Cases

Question 1

Nat’l Federation of Independent Business (NFIB) v. OSHA

Answer 1

Issue(s) & Court’s Jurisdiction: OSHA had mandated that businesses with over 100 employees enforce a vaccine mandates. SCOTUS decided an appeal on a stay of the mandate.
Holding: OSHA did not have authority to issue the vaccine mandate.
Controlling Reasoning: OSHA is not a public health agency and the virus occurs outside the workplace. This is the legislators job. OSHA exceeded its Congressional authority. (Formalistic reading).

Question 2

A.L.A. Schechter Poultry Corp. v. United States (1935)

Answer 2

Issue(s) & Court’s Jurisdiction: Section 3 of the NIRA authorized the President to approve and make laws concerning fair competition for trades and industries.
Holding: This is a delegation of legislative power and, thus, unconstitutional.
Controlling Reasoning: Unconstitutional b/c it violates the Hampton Standard b/c (1) delegation to private industry, (2) Overbroad: POTUS not limited/ no guidance; an adapt or add legislation and (3) strictly political actor involved in lawmaking.

Question 3

Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980) — The Benzene Case

(Unlikely)

Answer 3

Issue(s) & Court’s Jurisdiction: OSHA’s Secretary set a maximum standard of Benzene in the air without knowing safe exposure levels.
Whether the agency can impose such a standard?
Holding: No.
Controlling Reasoning: The act requires the risk from a toxic substance to be quantified sufficiently, otherwise OSHA would have sweeping legislative powers, which is unconstitutional.

Question 4

Mistretta v. United States (1989)

(Unlikely)

Answer 4

Issue(s) & Court’s Jurisdiction: The Sentencing Reform Act established a commission that directed sentencing guidelines (permissible ranges) and Mistretta argued that his sentencing under such did not apply to him because the Act was unconstitutional.
Holding: the Sentencing Commission’s rules are not unconstitutional.
Controlling Reasoning: The Act contains sufficient standards to provide an intelligible principle for the exercise of the Commission’s standard-setting.

Question 5

Whitman v. American Trucking Assns., Inc. (2001)

(Unlikely)

Answer 5

Issue(s) & Court’s Jurisdiction: The EPA regulated Ozone without considering the cost of implementation under the Clean Air act. The lower court asked the EPA to formulate its own intelligible principle.
Holding: The act does not delegate legislative power to the EPA.
Controlling Reasoning: There are set standards and the court cannot asked an agency to formulate its own limits.
Phrase “to make rules that are requisite to protect public health” enough of an intelligible standard.
Distinct from Schechter: no private actors, regulation of pollutants vs entire industry (breadth of grant), clarity of grant, political operator vs expert agency, practical concern (urgent need for legislation).

Question 6

West Virginia v. Environmental Protection Agency (2022)

Answer 6

Issue(s) & Court’s Jurisdiction: To control CO2 the EPA determined that the BSER (best system of emission reduction) was a mix of technologies and replacement of electricity from coal with electricity from renewable sources. Whether the EPA has the authority to include a requirement that facilities reduce their own production of electricity and subsidized increased generation with renewable sources.
Holding: No. This a major question and has not overcome the presumption of unconstitutionality by a clear articulation of delegated authority.
Controlling Reasoning:
- “In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” => Constitution: Separation of Powers and Vesting Clause + Interpretation
- Why do we need the MQD at all? => Self-government, accountability, delegation of power, persevere federalism and diversity.

Question 7

Immigration and Naturalization Service v. Chadha (1983)

Answer 7

Issue(s) & Court’s Jurisdiction: Congress under §244(c)(2) of NIA has the power to veto the Attorney General’s determination that Chadha should not be deported. Congress vetoed the determination, Chadha appealed and the 9th Circuit held that the legislative veto is unconstitutional.
Holding: The action of one House of Congress under §244(c)(2) violates the strictures of the Constitution.
Controlling Reasoning:
- Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of Congress/Executive.
- Presentment important because check on Congress’s power and he is the enforcer.
- Bicameralism matters because it’s a check on Congress’s power, preserves federalism, and ensures consensus.
- This violates the presentment and vesting clause. Violated b/c one-house passage = no presentation to the president.

