Lubbers

Question 1

Who does the President appoint?

Answer 1

The head or heads of agencies.

Question 2

Removal of agency heads

Answer 2

President can remove for any reason, so long as the agency is not considered an “independent agency.”

Question 3

Removal of independent agency heads

Answer 3

President may remove only for cause.

Question 4

Buckley v. Valeo

Answer 4

The Appointments Clause, contained in Article II of the United States Constitution, vests the power to appoint “Officers of the United States” exclusively in the President.

An agency whose members are appointed by Congress may exercise powers of an investigative and informative nature. On the other hand, such members may not exercise powers that fall outside of Congress’s legislative function. Here, Congress exceeded its constitutional powers by authorizing its own officers to make appointments to the FEC.

Specifically, the FEC violates the Appointments Clause to the extent that it has primary responsibility for conducting civil litigation, rulemaking authority, and power to determine eligibility for funds and federal elective office.

Question 5

Selection of principle officers

Answer 5

must be selected by the President with the advice and consent of the Senate

Question 6

Selection of inferior officers

Answer 6

Congress may allow to be appointed by “the President alone, [by] the Courts of Law, or [by] the Heads of Departments.”

Question 7

What are inferior officers

Answer 7

“We think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.”

Inferior officers are characterized by their work being “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Question 8

Free Enterprise Fund v. Public Company Accounting Oversight Board

Answer 8

Double protection unconstitutional, violates separation of powers

The Securities and Exchange Commission, which had appointed the Board, could remove its members only for good cause, and the President, in turn, presumably could remove Commission members themselves only for good cause. According to the Court, this dual level of tenure protection unduly weakened presidential authority over the Board.

Question 9

Humphrey’s Executor v. United States

Answer 9

President can only remove purely executive officers w/o cause

President Roosevelt fired Mr. Humphrey, a commissioner of the Federal Trade Commission (FTC), in violation of a statute that said that a commissioner could only be removed for “inefficiency, neglect of duty or malfeasance in office.”

Under Myers v. United States, 272 U.S. 52 (1926) the President has unrestricted power to remove executive branch officials, such as the postmaster. Here, Myers does not control the removal of an FTC commissioner because, unlike the position of commissioner, the position of postmaster is an executive office restricted to the performance of executive functions.

Question 10

In addition to their protection from removal without cause, the heads of independent agencies typically

Answer 10

appoint the agency staff on their own authority

But even this distinction can be exaggerated. All agencies submit budgetary requests each year to the Office of Management and Budget, and all are treated alike in the President’s budget as submitted to Congress.

Question 11

Morrison v. Olsen

Does a law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting removal without cause violate separation of powers principles?

Answer 11

No. The Constitution divides federal officers into “principal” and “inferior” officers. The Appointments Clause requires principal officers be appointed by the President and approved by the Senate, but allows inferior officers to be appointed by the President, department heads, or the judiciary. In this case, the independent counsel is an inferior officer.

the Act is consistent with separation of powers principles. Congress vested appointment power in the judiciary and removal authority in the Attorney General; thus, Congress did not usurp executive authority for itself.

The good cause requirement is not a burden on the president’s ability to execute his constitutional authority. This is because the president’s need to fully control such “inferior officers” is not central to the functioning of the executive branch.

Rule. A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting removal without cause does not violate separation of powers principles.

Question 12

Can Congress retain for itself the ability to remove an administrative officer (in a manner other than impeachment/conviction)?

Answer 12

No. Bowsher v. Syner:

The Court held that the Comptroller General’s duties under the Act were clearly “executive” in nature. Thus, since Congress had reserved the right to remove the Comptroller General (by a route other than impeachment), it had in effect retrained control over the execution of the law.

Question 13

“Formalist” approach to separation of powers

Answer 13

A formalist analysis assumes that various types of activities fall categorically inside or outside the scope of given branch’s purview. Thus, a judge influenced by formalism is likely to endorse bright-line restrictions on political entities, with little or no overt reliance on policy considerations

Question 14

“Functionalist” approach to separation of powers

Answer 14

openly weighs competing interests that militate in favor of or against a given restriction on the powers of a branch of government.

