deck_15830183 Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

What are the two approaches to nondelegation

A

Formalist approach (old and disfavored)
Functionalist approach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What rule determines if something is nondelegation

A

Whether there is an “intelligible principle” - courts will go out of their way to find one and use to frame a “constitutional avoidance” doctrine analysis

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are some cases about “intelligible principle”

A
  1. Ex) WHITMAN - NAAQS under the CAA – “public health” is enough – but Scalia says it is on a sliding scale where more agency power = more intelligible principle needed (forerunner to maj questions?)
  2. Benzene case – when agency exceeds intelligible principle can challenge and will use the “intelligible principle” to frame it. Any cancer rate = bad is against the intelligible principle–i.e. will used this principle to avoid constitutional problems
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

How to interpret an “intelligble principle” analysis

A

Use statutory structure of the legislative intent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Can you delegate authority to a private party

A

NOPE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Judicial nondelegation principle

A

Is this something that the government has created? Public right vs private right- if public right than they can create it that does not let you sue about it OR that lets you sue about it but only in a limited wayh

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How do you tell if something is a public right vs a private right?

A

Two key inquiries: Is this an “article III”-like case, i.e. constuttional type issues that would be made unreviewable;
OR did the parties CONSENT to the administrative law decision – i.e. they have “waived” their private right or consented or w/e

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the limits of congressional review of an agency

A

Laws giving Congress ability to review rules are unconstitutional b/c they violate “bicameralism and presentment” under INS v Chadha – i.e. the constitutional steps that cannot be skipped (2 Congresses plus President or 2 congresses + veto + veto override)

Same would apply if Congressional approval would be required before they are promulgated

But see – “intelligible principle” conversation above – if the Executive has an intelligible principle than the delegation is okay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the two categories of agency power

A

Power to:
(1) search and inspect
(2) have regulated entities report or keep records

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are the limitations on an agency’s ability to search and inspect

A

1) Congress must authorize via statute
2) 4A concerns – must be (a)particularized (b)reasonable and (c) based on probable cause – but subject to exceptions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the exceptions to 4A concerns of an agency’s ability to search

A

General exceptions under 4A - consent - no reasonable expectation of privacy

Specific exception - “pervasively regulated entities”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

When are general warrants surprisingly okay

A

Generally unconstitution but okay if:
1) prospective
2) neturally applied (think OSHA random inspection)
3) has some interla process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What limitations is an agency subject to for general v specific inspection

A

If general inspection is limited to the plan; if there is a complain leading to probable cause will be limited to the particularized warrant (cannot do a spot general inspection)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What remedies exist if an agency illegitimately searched an entity

A

1) exclusionary rule - rare in admin law because little deterent effect–would need to be quite egregious
2) Bivens action for money

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the recordkeeping/recording requirements and how did Congress limit them

A

Subpoenaes must be express
- must promulgate the recordkeeping rules in FR - subject to the PRA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the requirements of the PRA

A

a. Recordkeeping subject to N&C
b. Must demonstrate that it is necessary
c. compatible with existing requirements
d. make allowances for small businesses
e. not confusing
f. THEN OMB and OIRA must sign off and give a control number
g. Remedy for not having a control number: Nonconforming entity cannot be subject to any penalties
NOTE: Subject to exlcusions

17
Q

What is not subject to the PRA

A

Only applies to orgs >10 ppl
Excludes criminal or civil investigations

18
Q

What is the test to see if a record is subject to FOIA

A

First - its not an agency record - i. Test: balancing whether the agency or someone else created, stores, controls, and/or uses the record. Use must be in the pursuit of agency business (e.g., meeting agendas), not just for personal convenience (e.g., desk calendars)

Second - you were not specific enough (use the index)

19
Q

When should you use FOIA

A

After you have exhausted informal channels b/c slow

20
Q

What time limit do agencies have to comply with FOIA

A

20 days - this is a joke - agencies cannot collect fees if this happens

21
Q

What fees are due to an agency?

A

Educational/scholarly - do not pay (except the paper >100 pages)
Non commercial but not supra - only pay for search costs >2h
Commercial - pays search costs AND review costs >2h

22
Q

How is judicial review of FOIA done

A

Under FOIA statute (552) the burden is on the government and the review is de novo

23
Q

What are the requirements of a FOIA request

A

-reasonable/specific
- an agency record

24
Q

FOIA exemptions

A

a. National security
b. Internal personnel rules (how to get a raise and game the system)
c. express statutory exemptions
d. privileged materials (admin lawyer documents)
e. law enforcement materials (case notes)
f. privacy-sensitive materials (autopsy photos)
g. confidential business information:
CBI Rule, must be either:
1. (1) voluntarily given to the government but is not of a sort ordinarily disclosed to the public; or
2. (2) required to be given to the government but its release would cause substantial competitive harm to the submitter

25
Q

Are agencies required to use FOIA exemption

A

NO - but subject to reverse FOIA if CBI because EO 12600

26
Q

How to bring a reverse FOIA

A

Dont go to 552 - must be an independent basis OR the APA 702

27
Q

What does FACA stand for and what does it do

A

Federal Advisory Committee Act - limits when advisory committes can be made to:
a. showing that the public interest requires it
b. with a charter setting forth its organizing principles
c. and a sunset date.
d. Membership must be balanced and inclusive,
e. there must be agency oversight and control of the committee,
f. and the meetings must be noticed and open.
g. Exemptions: Advice from individuals, or from bona fide government employees, or communications regarding facts instead of opinion are exempt

28
Q

What is the government in the sunshine act and when does it apply

A
  1. Government in the Sunshine Act – only applies to agencies that are “collegial decision making bodies” usually ones that have a board instead of a head (think FCC or NLRB) – a meeting occurs only when there is a “quorum” and all meeting must be public, so often great pains are made ensure a quorum is not going to occur
29
Q

How can you get fee shifting as a lawer

A

Many individual statutes, e.g. FOIA statute have fee shifting (not FOIA has a “voluntary cessation” does not moot provision)

or EAJA (equal access to justice act) which creates a CoA when
i. A party prevails in some way
1. This is required for all statutes and requires that there is “judicial imprimatur” on the victory – so settling does not count; cessation of the behavior (mooting the case) does not count; a court-enforced settlement (i.e. a consent decress, or a retention of jrx) does court
ii. The government is unable to establish that its position was substantially justified (thus reasonable to litigate)
1. This is helped when the law is in flux OR when the lower court or a body of law agrees with the government’s position (but it is not determinative)