Question 8

Robertson v. Seattle Audubon Society (1992)

Answer 8

IIssue(s) & Court’s Jurisdiction: The US Forest Service and Bureau of Land Management devised a new rule that logging could happen is a forest in which the endanger spotted owl lived, while preserving some of its habitat. Environmental groups and logging companies appealed. While the appeal was pending, Congress included a rider in their appropriation act, designating some forest areas for logging and prohibiting entirely in other. The 9th Circuit held that to be unconstitutional.
Holding: The amending of substantive law through riders is constitutional.
Controlling Reasoning:
- Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly. Test: Does it change law rather than compel an outcome under old law.
- Can re-write enabling act through appropriation riders b/c it’s later in time + much more specific (formalistic fulfillment).

Question 9

Clinton v. City of New York (1998)

(Unlikely)

Answer 9

Issue(s) & Court’s Jurisdiction: Clinton cancelled a provision that would have terminated a Medicate repayment claim and a limited tax benefit under the authority of the Line Item Veto Act.
Holding: The president does not have the authority to cancel/veto parts of a bill.
Controlling Reasoning:
- Line Item Veto is unconstitutional because it does not fulfill the formalistic requirements.
- There is no provision in the Constitution that authorizes the President to enact, amend, or repeal statutes.

Question 10

Youngstown Steel and Tube Co. v. Sawyer (1952)

Answer 10

Issue(s) & Court’s Jurisdiction: President Truman issued an EO taking charge of steel mills during the Korea war.
Holding: The EO exceeded Constitutional bounds.
Controlling Reasoning: The President was not acting with statutory license and the power to effect such a seizure was not deducible form his constitutional power to “see that the laws are faithfully executed” or as commander-in-chief of the armed force.
Jackson:
- Constitution + Approval/Mandate = Constitutional, easy test
Constitution + Silence/no mandate = Zone of Twilight, case by case assessment
- Constitution + Contrary to the will of Congress = “lowers ebb” of President’s power (Foreign Affairs & Military).

Question 11

Trump v. San Francisco:
(Unlikely)

Answer 11

Issue(s) & Court’s Jurisdiction: EO: No more money to “sanctuary cities” that refuse to report immigrations status according to federal immigration law.
Holding: Not allowed.
Controlling Reasoning: Because he was in his lowest ebb of his powers b/c Congress has spending powers and his EO was directly contradictory to will of Congress.

Question 12

The Tobacco Marketing Rule: A Case Study in “Presidential Administration”

Answer 12

Issue(s) & Court’s Jurisdiction: President Clinton announced that he was directing the FDA to take big steps to stops sales and prohibit marketing of tobacco products to children. Subsequently, after accepting public comments the FDA announced new rules regulating marketing of tobacco products to young people. Tobacco companies sued.
Holding: The FDCA did not give the FDA authority to regulate tobacco products.
Controlling Reasoning: Tobacco is not a drug and this is too big. Congress regulates that by other means.

Question 13

Buckley v. Valeo (1975)

Answer 13

Issue(s) & Court’s Jurisdiction: Congress passed the FCEA creating the FEC consisting of six voting members appointed by the President pro tempore of the Senate, by the speaker of the house.
Holding: The Appointment Clause of Art. II does not allow this.
Controlling Reasoning: The FEC has widening enforcement power. Any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must be appointed in the manner prescribed by § 2 cl. 2 of Art. II.
- Would be OK if they did not rule make/adjudicate = agency work.
- Violation of Art. II §2? YES not with AC of Senate, or Congress cannot play a role if inferior officers.

Question 14

National Labor Relations Board v. Noel Canning (2014)

Answer 14

Issue(s) & Court’s Jurisdiction: NLRB found Canning committed unfair labor practices and imposed remedial actions when three of the five seats on the board where appointees appointed by Obama during a recess of the Senate.
Holding: Intra-session breaks are recesses.
Controlling Reasoning:
1. Intra-session breaks are also recesses as understood under the Constitution. Historical practice and the need for continued working of the federal gov’t dictate so. At least 3 days have to pass + cannot be able to do ANY work in that time (not just deciding that they don’t do any work).
2. Can be vacancies hat existed before the recess.
=> Art. I, § 5, cl. 4, need to be at least 3, if not 10 days a break to count as a recess.

