Concepts and Rules

Question 1

Non-delegation

Answer 1

Constit. Art. I §1: Congress should legislate with respect to departments. Non-delegation is an invitation to understand that legislative controls agencies by framing what they can do (intelligible principle: dictating the term of their mandate).

Question 2

Intelligible Principle

Answer 2

Hampton Case: Congress can create agencies that legislate as long as the grant of rule making power is accompanied by an “intelligible principle.”
=> This is a way of preserving the Constitutional form of government.

Question 3

Exceed Delegated Authority

Answer 3

A. Subject Matter
B. Major Question Doctrine

Question 4

Major Question Doctrine Applies

Answer 4

1. Vast economic/political significance;
2. Congress actively trying/failing to regulate;
3. No expertise specific to the Agency;
4. Federalism/state regulation;
5. Unprecedented/ fundamental revision of the statute.

Question 5

Major Question Doctrine

Answer 5

If there is a MQ = then there is a presumption that the Agency exceeded its authority. A clear articulation can overcome the presumption.

Question 6

Clear Articulation (according to Gorsuch)

Answer 6

1. interpretations in context of statute;
2. age and focus in relation of problem (past actions);
3. past interpretations by the agency;
4. mismatch b/w action an assigned mission.

Question 7

MQD Rationale

Answer 7

Self-government, accountability, delegation of power, preserve federalism and diversity. If Congress has to act, we get consensus and consistency.

Question 8

Appropriations

Answer 8

Spending Bills under Art. I, § 8, cl. 1.
Robertson Case: the amending of substantive law through riders is constitutional even is if it is “re-writing” the enabling act.
Congress may amend an enabling act though riders b/c it is later in time and much more specific legislation (formalistic fulfillment).

Question 9

Presidential Powers Considerations

Answer 9

• Important how duties are assigned to officers => enabling act => specific framing of policies;
• Given to agencies b/c of expertise and efficiency concerns;
• Independent v. Executive department, important because it decides how much politics influences it BUT also more politics = more accountability;
• Congress may split that within the enabling act: for example: rule making = executive, adjudication = independent.

Question 10

Presidential Powers (Youngstown)

Answer 10

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

Executive Orders

Answer 11

There is some SCOTUS jurisprudence, but not much b/c of political question doctrine. Limited to:
- Employment conditions of agencies
- Purchasing and contracting of agencies
- Spending of agencies

Question 12

Principle Officer

Answer 12

Appointed by: POTUS w/ Advice and Consent of Senate (Art. II § 2).
Characteristics:
- Discretion;
- Supervises;
- Has significant authority;
- Removal only according to rules below;
- Appointment by POTUS w/ A&C of Senate.

Question 13

Inferior Officer

Answer 13

Appointed by: POTUS, Courts, Heads of Departments.
Characteristics:
- Less discretion;
- Is being supervised by PO;
- Less authority;
- Removal by superior officer;
- Can be appointed by POTUS, Courts, or HOD.
- Tax hearing officers are IO b/c they are exercising significant discretion. Freitag Case.

Question 14

Employee

Answer 14

Appointed by: Agency employees/managers etc. (no special requirements).
Characteristics:
- Cannot make final decisions;
- No PO or IO;
- Appointment structure.
- Administrative judges = employees b/c they didn’t have authority to issue final decisions.

Question 15

Ineligibility Clause

Answer 15

Art. I § 6 cl. 2
Congress cannot make executive position for themselves or voting for pay raise for office they are expected to occupy.

Question 16

Incompatibility Clause

Answer 16

Art. I § 6 cl. 2
Separation of powers = disallowing Congress to fill positions in the executive branch.

Question 17

Appointments

Answer 17

Depends on PO or IO, have to follow the Constitutional requirements, BUT Congress can create requirements/qualifications needed OR require something like partisan balance.

Question 18

Removals Origin

Answer 18

How much removal does executive have? Not in the Constitution; residual authority that comes with appointment power. Court interprets this very formalistically.
Concerns: legitimacy/accountability vs independence (DOJ vs Federal Reserve).

Question 19

Removals

Answer 19

• Saila Law Case: “For cause” restriction on removal in unconstitutional UNLESS
  (1) multimember expert agencies that are quasi legislative/quasi adjudicative: tenure, staggered terms, non-partisan b/c the structure pointed toward independence and not executing, but ADVISING Congress; OR
  (2) inferior officer + no policy making (would not impede on President’s power);
  because it violates the SOP principle.
• Free Enterprise Fund Case: double layer of ‘for cause’ removal is unconstitutional.

Question 20

De Novo Review

Answer 20

De Novo, when no factual findings then there would be a reason for the court to step in and develop facts.

Question 21

A & C Review Analysis

Answer 21

(1) Character of the Action:
Formal (556/557) or Informal (553/554)?
(2) What kind of action? Rulemaking:
- New Rule
- Rescission: State Farm; DHS
- Change: Department of Commerce (Pretext); FCC v. Fox; Prometheus
- Inaction: Massachusetts v. EPA
(3) Was a A&C?
- Data
- Explanation
- Connection
(4) Pretext?

Question 22

Factors to consider for A & C

Answer 22

• Factors unintended by Congress?
• Fail to consider important aspect of the issue? (e.g. reliance)
• Offer an explanation that runs counter the evidence?
• Action so implausible that it cannot be attributed to difference in view or expertise?

