Intro Flashcards
1
Q
Differing Perspectives on Admin Law
A
- one view = fairness, neutrality + reasonableness
- another view = entrenching the power of elite lawyers
- Kagan - protect presidential power
- Minnow - return value to tax payers (winds up prioritizing those who pay more)
- potentially may have started out neutral + efficient, but no longer accomplishes this because of overall dysfunction
2
Q
General Relationship Between Congress and Administrative State
A
Overall, what happens in Congress impacts the administrative state
- Congressional inaction forces agencies to do things to address novel problems
- the more laws Congress passes, the more agencies and actions
- Congress has to appropriate $ for agencies to act
- Congress confirms appointees to various positions
- Congressional oversight (hearings) - impacts how agencies use their time + how that time is allotted
- specificity - the more specific and clear Congress is in its legislative enactments, the easier it may be for agencies
3
Q
Current State of Congress
A
- Prof emphasized that we currently lack a functioning legislature
- lengthy inability to elect a speaker
- only passed 24 laws in 2023
- we are in a very long period of Congressional inaction - gridlock, heightened partisan divide, failure to address complex problems
- inaction creates gaps -> administration needs to fill in gaps to address big problems implementing laws passed that aren’t really designed to address these big problems
4
Q
Binder Reading - Reasons for Congressional Inaction
A
- polarized ends
- close elections (close separation between majority and minority in terms of numbers) - > game-playing, in which you can theoretically always win the next election + there’s no incentive to cooperate to get what you want
- intra-party bicameral disagreement between House + Senate
- incentive for minority party to play confrontational role in Senate - decreasing political cost for filibusters
- loyal + cohesive parties - partisan team play instead of crossing aisles to address underlying policy issues
5
Q
Historical Overview of SCOTUS Relationship with Admin Law
A
- pattern - some kind of gov action followed by political backlash to gov response + court’s modulation of that growth/backlash
6
Q
Marbury v. Madison
A
- Prof noted this as reinforcing notion of checks + balances -> important starting point for the pattern she emphasized
7
Q
1st Big Cycle of Admin Law
A
- late 19th century, industrialization (disruptive event) -> challenges of more complex urban society prompted gov action (Progressive Era) -> SCOTUS pushes back on gov intervention with Lochner
- laissez-faire econ strongly influenced courts -> SCOTUS starts to invalidate econ regs
8
Q
2nd Big Cycle of Admin Law
A
- Great Depression -> Congress responds w/ significant expansion of fed gov (SEC, NLRB, WPA, SSA)
- National Industrial Recovery Act -> required industry-wide codes (can set prices, wages, output - handing over control of econ to sectoral alliances) -> companies were not happy -> Prof described response as non-delegation doctrine’s moment in the sun (Schecter Poultry)
- Schecter Poultry = the last time SCOTUS invalidated something on the basis of the non-delegation doctrine (said Congress can’t wholesale delegate its legislative authority to agencies)
- counterpoint - the Great Depression required major level of detail Congress wasn’t equipped to develop
9
Q
Non-Delegation Doctrine Standard
A
- pops up after Schecter Poultry - need an “intelligible principle”
10
Q
Broader Reasoning of Schecter Poultry
A
- Prof emphasized that SCOTUS recognized the bigger problems Congress was trying to address
- BUT concluded extraordinary conditions do not create or enlarge constitutional powers
11
Q
3rd Cycle - Disruptive Event
A
- FDR’s court-packing scheme
- concept of failure as court reform but success as admin law reform
- SCOTUS kept striking down New Deal legislation (said exceeded fed gov’s authority)
12
Q
3rd Cycle - Judicial Response
A
- initially, switch in time that saved nine (Roberts began citing with liberals) -> Parish v. West Coast Hotel
- even though court-packing scheme never went through, wound up prompting SCOTUS approval of New Deal programs + broader inervention of fed gov in econ + social matters
13
Q
APA (Within Context of Admin Law Cycles)
A
- comes at outset of a relatively tranquil period in admin law
- self-correction of FDR + Truman admin.
- strategic move to head off any more aggressive reform of the administrative state
- followed by relatively stable and deferential period of admin law (calm relationship between courts + admin. state)
14
Q
Criticisms of Official Admin Law Story
A
- role of elite lawyers in creating the original “compromise”
- Labor movement + progressive reformers favored an approach to admin decision-making that selectively empowered particular representative organizations … but the APA’s rule-making process requires unions and business orgs/the elite to compete on formally equal participatory footing and does nothing to account for business’ disproportionate ability to engage in governing process at every level
- APA process dominated in practice by concentrated business interests
-> logical outgrowth issue
-> need to respond to significant comments - means more likely o cave to business rather than spend time and energy on litigation
15
Q
Bagley APA Reading
A
Calls for revival of thinking that connects legitimacy of admin state to:
- its ability to satisfy public aspirations,
- enable fairer distribution of wealth and political power
- protect us from predations of private corps
- minimize risks to our health, financial security, + livelihood
16
Q
Freeman and Minnow Reading - Overview
A
- fed + state gov relying a lot a start of 21st century on ongoing contracts w/ private providers for much broader range of gov functions
- modern outsourcing = rxn to period beginning w/ Progressive Era + lasting through New Deal when disillusionment w/ private sector led to popular support for entrusting public institutions w/ greater responsibilities and gov growing dramatically -> by late 1970s swimming towards private markets and competitive practices (expectations of gov change)
- result: gov not indispensable now even for functions we think of as inherently governmental
- citizen as customer (not caring about identity of provider)
17
Q
Freeman + Minnow - Why Contract System Doesn’t Work
A
- invisible + unresponsive to public in whose name it’s undertaken
- fails to guard against inefficiency, conflict of interest + abuse
- much of power being exercised through contracting is largely unaccountable to any regime of oversight (market, legal or political)
-> need capacity w/in gov to develop + monitor contracts