Question 15

Myers v. United States (1926)

Answer 15

Issue(s) & Court’s Jurisdiction: Myers was a postmaster first class who was fired by the Postmaster General. Myers sued arguing that he was fired without the consent of the Senate and, thus, his rights were violated.
Holding: The President does not have to get the consent of the Senate to remove an administrative official.
Controlling Reasoning: The president by virtue of his general grant has to supervise the officials and should have to power to remove negligent or inefficient officers. For Congress to claim that power would infringe on separation of powers.

Question 16

Humphrey’s Executor v. United States (1935)

Answer 16

Issue(s) & Court’s Jurisdiction: Humphrey was an ineffective, loud, pro-business FTC chairman was summarily fired by Pres F. Roosevelt, after Humphrey refused to resign. His estate sued for the remaining salary of the alleged unconstitutional removal.
Holding: The President cannot fire an official of the FTC.
Controlling Reasoning: It’s acceptable for Congress to intrude on the removal power by requiring cause b/c quality/nature of agency is different:
- Executive vs legislative/adjudicative agency.

Question 17

Bowsher v. Synar (1986)

Answer 17

Issue(s) & Court’s Jurisdiction: Congress passed an Act establishing GAO whose Comp Controller was was removable only by a joint resolution of Congress and the President.
Holding: The deficit-reduction functions cannot constitutionally be delegated to an officer who is “subject to Congress’s control.”
Controlling Reasoning: That he is removable by an action of Congress only means he is under their Control which violates the separation of powers. Congress cannot influence removal, only with impeachment.

Question 18

Saila Law v. Consumer Financial Protection Bureau (2020)

Answer 18

Issue(s) & Court’s Jurisdiction: Congress placed the CFPB under a single Director, appointed by the President with advice and consent of the Senate for a term of five years. CFPB does not rely on appropriation’s funding.
Holding: The structure of the CFPB leadership with a single Director violates the Constitution’s separation of powers.
Controlling Reasoning: The entire power of the executive lies with the President who should be able to remove agency heads at will. There are only two exceptions:
(1) multimember expert agencies with no substantial executive power and
(2) inferior officers with limited duties and no policy making or administrative authority.
This is also a threat to the Constitutional structure b/c it generally distributes power over multiple people and only the executive has the singular power of the President.

Question 19

Morrison v. Olson (1988)

Answer 19

Issue(s) & Court’s Jurisdiction: An appointment procedure for “independent counsel” IC to investigate and prosecute allegation of official wrong doing. IC is appointed by a Special Court after a referral from the AG and may only be terminated by herself or the AG for good cause.
Holding: The IC provisions of the Act are not unconstitutional.
Controlling Reasoning:
(1) the IC is an IO because she is subject to removal by a higher executive branch official, she can only perform certain, limited duties, she has limited jurisdiction, and she has limited tenure.
(2) This case does not involve an attempt by Congress to gain control of the removal powers. A for “good cause” restriction on IOs does not intrude on the President’s control.

Question 20

Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)

Answer 20

Issue(s) & Court’s Jurisdiction: The SEC could remove members from the Public Company Accounting Oversight Board only for willful violation of certain laws or failure to enforce such laws. According the to majority, the SEC members can only be removed at will themselves.
Holding: A restriction to remove an inferior officer, who is supervised by a principal officer whose removal is restricted is unconstitutional.
Controlling Reasoning: This structure hampers the President’s control about how laws are enforced and it diffuses accountability.

Question 21

Citizens to Preserve Overton Park v. Volpe (1971)

Answer 21

Issue(s) & Court’s Jurisdiction: The Secretary of the Department of Transportation approved a highway design to be funded by federal money. Citizens opposed the highway planned to be routed through a park. They alleged the Secretary violated the DoT Act by not conducting a formal finding.
Holding: The Secretary did not act A&C.
Controlling Reasoning: Secretary not insulated from judicial review: Exceptions §701: Statute precludes judicial review OR Action is thing the agency’s discretion
- Existence of statute protecting parkland (standard or terminology) imposes on agency’s discretion => acts are reviewable!
- Courts will fundamentally review agency action under §706(2)(A):
Data?
Explanation?
Connection?
- Court signals that agency decision ought to stand.
- 706 requires review of the WHOLE record of the agency act.
- Overton Park: Courts can engage in review of agency action stat includes a “hard look,” that is, a substantial inquiry, despite the fact that there is a presumption of regularity.

