Administrative State

Question 1

Informal Rulemaking

Answer 1

Agency thinks it has power to create a law, and can do so without a hearing. Agency gives notice of public rulemaking, goes through notice and comments, publishes their final rule in the federal registry creating a new rule

Question 2

Guidance Doc

Answer 2

A statement on how someone should interpret the law from an agency

Question 3

Adjudication suing reporting agencies

Answer 3

An agency sues someone for violating a “Guidance” (attempted assertion of a rule), to get judgment from courts to say it is law now

Question 4

Arbitrary and capricious

Answer 4

Actions or decisions made without a reasonable basis, adequate consideration of relevant facts, or adherence to established procedures

Question 5

Arbitrary and capricious (Hard Lock) analysis

Answer 5

Why agency did it, address comments from notice and comment, what evidence did agency have.

If no, move onto major question
If yes, analysis ends and rule is thrown out (unlikely on exam)

Jake from State Farm

Question 6

If major question?

Answer 6

Court rethinks rule entirely (almost never major)

If no, go to MEAD/Chevron 0

Question 7

MEAD/Chevron 0

Answer 7

Does agency have force of law?
- Legal validity to create/enforce rules

Yes, go to Chevron 1
No, go to skidmore

Question 8

Chevron 1

Answer 8

Is there ambiguity?
-Most likely yes, onto chevron 2

If no, why the fuck would this be the question lmfao

Question 9

Chevron 2

Answer 9

Is there a gap in the law left by Congress they intended the agency to fill?

If yes, court respects rule
If no, court rejects rule BUT CANNOT CHANGE (no deference)

Question 10

Skidmore

Answer 10

Under Skidmore, court will look at degree of care, agency’s consistency, formality, relative expertise, and overall persuasiveness of their position

• More subjective and persuasive than Chevron
• Courts CAN change rule under Skidmore