Question 15

J.W. Hampton Jr. & Co. v. United States

Answer 15

“if Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [regulate] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

Question 16

Industrial Union Department, AFL–CIO v. American Petroleum Institute (The Benzene Case)

The Occupational Safety and Health Act of 1970 (Act) delegated authority to the Secretary of Labor to promulgate standards to ensure safe and healthful working conditions. According to Section 3(8), standards created by the secretary must be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” Pursuant to this Act, the Secretary promulgated a standard to regulate exposure to benzene, a carcinogen.

May the Secretary of Labor set the lowest possible level for benzene exposure on the position without making findings that exposure presents a significant health risk above this level?

Answer 16

No. The Secretary of Labor must make appropriate findings that exposure presents a significant health risk in the workplace at higher levels in order to set exposure levels at the lowest possible level.

Rule. In promulgating standards regarding exposure levels to carcinogens, the Secretary of Labor must make appropriate findings that exposure presents a significant health risk in the workplace at higher levels in order to set exposure levels at the lowest possible level.

Question 17

Ass’n of Am. R.Rs. v. Dep’t of Transp. (The Amtrack case)

Answer 17

Can delegate authority to private entities, but there are limits.

The court held that this delegation of regulatory power to Amtrak went beyond the scope of prior case law and was unconstitutional. Here, Amtrak had standard-setting authority, and the FRA could not necessarily override it; if the matter went to arbitration, the FRA would not get the last word. The court pointed out that, as in Carter, Amtrak had a conflict of interest, because tough standards would be good for its own profit margin.

Question 18

Commodity Futures Trading Commission v. Schor

The Commodity Futures Trading Commission (CFTC) issued a regulation permitting itself to adjudicate counterclaims brought by brokers in reparations proceedings. Schor brought suit against his broker, who then filed a counterclaim against him. Schor then challenged the CFTC’s authority to adjudicate the counterclaim as violating Article III of the United States Constitution.

Answer 18

Congress may authorize agencies to adjudicate claims that otherwise fall within the jurisdiction of Article III courts. When reviewing an Article III challenge, courts consider a number of factors, such as: the extent to which the essential attributes of judicial power are reserved to Article III courts; the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts; the origins and importance of the right to be adjudicated; and the concerns that drove Congress to depart from Article III’s requirements.

Question 19

Stern v. Marshall

Answer 19

In a 5–4 decision, the Court held that a non-Article III judge could not decide a counterclaim because it concerned a matter of private rights—a traditional tort action that was not dependent on any statute and bore none of the earmarks of public rights. The Court distinguished CFTC v. Schor, noting that the counterclaim in Schor was decided by a federal agency that possessed considerable subject-matter expertise and was responsible for administering a regulatory scheme; the agency’s ability to decide counter-claims was important to the functioning of that scheme.

The public rights category covers not only cases in which the government is a party but also some private v. private disputes that arise out of federal regulatory statutes “or in which resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency’s authority.”

Question 20

Right to a jury trial in administrative proceedings?

Answer 20

In Tull v. United States, a court imposed a civil penalty under the Clean Water Act. The Supreme Court held that the defendant had a right to a jury trial on the question of whether civil penalties should be imposed (but not on the issue of the amount of the penalties). Thus, the right to a jury trial turned on whether a court (Tull) or an agency (Atlas Roofing) imposes a civil penalty. The Seventh Amendment can also trigger a right to jury trial in bankruptcy court; the court applies the same type of distinctions between public and private rights that underlay Northern Pipeline and Stern. Granfinanciera.

Only the judicial branch can impose a sentence of imprisonment.

Question 21

Application of Law to Fact - If the Court wants to substitute its judgment, it identifies the issue as one of

Answer 21

law.

Question 22

Application of Law to Fact - If the Court decides the agency’s application is acceptable, it identifies the issue as one of

Answer 22

fact.

Question 23

Delegation of Authority – When a statute empowers an administrative agency to make a legally binding decisions in a subject area, the statute should generally be read as granting the agency discretion to . . .