Question 22

Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Insurance Co. (1983)

Answer 22

Issue(s) & Court’s Jurisdiction: The Secretary rescinded a regulations that required automatic seatbelts after the industry had reported that these were still able to be disconnected and were thus too expensive for too little evidence that they would increase motor vehicle safety.
Holding: Judicial review applies to rescission and NHTSA acted A & C in revoking the rule.
Controlling Reasoning: - Rescission of rule: §706 applies to ANY agency action: whether it’s a new rule, revoked rule.
- Scope of review is narrow. Doesn’t allow the court to substitute it’s judgment with that of the agency = presumption of regularity BUT the court can require the agency to show its work:
(1) Examine the data; (2) explanation; (3) connection.
- Pretext?
- It was arbitrary => it’s weird that they rescind the rule instead of changing it or rescinding parts of it. “No adequate reasons were given for the total” recision of the airbag rule = reasons are pre textual and post-hoc rationalizations.
- Revoking seatbelts is not supported by the data; it’s not a rational conclusion/connection.

Question 23

Department of Commerce v. New York (2019)

Answer 23

Issue(s) & Court’s Jurisdiction: The Secretary of Commerce is tasked with conducting the decennial census. The Secretary announced that he decided to reinstate a question about citizenship on the 2020 decennial census questionnaire.
Holding: The Secretary’s action was A & C.
Controlling Reasoning: The evidence supported the Secretary’s decision, but the decision must be set aside because it rested on a pre textual basis. Pretext pointers:
- Explanation later
- Issues came up later (not until)
- Unstated explanation not enough.

Question 24

Federal Communications Commission v. Fox Television Station, Inc. (2009)

Answer 24

Issue(s) & Court’s Jurisdiction: FCC changed its rule regarding expletives use on TV and gave Fox News a warning saying that the violated the rule. Acknowledging that the rule has changed, however, the FCC did not impose any penalty.
Holding: The FCC did not act A & C.
Controlling Reasoning:
- Same review standard, A/C applies to change of rules b/c APA does not call for a different standard or review.
- The change was neither arbitrary nor capricious because (1) the agency acknowledged that it changed its regulation and (2) the agency’s reasons for expanding the scope were entirely rational.

Question 25

Encino Motorcars, LLC v. Navarro (2016)

Answer 25

Issue(s) & Court’s Jurisdiction: The DOL reversed a rule that service advisors are exempt from the Fair Labor Standard Act and, thus, they would be eligible for overtime pay.
Holding: The action was A &C.
Controlling Reasoning: An unexplained inconsistency in agency policy is a reason for holding an interpretation to be arbitrary and capricious change from agency practice.

Question 26

Department of Homeland Security v. Regents of the University of California (2020)

Answer 26

Issue(s) & Court’s Jurisdiction: DHS rescinded DACA based on the AG’s conclusion that it was unlawful. After a court stayed the order, Secreaty Nielsen wrote a memorandum explaining that the rescission would not be disturbed.
Holding: The rescission was A&C.
Controlling Reasoning: If court is concerned about adequacy of decision making, court can give agency choice to do one of two things:
(1) Go back and reflect more deeply on data and decision (no new explanation).
(2) New action to do something with new explanation.
- A&C b/c it did not consider the forbearance part of DACA => Court wants the agency to parse it into its elements and explain all parts.
- Data: 5th Circuit didn’t say anything about forbearance.
- Explanation: no real explanation of DACA’s illegality.
- Connection: no reasonable connection b/c data/explanation is lacking.