Question 23

Pretext pointers

Answer 23

• Explanation later
• Issues came up later (not until)
• Unstated explanation not enough

Question 24

Inaction Review

Answer 24

It’s not obvious that 706(2)(A) should apply to A inaction b/c As 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: E.g.: a mandate of act and a petition system.

Question 25

Substantial Evidence Review

Answer 25

Generally §706(2)(E) applies when §556 and §557 are involved and proceeding was On The Record (OTR).
What is formal?
Formal Process: looks like a trial (independent adjudication, notice, hearing, reasoned outcome, etc.)
Substantial Evidence: More than a scintilla of evidence.

Question 26

Chevron Analysis

Answer 26

Step “Minus One”: Major Question Doctrine?
Step “Zero”: Does Chevron apply?
I. Dose the rule have force of law/follow APA procedures?
Yes = Chevron applies
No = No deference.
II. Does the agency have jurisdiction?
=> Double reductive “no jurisdiction” argument doesn’t work.
Step One: Is the disputed language ambiguous?
Unambiguous => there is only one construction under the Cannon
Yes => Explicit agency task to interpret?
Yes => Agency UNLESS absurd.
No => Agency UNLESS unreasonable.
No => Follow the language.
Step Two: Deference UNLESS unreasonable. Is the agency’s interpretation unreasonable?

Question 27

Cannon of Statutory Construction

Answer 27

• Teleological approach
• Plain Meaning
• Context (statute, constitutional, historical)
• Intent

Question 28

Unreasonable if:

Answer 28

• Policy: clear error
• A & C
• Conflict with whole scheme
• Absurd result
• Expands A’s power

Question 29

Reasonableness Factors

Answer 29

(1) in line with what A does otherwise; (2) in line with what Congress does; (3) in line with the statute’s purpose; (4) in line with industry standards.

Question 30

Kisor Analysis

Answer 30

Auer Case: deference to A’s interpretation of its own rules is given deference as long as it’s reasonable.
Kisor Case: Auer is still strictly limited:
1. Genuinely ambiguous (exhaust all traditional tools of construction = plain meaning, context, object & purpose) = no single possible meaning.
2. Reasonable interpretation = within the scope of ambiguity = established in step 1.
3. Character and context of the A’s interpretation entitles it to controlling weight (deference).
Character and context:
- Definitive interpretation of A.
- Interpretation is the product of the A’s expertise.
- Interpretation is a result of “fair and considered” judgment (not pretextual).

Question 31

Constitutional Standing

Answer 31

Reason: Important in the adversarial system => want to good fight.
Requirement:
1. Injury in fact that is: (a) particularized and concrete; and (b) actual or imminent and not hypothetical;
2. Causal connection b/w injury and conduct complained of; and
3. Injury redressable through a favorable decision.

Question 32

APA Standing

Answer 32

APA: a person suffering legal wrong b/c of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
§ 702 Zone of Interest Assessment:
- broadly construed;
- enlarge the class of possible applicants;
- if you have Art. III standing you’re probably in the zone.

Question 33

Informal Rulemaking

Answer 33

Informal § 553:
§ 553 (b) Notice
§ 553 (c) Comment
§ 553 (c) Concise general statement of basis and purpose.
Rulemaking is generally driven by the APA and relevant Statutes. We have a conceptual foundation found in § 551 = definitions.

Question 34

Informal vs Formal?

Answer 34

A’s RM is presumed to be informal unless statute clearly designates as a formal process!

Statute may say “on the record” = formal
A explicit rejection of formality = informal
The process may be so formalized as to become formal despite the missing designation.

Question 35

Judicially Hybrid Procedures

Answer 35

Court will not impose any additional procedures UNLESS:
- central relevance
- coercive
- comment-rebuttal
- closed mind

Question 36

Notice Requirement

Answer 36

Notice is important b/c impact and ability to advocate (reliance issue and quality) + better judicial review.
Agencies can change/adapt proposed rules based on comments. As long as it is a “logical outgrowth”
- Indication in notice/history
- Not misleading
- “Was the interested party alerted to the possible changes of the final rule?”
- Final rule in character w/ the original scheme/as proposed?

Question 37

Comment Requirement

Answer 37

Ex parte contacts have to be in the record IF they influence the final rule or would frustrate judicial review or have fundamental due process concerns.
1. A can include records/comments after the comment period closed.
2. If central relevance to A’s action, must be included in the record.
3. A statute’s silence will not be interpreted as a rule of procedure by the courts.
4. 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.

Question 38

Concise General Statement of Basis and Purpose

Answer 38

Concise General Statement has to be a little bit more rational than just promulgating the rule. Has to discuss major policy issues and how it was carefully identified of A of reasons why A chose one policy over another.

Question 39

Informal Rulemaking Exclusions

Answer 39

§ 553:
(a)(1) military or foreign affairs
(a)(2) agency management
…
(b)(3)(A) interpretative rules
(b)(3)(B) for good cause

Question 40

Interpretative vs Legislative Rule

Answer 40

Interpretative Rule:
- Clarifies a rule
- Reminds parties of existing rules
- Tracks a statutory provision

Legislative Rule:
- More than clarify + confirm
- Supplements a rule and statute
- Changes existing law and policy
- Makes explicit what was implicit
- Effects and changes
- Imposes obligations
- Grants rights