Final

Question 1

Clear statement rules:

policy based sources/ constitution

Answer 1

when an act can be interpreted to abridge long-held individual or states’ rights, or when it appears that a legislature has made a large policy change, courts generally won’t interpret the act as abridging those rights or making that change unless the legislature is clear about its intention.
areas required: Federalism: state government; Preemption: federal law>state law. American Indian treaty rights. sovereign immunity

Question 2

Harmonizing statutes

Answer 2

try to reconcile the conflict between statutes(if no, 이 순서대로)->(a) more specific statutory language controls: specific one is construed as an exception (b) later enacted statutes control (c) repeal by implication disfavored: repeal should be explicitly. the second statute is repealed only to the extent of the irreconcilability. Presumption against repeal is especially strong when later bill is an appropriations bill

Question 3

How this presumption be overcome(Congress not tend to repeal)

Answer 3

(1) new statute covers entire subject matter of prior statute (2) new statute is completly incompatible with the existing one.

Question 4

Hierarchy of legislative history

Answer 4

conference committee report, house and senate committee reports, earlier drafts of the bill, sponsor and drafter’s commentary&raquo_space; floor debate statements(only one legislator, sometimes with no audience), unenacted bills, congressional silence, presidental siging statements and veto messages.

Question 5

What’s within or missing from the leg

Answer 5

History: congress never discussed the likely outcome of “technical change,” that congress did not intend this absurdity[denying ordinary meaning]
* Even if it’s not absurd, making legislative history irrelevant, for exam pupose you should cover all these steps

Question 6

Criticism of using legislative history

Answer 6

constitutional issue(it does not follow the enactment process, due process requires that citizen have notice of the law, legislative history gives surprises), accessiblity and cost consdieration(hard to find, timeconsuming and expensive to examine), reliability concerns(legislators don’t read every report or atten every debate)

Question 7

Unexpressed purpose

Answer 7

legislative history/title, purpose of criminal law generally(to promote justice)[can confirm ordinary meaning of unambiguous text, resolve ambiguity or prevent absurdity]
In Clifton, courts said the statute was not ambiguous, but rejected the government’s interpretation that resulted absurdity. It considered purpose of the act and criminal law(to promote justice) generally.
In Church of Holy Trinity, it used purpose to trump plain meaning. In title,“perform labor” the court interpreted it only to include manual labor to reflect the purpose.

Question 8

Executive vs. independent agencies

Answer 8

Executive agencies: all departments and all agency within it. Follow the president’s. Department of interior/~service, Bureau of Indian Affairs.
Independent agencies: not part of any department. headed by multi-member board from both political parties, makes decision by majoriy vote, members can only be removed for cause, serve a speific term of years on a staggered basis-president can’t change it in one term.(~commission, board)

Question 9

Prudential policy canons

Answer 9

(1) When an act partially repeals or abolishes common law rights, act is in derogation from common law. courts should strictly interpret acts(statutes) in derogation of the common law.
(2) courts should broadly interpret remedial acts, creating new rights or expanding existing remedies.

Question 10

Advantages and disadvantages of agency regulation

Answer 10

Advantages: agencies can act more quickly than legislatures or courts, specialized expertise, more responsive to elctorate than judiciary.
Disadvantages: costly(overregulation raises cost of doing business)
Post-enactment legislative context (subsequent legislative action and inaction)

Question 11

Definitions of rulemaking and adjudication

Answer 11

Rulemaking: acting like legislature. Making, amending, repealing a rule(regulation). Involves a new rule that applies to large number of regulated entities and is binding in the future.
Adjudication: acting like courts. Applies an existing rule or statute to a set of facts in an individual case. Results in an “order” (final disposition)

Question 12

Legislative vs. non-legislative rules

Answer 12

Legislative rule: binding requirement, have the force of law, must go through notice and comment.
non-legislative rule: Don’t have the force of law, exempt from notice and comment unless required by statute. ex. Policy statement: how agency plans.. advise the public.. / interpretive rules

Question 13

Process of informal rulemaking (notice & comment, publication)

Answer 13

Most rulemaking is informal.
Notice of Proposed Rulemaking: must reference legal authority under which rule proposed, must fairly apprise interested persons of issues involved.
Public Comment Period: public’s opportunity to submit views in writing, no minimum time period for comments set by APA
publication of final rule with “general statement of basis and purpose” must be published at least 30 days before effective date unless there’s good cause.