Question 27

Massachusetts v. Environmental Protection Agency (2007)

Answer 27

Issue(s) & Court’s Jurisdiction: Private organization petitioned the EPA to regulate CO2 emission from new vehicles. After notice and comment, the agency declined stating that the Clean Air Act did not authorize it to regulate CO2 and that it would be unwise to do so at this time.
Holding: Yes, a court can review agency inaction and the EPA’s inaction was A&C.
Controlling Reasoning:
- It’s not obvious that 706(2)(A) should apply to A inaction b/c A’s benefit from discretion regarding their resource allocation, the court should be really hesitant before plunging in with 706(2)(A).
- We need a special reason: HERE: a mandate of act and a petition system.
- Regulation vs enforcement (mostly hands off).
- Can’t compound uncertainty by not trying to find out the answer to a question (too uncertain needs proof that they tried to find answer).

Question 28

National Labor Relations Board v. Hearst Publications (1944)
(Unlikely)

Answer 28

Issue(s) & Court’s Jurisdiction: NLRB ordered Hearst to bargain with his ‘newsboys’ based on finding them to be employees under the National Labor Relations Act.
Holding: Newsboys are employees.
Controlling Reasoning:
- Court interpret the term
- Specific application of the court’s interpretation is the agency’s task
- Not answering the question who interprets.

Question 29

Skidmore v. Swift & Co. (1944)
(Unlikely)

Answer 29

Issue(s) & Court’s Jurisdiction: The DOL issued an interpretive bulletin saying that sleeping time should not count as work, but waking on-duty time should.
Holding: On-call waking time should count as work.
Controlling Reasoning: Who interprets? => Agency interpretations are not controlling on the judiciary; court may use an A’s opinions as guidance.

Question 30

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)

Answer 30

Issue(s) & Court’s Jurisdiction: The EPA established regulation to implement permit requirements that allowed a State to adopt a plant wide definition of the terms ‘stationary source.’
Holding: EPA’s decision was based on a reasonable construction of the statutory terms ‘stationary source.’
Controlling Reasoning: EPA gave several reasons and these represent a reasonable accommodation of manifestly completing interests and is entitle to deference.
If Statute is clear = do what it says.
If Statute is unclear = explicit => Agency.
If Statute is unclear = implicit => Agency has to be reasonable.
Uncertainty/implicit grant of interpretation power => Court should not substitute its interpretation for a reasonable interpretation by the agency.

Question 31

MCI Telecommunications Corp. v. American Telephone & Telegraph Co. (1999)
(Unlikely)

Answer 31

Issue(s) & Court’s Jurisdiction: Is the A’s understanding of “modify” leading to change in tariff review correct?
Holding: Yes.
Controlling Reasoning: Term is unambiguous and, thus, courts are not involved further.

Question 32

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)

Answer 32

Issue(s) & Court’s Jurisdiction: The Secretary of interior issued regulation that ‘harm’ under the Endangered Species Act could constitute a “significant habitat modification or degradation where it actually kills or injure wildlife.”
Holding: That was a valid construction of the term ‘harm.’
Controlling Reasoning:
- Statutory framework and broader context of the term to construct the term.
- Ambiguous term based on the interpretation of the statute => Reasonableness analysis follows => broad purpose protection is a reasonable interpretation.
- Congress did not unambiguously manifest its intent to adopt respondent’s view and the Secretary’s interpretation is reasonable.

Question 33

FDA v. Brown & Williams Tobacco Corp. (2000)

Answer 33

Issue(s) & Court’s Jurisdiction: The FDA ban the marketing of tobacco product to young people. Tobacco industry challenged the new regulation.
Holding: The interpretation of the Act was invalid.
Controlling Reasoning:
- In extraordinary cases, there may be reason to hesitate before deferring to an agency construction, even under an ambiguous statute and the Chevron framework.
- Major Question Doctrine: Congress is really engaged with the question and did not give an implicit delegation.
- “Common sense” tells us tobacco is not a drug or device or at least ambiguous.

Question 34

Massachusetts v. EPA (2007)–Authorization

Answer 34

Issue(s) & Court’s Jurisdiction:
Holding: EPA is authorized to regulate greenhouse gases.
Controlling Reasoning: Other than in Brown & Williamson Tobacco Corp. there is no total ban here and there was no unbroken serious of congressional enactments. There is no reason to read ambiguity into a clear statute.

