out the statute;
? Careful consideration of the decision;
? Duration of the policy. ii. Chevron Step 1 - Did Congress speak to this issue in particular?
1. "Major Questions" Exception MCI: ("Modify.") Congress does not hide elephants in mouse holes. Even though the agency's interpretation may be supported by the language of the statute, we will expect that Congress will give a strong signal if it intends to give the agency very broad discretion. FDA v. Brown & Williamson: (Tobacco ban.) "Major questions exception" to Chevron. Even though a reading of the statute may be supported by the language of the statute, we will not presume that Congress intended to delegate a huge decision of policy to the agency in a few lines of statutory text.
2. Constitutional Avoidance
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