Admin Law

Question 1

Londoner

Answer 1

DP requires notice and an opportunity to be heard for adjudication proceedings.

Question 2

Bi-Metallic

Answer 2

When an agency rule applies to a large number of people, the DP clause does not require that each person have an opportunity to be hard regarding the rule’s adoption.

Question 3

Two Types of Admin Agencies

Answer 3

Executive and independent regulatory agencies

Question 4

Executive Agency Characteristics

Answer 4

Located within the executive branch and subject to the direction and control of the president.

Question 5

Independent Regulatory Agencies

Answer 5

(1) Exist outside of executive departments
(2) they are headed by a multi-member commission, rather than a single agency head
(3) no more than a simple majority of the commission members may come form one political party
(4) commission members have fixed, staggered terms that do not expire at the same time
(5) commission members may be removed from their positions only for cause.

Question 6

Nondelegation Doctrine

Answer 6

The constitutional limitation of Congress’s ability to delegate power. Congress may delegate two types of power to administrative agencies: legislative and adjudicative powers.

Question 7

Legislative Powers

Answer 7

Congressional delegation of legislative powers to an admin agency is constitutionally permissible if Congress gives the agency an intelligible principle to follow. This test gives agencies discretion to make rules based on their own policy judgments as long as they follow the broader policy established by Congress.

Question 8

Adjudicative Powers

Answer 8

Congress may delegate certain judicial powers to non-Article III entities. The extent to which Congress may delegate adjudicative powers is far less clear than its ability to delegate legislative powers.

Question 9

Adjudicative Powers - Public Rights Doctrine

Answer 9

A public right is one that is created by statute, or one that an individual has against the government, such as a dispute involving taxes, governmental benefits, or government licenses/contracts.

Under this doctrine, Congress could delegate the power to adjudicate public rights, but not private rights, to non-Article III judges.

Question 10

Schor Four Factor Test (Adjudicative Powers)

Answer 10

(1) the extent to which the essential attributes of judicial power are reserved to Article III courts
(2) the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts
(3) the origins and importance of the right to be adjudicated
(4) the concerns that drove Congress to depart from Article III’s requirements.

Question 11

Congressional Appointment of Officers

Answer 11

Congress has the power to create positions within admin agencies but not to fill them. The Appointments clause gives the president exclusive power to appoint principal officers. Inferior officers may be appointed by either the president, the courts, or department heads.

Question 12

Congressional Removal of Officers

Answer 12

Congress may not remove agency officials by any method other than impeachment and conviction. But, Congress may in certain circumstances restrict the president’s ability to remove executive officers (Bowsher v. Synar).

Question 13

Bowsher v. Synar

Answer 13

A federal law gave Congress the ability to remove the comptroller general, the head of the GA office. Because the comptroller was an executive official, the law was unconstitutional.

Question 14

Legislative Veto

Answer 14

The method by which Congress reserves for itself the power to overrule an agency action, typically by a vote of one or both houses. SCOTUS invalidated legislative vetoes as unconstitutional for violating the Bicameralism Clause and the Presentment Clause.

Question 15

INS v. Chadha

Answer 15

The provision of the Act allowing the House to override the decision of the AG was an unconstitutional legislative veto.

Question 16

Morrison v. Olson factors for determinig whether an officer was a principal or inferior officer

Answer 16

(1) whether the officer is subject to removal by a higher department official
(2) the scope of the officer’s duties
(3) the scope fo the officer’s jurisdiction
(4) whether the officer is limited in tenure.

Question 17

When can the president appoint principal officers?

Answer 17

Only with the advice and consent of the Senate.

Question 18

How are inferior officers appointed?

Answer 18

Does not require Senate approval. Congress may vest the right to appoint inferior officers “in the president alone, in the court of law, or in the heads of departments.”

Question 19

Inferior Officer Characteristics

Answer 19

Inferior officers are those who:
(1) are charged with the administration and enforcement of the public law, or
(2) are granted significant authority, or
(3) are granted responsibility for conducting civil litigation in the courts of the US, or
(4) hold a continuing and permanent office created by either statute or regulation.

Question 20

Employee Characteristics

Answer 20

Employees are lesser functionaires who do not exercise any significant degree of legal authority. The Appointments Clause does not govern the appointment of employees. They may be appointed in any manner. (Buckley v. Valeo).

Question 21

Agency Rulemaking (Rules versus Orders)

Answer 21

Rules are statement of general applicability and future effect - rules are like laws, except created by admin agencies rather than Congress.

Adjudication is a trial-type proceeding - adjudication produces orders, which are like judicial decisions.

Question 22

When can an agency decide to use rulemaking or adjudication?

Answer 22

As long as the agency has the statutory authority, it may use whichever method it wants. Agencies may use rulemaking to preemptively decide an issue even when a statute specifically provides for adjudication.

Question 23

Informal Rulemaking Characteristics

Answer 23

The most common form.
The agency (1) notifies the public of the proposed rules, (2) accepts comments, and (3) after consideration of the comments adopts a final rule.

Question 24

What must Notice include?

Answer 24

(1) the date, time, and nature of the public rulemaking proceedings,
(2) a reference to the legal authority under which the rule is proposed, and
(3) either the terms or substance of the proposed rule or description of the subjects and issues involved.

Question 25

What does comment require?

Answer 25

After publishing notice, agencies must give interested parties an adequate time to comment on the rule. Agencies must allow the submission of written comments, and may, but doesn’t have to, hold oral hearings. All written comments received by the agency and transcripts of oral hearings are placed in a publicly available docket which provides the factual basis for the eventually adopted rule.

Question 26

When does procedural due process apply?

Answer 26

It applies to agencies only when they adjudicate, not rule make.

Question 27

When does formal rulemaking apply?

Answer 27

Only when the enabling statute requires that a rule be made “on the record after opportunity for an agency hearing.”

Question 28

Three basic ingredients of informal rulemaking:

Answer 28

(1) public must be given notice of proposed rulemaking
(2) public must be given an opportunity to comment orally or in writing on the proposed rule
(3) agency must incorporate in the final rule a concise general statement of its basis and purpose.

Question 29

Nova Scotia (Fish Case) Rule:

Answer 29

An agency must provide a concise general statement which offers some reasoned explanation as to major issues brought up during the notice and comment process.

Question 30

Test to determine what amount, if any, of process is due:

Answer 30

(1) Adjudication or rulemaking?
(a) if rulemaking, no DP
(b) If adjudication, go on.
(2) Is it a deprivation of liberty or property?
(a) if no, no due process
(b) if yes, determine what amount of process is due (up to the judge to decide what is fair).