Question 35

Utility Air Regulatory Group v. Environmental Protection Agency (2014)

Answer 35

Issue(s) & Court’s Jurisdiction: EPA promulgated a new rule that would have lead to wide-ranging requirements for permits regarding greenhouse gases interpreted as ‘air pollutants.’ The EPA raised the statutory threshold for the permit requirement to apply.
Holding:The EPA cannot lawfully tailor the program by adjusting the statuary threshold upward.
Controlling Reasoning:
- EPA’s interpretation is not reasonable b/c: (1) It expands their power too much => super hight increase in permits and costs (2) Conflicts with rest of statute.
- A’s interpretation does not accord with ordinary meaning of the statute…is not reasoned.

Question 36

National Cable & Telecommunications Ass’n v. Brand X Internet Servs (2005)

Answer 36

Issue(s) & Court’s Jurisdiction: The Ninth Circuit interpreted ‘cable modem-services’ before the FCC could adopt a definition. The FCC subsequently adopted a different definition than given by the Ninth Circuit.
Holding: A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference.
Controlling Reasoning: A court’s prior judicial construction of a statute trumps an agency construction if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. A contrary rule would result in a Chevron deference only be given when a court had not yet interpreted the statute and it would turn on the order of interpretations.

Question 37

United States v. Mead Corp. (2001)

Answer 37

Issue(s) & Court’s Jurisdiction: The United States Custom Services issued a ruling letter classifying day planners as diaries and, thus, increasing the tariff due on import from zero to 4%.
Holding: An interpretation deserves the Chevron deference only if it has the force of law.
Controlling Reasoning: Congress did not delegate authority to issue rulings with the force of law. The letter’s binding character stops short of third parties. It doesn’t fully possess legal character if it doesn’t follow the APA procedures to have legally binding force.

Question 38

City of Arlington v. FCC (2013)

Answer 38

Issue(s) & Court’s Jurisdiction: The States opposed the adoption of a rule arguing that the statute did not preempt local law.
Holding: A court should apply Chevron to an agency’s determination of its own jurisdiction.
Controlling Reasoning: The distinction between “jurisdiction” and “non jurisdictional” interpretations is a mirage. The questions a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.

Question 39

Auer Case:

Answer 39

Issue(s) & Court’s Jurisdiction:
Holding: The Auer deference is given when there is an ambiguous statute or the agency’s own regulation.
Controlling Reasoning: The rationale for Auer was a presumption that Congress would generally want agency to play the primary role in resolving regulatory ambiguities, that the original drafter of the rule can interpret it better, that an agency has unique expertise, and that we want uniformity.

Question 40

Kisor v. Wilkie (2019)

Answer 40

Issue(s) & Court’s Jurisdiction: Kisor, a Vietnam War veteran, sought disability benefits from the Department of Veterans Affairs (VA), first declined later reopened and the VA agreed and started paying him disability benefits from that point forward, but not in retrospect because there were no pertinent counter records.
Holding: Auer is still strictly limited:
1. Genuinely ambiguous = no single possible meaning.
2. Reasonable within the scope of ambiguity
3. Character and context of the A’s interpretation entitles it to controlling weight (deference).
Controlling Reasoning: Deference b/c
- Congress is presumed to expect the A to interpret its own rule.
- Best to ask the author.
- Interpretation of these rules is policy work and, thus, the experts should interpret: Expertise, hearings, investigations are available to A.
- Promotes uniformity.
- Gives political accountability.

Question 41

Universal Camera Corp. v. National Labor Relations Board (1951)

Answer 41

Issue(s) & Court’s Jurisdiction: Chairman was discharged for ‘misconduct’ but alleges that he was fired in retaliation for testifying for a union in front of NLRB. What is the effect of the APA on the duty of Courts of Appeals when called upon review orders of the NLRB.
Holding: Substantial Evidence = scintilla of evidence.
Controlling Reasoning: The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified.