Answer 23

interpret such language, except insofar as the court finds particular meanings to reside in the statute “as a matter of law.”

Question 24

Chevron

NRDC challenged the EPA’s interpretation of the word source. Was the interpretation acceptable?

Answer 24

When reviewing an agency’s construction of a statute that it administers, courts consider two questions: (1) whether Congress has directly spoken to the precise question at issue; and (2) if not, whether the agency’s answer is based on a permissible construction of the statute.

Question 25

Chevron deference v. strong deference

Answer 25

The Chevron test goes significantly further than “strong deference,” because the Court indicates that it will presume, at step one, that Congress intended to delegate discretion to the agency to resolve any given issue, unless the statute “clearly” indicates otherwise.

Question 26

Under Chevron, how to evaluate whether the statute is “clear” with reference to the issue before it.

Answer 26

The court should use the “traditional rules of statutory construction.”

Question 27

Chevron, step two is similar to what standard

Answer 27

arbitrary and capricious

Question 28

When an agency adopts one interpretation of an ambiguous regulatory statute and the interpretation is judicially upheld, should the agency be free to adopt a different interpretation later, if the interpretation would otherwise be entitled to Chevron deference?

Answer 28

In general, yes, according to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services.

Question 29

Londoner v. Denver

Mr. Londoner and other property owners (plaintiffs) filed a case in state court seeking relief from the city’s assessment of a tax for the cost of paving a street upon which their lands abutted.

Answer 29

When a state legislature commits to a subordinate body the duty of determining whether and in what amount a tax should be levied, and of making its assessment and apportionment, due process of law requires that the taxpayer have notice and an opportunity to be heard before the tax becomes law. Notice must be personal, by publication, or by a law fixing the time and place of the hearing.

Rule. When a state legislature commits to a subordinate body the duty of determining whether and in what amount a tax should be levied, and of making its assessment and apportionment, due process of law requires that the taxpayer have notice and an opportunity to be heard before the tax becomes law.

Question 30

Bi-Metallic Investment Co. v. State Bd. of Equalization

All taxable property in Denver

Answer 30

Where an agency order applies to a large number of people, the Due Process Clause does not require that each person have an opportunity to be heard regarding the order’s adoption.

Question 31

Was to distinguish Bimetalic from Londoner (2)

Answer 31

(1) all of Denver v. some property owners

(2) adjudicative disputed facts v. promulgating policy-type rules

Question 32

Goldberg v. Kelly

Their complaint alleged that City officials administering these programs terminated their financial aid without prior notice and hearing, denying them due process of law. Appellees’ challenged the procedures’ lack of an opportunity to personally appear before the reviewing officer; the procedure did allow for a post-termination “fair hearing,” however.

Answer 32

Where welfare is concerned, only a pre-termination evidentiary hearing provides the recipient with procedural due process.

Rule. The extent to which procedural due process must be afforded is influenced by the extent to which he may be “condemned to suffer grievous loss.” Due process required a pre-termination hearing prior to termination of welfare benefits.

Discussion. The interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State’s interest that payments not be erroneously terminated, clearly outweigh the State’s competing interest to prevent administrative and fiscal burdens. The pre-termination hearing need not take the form of a judicial or quasi- judicial trial, as the “fair hearing” will afford full administrative review later on.

Question 33

Three distilled holdings of Goldberg

Answer 33

1. The right to a continued flow of welfare benefits is an interest protected by procedural due process.
2. Due process requires a hearing before welfare benefits are terminated.
3. A pre-termination hearing must include the ingredients specified in the last paragraph of the opinion: must be allowed to retain an attorney if he so desires; the decisionmaker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing; impartial decision maker is essential.

Question 34

Board of Regents v. Roth

Roth, worked one year, job not protected by university policy or statute. Dismissal without cause provided. Violate Due Process?

Answer 34

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. The State, in declining to rehire Roth, did not make any charge against him that would harm his reputation; nor did it preclude him from obtaining other employment.

Although Roth had an abstract interest in being rehired, he did not have a property interest sufficient to require the University to give him a hearing when they decided not to renew his contract of employment.

Question 35

New property depends on . . .