Question 14

Exceptions to notice and comment (including good cause)

Answer 14

(1) Three categories of legislative rules: Military and foreign affairs, matters related to agency management or personnel, matters related to public property, loans, grants, benefits or contracts. (2) Rules of agency organization, procedure, and practice (3)good cause exception: if N&C is impracticable, unnecessary, or contrary to public interest. (4)nonlegislatvie rule(also exempted from 30day req. publication)

Question 15

Definitions of rulemaking and adjudication

Answer 15

Rulemaking: acting like legislature. Making, amending, repealing a rule(regulation). Involves a new rule that applies to large number of regulated entities and is binding in the future.
Adjudication: acting like courts. Applies an existing rule or statute to a set of facts in an individual case. Results in an “order” (final disposition)

Question 16

Post-enactment legislative context

inaction:(super strong stare decisis), (Legislatvie acquiescence)
actions: (subsequent legislative Bills&Acts)(Subseqent legislative history)

Answer 16

(super strong stare decisis) Stare decisis is even stronger in statutory interpretation. If legislature didn’t react to court’s interpretation, court** shouldn’t alter** its interpretation
(Legislatvie acquiescence) courts presume that legislature’s failure to act means agreement with court’s interpretation(even though that presumption can be wrong)

(subsequent legislative Bills&Acts) may affect the meaning of an existing act
(Subseqent legislative history) canon is that subsequent legislative history should never be relevant. There are some exceptions.

Question 17

Mechanisms of legislative oversight over agencies

Answer 17

• enabling legislation: can decide whether to delegate authority broadly or narrowly to agencies in the enabling legislation. Can impose more procedures than APA requires in the enabling legislation, which is called hybrid rulemaking. (세부조건)
• subsequent legislation: by amending or repealing the enabling acts, congress can narrow or revoke the authority that was originally given to agency. Can also require agency to follow new procedures in subsequent legislation.
• appropriations: enabling acts must authorize legislative appropriations for agencies to get money. Congress can decide to limit the authorization of funding by time(일정기간) or purpose, or it can impose a ceiling.
  hearings/investigations/audits: hearings are often publicized to mobilize public and political pressure.
  Congress established organizations that are part of executive branch and oversee agencies.

Question 18

Mechanisms of executive oversight over agencies

Answer 18

appointment power:
under the constitution, president has the power to appoint principal officers, with the Senate’s approval.
Congress has power to vest the appointment of inferior officers in the president, courts, or heads of departments.
The Constitution does not limit president’s ability to appoint or remove an employee.
2 part test for determining if someone is an officer(v. Employee): whether the individual holds a “continuing and permanent” position established by law, whether the individual exercises significant authority under the laws of the US
Principla v. Inferior officers: inferior officer has a superior between herself and the president.
removal power: the Constitution vests removal power in the presidnet. Congress can provide that president may only remove officers for cause.
executive orders:no legally enforceable procedural requiremnet(to interpret or implement federal law) how to execute.
presidential directives: Similar to executive orders, but less formal
signing statements: executive’s intent of implementing the law- influence agencies’ interpretaion-courts often defer to it.

Question 19

Nondelegation doctrine&intelligible principles doctrine

Answer 19

Nondelegation doctrine: under formalist interpretation of separation of powers, Congress cannot delegate its legislative/policymaking power to a federal agency that’s within the executive branch. Some delegation are ineviatable and necessary that SCOTUS has struggled to create the limits.
Intelligible principles doctrine: congress may delegate policy-making power to agencies under Necessary & Proper Clause, as long as Congress provides intelligible principles or standards to guide agencies’ exercise of that delegated power.

Question 20

Standards of review for findings of fact and policy

Answer 20

Standard of review: the amount of deference, if any, that a court gives an agency’s interpretation or finding in reviewing the case
for informal rulemaking and adjudication arbitrary & capricious: whether agency’s findings were based on a consideration of relevant factors; OR whether the agency made a clear error of judgment.
for formal rulemaking and adjudication substantial evidence
: whether the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.”