Question 42

Biestek v. Berryhill (2019)
(Unlikely)

Answer 42

Issue(s) & Court’s Jurisdiction: A refused to disclose data of their expert witness.
Holding: Refusal to provide data of an expert upon the applicant’s request does not categorically preclude her testimony from counting as “substantial evidence.”
Controlling Reasoning: The threshold of evidentiary sufficiency is not high. It is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

Question 43

Lujan v. Defenders of Wildlife (1992)

Answer 43

Issue(s) & Court’s Jurisdiction: Secretary of the Interior promulgated a regulation that any agency action by the agency that could impact endangered species does not apply to actions taken outside the territory of the United States. A group of environmentalists sued.
Holding: The respondents do not have standing to seek judicial review of the agency rule.
Controlling Reasoning: Art. III § 2 cl. 1 of the Constitution requires there to be standing, meaning: Test:
(1) Injury in fact: particular, actual, imminent
(2) Causal connection
(3) Redressability: change the outcome

Question 44

Massachusetts v. EPA (2007)–Standing

Answer 44

Issue(s) & Court’s Jurisdiction: Whether petitioners, including a state, had standing.
Holding: Yes.
Controlling Reasoning: Real issue: how rigorously do we apply the standing requirements to States?
- More permissive: “Special status” in contt of global warming (maybe other issues) “in all the earth and the air” => softens particularity and actuality of the injury requirement.
- B/c States agree to Union, we have to respect their quasi-sovereignty.
- Core purpose to standing: plaintiffs have a personal stake in the outcome, ensuring a concrete purpose driving the adversarial nature of the process.

Question 45

United States v. Allegheny-Ludlum Steel Corp. (1972)
(Unlikely)

Answer 45

Issue(s) & Court’s Jurisdiction: The ICC promulgated a rule, which was attacked by railroads and shippers and procedural grounds.
Holding: The Commission does not have to follow formal procedure.
Controlling Reasoning: A good deal of significance lies in the fact that some statutes do expressly require determination on the record. After hearing, is insufficient to invoke the formal proceedings.

Question 46

United States v. Florida East Coast Ry. Co. (1973)
(Unlikely)

Answer 46

Issue(s) & Court’s Jurisdiction: The railroads argued that the term ‘after hearing’ mandated at least somewhat more formal proceeds that those specified in APA § 553.
Holding: The language ‘after hearing’ does not require more formal procedure than APA § 553.
Controlling Reasoning: We are convinced that the term ‘hearing’ as used does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency’s decision maker.

Question 47

Chocolate Manufacturers Assn. v. Block (1985)

Answer 47

Issue(s) & Court’s Jurisdiction: In the notice for comments, no substitution issue regarding flavored milk for normal milk was discussed.
Holding: The FDA erred in deleting the acceptable substitution of milk under the notice they gave.
Controlling Reasoning: The rules had to be in character with the original notice and has to be a ‘logical outgrowth’ of it. The notice affirmatively included the flavored milk and final rule explicitly excluded it. This is a reliance issue.

Question 48

Long Island Care at Home, Ltd. v. Coke (2007)

Answer 48

Issue(s) & Court’s Jurisdiction: After receiving comments, an agency decided to include all companionship workers (not just a specified group) from the Fair Labor Standards Acts.
Holding: The rule was not procedurally defective.
Controlling Reasoning: The object is one of fair notice. The proposed rule meant the Department was considering the matter, without having to follow the exact rule they proposed.

Question 49

United States v. Nova Scotia Food Prods. Corp. (1977)

Answer 49

Issue(s) & Court’s Jurisdiction: The FDA promulgated a rule regarding smoking different type of fish that applied the same requirements to all fish, without giving an explanation as to why.
Holding: The FDA failed to give an adequate concise general statement of basis and purpose.
Controlling Reasoning: The concise general statement of basis and purpose mandated by 553 will enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did.

Question 50

Home Box Office v. FCC (1977)

Answer 50

Issue(s) & Court’s Jurisdiction: The FCC promulgated rules that restricted subscription television and pay cable programming. There were some issue were FCC employees met extensively with rule stakeholders.
Holding: The procedure of the APA was violated by extended off record deliberations between the agency and rule stakeholders.
Controlling Reasoning:
- 553 does not require ex parte communications in record (BUT 556/7 do!)
- Important b/c is affects the quality of judicial review down the road (integrity of hard look review)
- Notice requirement disturbed (integrity of the notice requirement)
- Legitimacy/due process concerns
- Court now says ex parte contact have to be in the record IF they influence the final rule or would frustrate judicial review or have fundamental due process concerns.