Answer 35

an entitlement created and defined by an independent source of law such as a state or federal statute. This means that the state can modify or eliminate the property right by modifying or repealing its positive law source.

Question 36

Perry v. Sindermann

Similar facts as Roth, but Perry alleged that his employment contract implied right to reemployment.

Answer 36

The Court held that an entitlement could be based on implied as well as express contract, since implied contract rights are protected in state courts.

Question 37

American Manufacturers Mutual Ins. Co v. Sullivan

Injured workers are challenging Pennsylvania’s recent changes to its workers compensation system that requires a third party to review the medical treatment for appropriateness before payment is rendered.

Answer 37

Does not violate due process:

First, he must prove that an employer is liable for a work-related injury, and second, he must establish that the particular medical treatment at issue is reasonable and necessary. Only then does the employee’s interest parallel that of the beneficiary of welfare assistance in Goldberg and the recipient of disability benefits in Mathews.

Question 38

Cleveland Board of Education v. Loudermill

Respondent was dismissed because of his dishonesty in filling out his application. He was classified as a civil servant, pursuant to Ohio Rev. Code Ann. Section:124.11, and could only be dismissed “for cause” and could “obtain administrative review if discharged,” under Section:124.34.

Must he have a predeprivation hearing, since he is an employee that can only be dismissed for cause?

Answer 38

“All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute.” Respondent’s federal constitutional claim depended on having had a property interest in continued employment, which the Ohio statute clearly created. Some opportunity for the employee to present his side is of obvious value in reaching an accurate decision. Respondent had a plausible argument that may have presented his discharge. The government interest in immediate termination did not outweigh the other interests. However, since the statute afforded a full administrative hearing and judicial review after termination, all that was required before was the essential elements of due process: notice and an opportunity to respond.”

Rule. The pre-termination hearing, though necessary, need not be elaborate. “The formality and procedural requisites for hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.”

Question 39

v. Standards plus discretion. In Town of Castle Rock v. Gonzales, by statute, a police officer “SHALL arrest” a restrained person if the officer has probable cause to believe that the person has violated or attempted to violate a domestic violence restraining order.

Answer 39

Despite the shall language in the statute, the majority opinion held that it did not create an “entitlement” to police enforcement. Instead, the police discretion to arrest or not arrest Simon was discretionary.

Question 40

Does required procedure create liberty or property?

Answer 40

Loudermill establishes that is a state law creates a property interest, the process that is due is determined by federal rather than state law.

NOTE: The reverse situation changes things; suppose that state law prescribes procedures to protect an interest that qualifies as neither liberty or property? If the state then fails to provide those procedures, it violates state law, but not due process.

Question 41

De minimus Deprivations

Answer 41

Goss v. Lopez involved a ten-day suspension of a high school student. The Court held that this interest was not de minimis and the suspended student had a right to due process.

Question 42

Stigma Plus

Answer 42

In Roth, the Court stated that the imposition of a stigma by government could be a deprivation of liberty.

A stigma qualifies as a deprivation of liberty only if the state makes it in connection with some other change of right or status recognized by state law—such as discharge from a job. This something-more requirement is often called “stigma plus.” The Paul decision distinguished Constantineau because state law prevented a “public drunkard” from purchasing alcoholic beverages (thus, meeting the “stigma-plus” test).

A public employee who has been discharged for reasons that are stigmatic in nature has no right to a hearing unless the employer publicizes the reasons for the discharge on its own initiative.

Question 43

Mathews v. Eldridge

Does the Due Process Clause require that the recipient of Social Security disability benefit payments be afforded an opportunity for an evidentiary hearing prior to the termination of his benefits?

Answer 43

No. Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause requires a consideration of three factors: (1) the private interest at stake in the administrative action; (2) the risk of an erroneous deprivation of this interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

Must have procedure before deprivation of welfare benefits, but how much? A questionare and medical examination and report from physician was enough to terminate benefits without a prior hearing.

Question 44

Pre-deprivation hearings in an emergency

Answer 44

In case of emergency, a state can deprive an individual of liberty or property without a prior hearing, even if a later remedy is inadequate.

“An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.”