Question 51

Sierra Club v. Costle (1981)

Answer 51

Issue(s) & Court’s Jurisdiction: EDF alleges that an EPA rule was the result of (1) comments filed after close of the official comment period and (2) meeting b/w EPA officials and various government and private parties.
Holding: Nothing in the statute prohibits the EPA from admitting all post-comment communications into the record.
Controlling Reasoning:
- Docs of central relevance/importance to which there was no meaningful public comment (after comment period ends) and that are included in the record, all parties need to be able to rebut it, otherwise it shouldn’t be included.
- Courts will not impose/make procedures for A’s process. Nothing in APA or statute prohibiting this.

Question 52

District of Columbia Federation of Civic Association v. Volpe (1972)

Answer 52

Issue(s) & Court’s Jurisdiction: Representative Natcher stated publicly that he would hold up appropriations of the district’s proposed subway system unless plans to built a new bridge were revived. The Secretary of Transportation approved construction of said bridge.
Holding: The action was improper due to the pressure of Natcher.
Controlling Reasoning: The Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations.

Question 53

Association of National Advertisers, Inc. v. FTC (1980)

Answer 53

Issue(s) & Court’s Jurisdiction: The Commissioner of the FTC made several comments about his desire to maybe regulate advertising targeted at children, especially related to sugary foods.
Holding: The comments had not shown enough prejudice regarding the issue to justify disqualifying the Commissioner.
Controlling Reasoning:
- Court says no b/c no such rule in APA or the Statute.
- Court will not disqualify a rule making UNLESS there was a clear and convincing showing of an inalterable, closed mind of the decision maker.
- Cinderella Case: formal rule making b/c cross-examination, hearing, SE standard of review.

Question 54

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (1978)

Answer 54

Issue(s) & Court’s Jurisdiction:
- NC decides to make rule = need to use a chart regarding acceptability of proposed waste disposal from the facility to get a liences.
- This RM did not incl. hearing, rebuttal etc. => Was the procedure flawed? Should be like licensure requirement?
Holding: Generally, 553(c) of the APA establish the maximum procedural requirements which Congress was willing to have the courts impose upon agencies.
Controlling Reasoning: Absent constitutional constraints or extremely compelling circumstances, the A should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.

Question 55

American Radio Relay League, Inc. v. Federal Communications Commission (2008)

Answer 55

Issue(s) & Court’s Jurisdiction: FCC promulgated a rule regulating the use of a portion of the radio spectrum based on some studies. It only published redacted versions of these studies however.
Holding: A did not violated procedure by only making available redacted versions of the studies they relied on.
Controlling Reasoning: The court is not imposing new procedures but rather enforcing old APA requirements.

Question 56

National Family Planning & Reproductive Health Assn., Inc. v. Sullivan (1992)

Answer 56

Issue(s) & Court’s Jurisdiction: The HHS changed a rule allowing Title X doctors to counsel patients regarding abortions without engaging in the usual notice and comments process.
Holding: The HHS new rule was invalid because the HHS failed to engage in the notice and comment rule making procedure.
Controlling Reasoning:
- An action that contradicts an action that was a rule b/c it went through N+C = means it is a rule and needs to go through N+ C; it’s not an interpretive rule.
- A new thing that grants rights, imposes obligations = legislative rule = needs to follow 553 procedure.

Question 57

Hoctor v. US Dept of Agriculture (1996)

Answer 57

Issue(s) & Court’s Jurisdiction: The USDA promulgated a rule that fences around enclosures holding Big Cats have to be 8 feet tall.
Holding: The rules was not an interpretive rule.
Controlling Reasoning:
- Court no this is a legislative rule! Need 553:
- Meaning of number = force of law = creating a precise obligation
- Interpretative if explains or illuminates a mandate here it’s a supplement, however
- Number is arbitrary relative to the statute and such a choice is legislating.
- If it imposes obligations or creates rights = N+C

Question 58

Texas v. United States (2016)

Answer 58

Issue(s) & Court’s Jurisdiction: Statutory immigration rules impacted by a direct of the President: If a set of criteria exists, defer action on immigration violations.
Holding: This was a legislative rule.
Controlling Reasoning: Court: this is a rule b/c expected to apply rule w/o discretion = just rubber stamp applications => but legislative rule b/c obligated to follow it!