Rulemaking & Adjudication

Question 1

types of agency actions

Answer 1

1. rulemaking

2. adjudication

Question 2

outcome of agency rulemaking

Answer 2

rule

Question 3

agency rule

Answer 3

statement of general or specific applicability
that operates like a statute
with a future effect of
implementing law or describing agency procedure

Question 4

outcome of adjudication

Answer 4

order

Question 5

agency adjudication

Answer 5

application of agency law to a fairly discrete group of entities that often turns on the application of existing law to a particular set of facts (like a judicial decision)

• operates like “mini law-making”
• mostly retrospective
• can be somewhat prospective by placing others “on notice”

Question 6

rulemaking process

Answer 6

1. informal (aka notice & comment) s553

2. formal (APA s556/557)

Question 7

informal aka notice & comment

Answer 7

• covered by APA s 553
• large category, dominant mode
• contains trigger clause to push to formal
• lots of ex parte disclosure

ex: rules promulgated under the Patient Safety and Quality Improvement Act regarding Patient Safety Organizations . . . notice and comments

Question 8

APA Notice Elements

Answer 8

1. statement of time, place, and nature of proceeding
2. reference to legal authority under which rule proposed
3. terms or substance of proposed rule
4. invitation for comment

Question 9

comment period

Answer 9

usually 60d

Question 10

informal rule timeline

Answer 10

notice
comment period 60d
comment considerations
final rule

Question 11

exceptions to notice/comment period

Answer 11

1. agency issuing interpretive read
2. internal operations procedure
3. rules that reduce regulation
   * * Emergency Executive Orders (ex: vaccine mandate) – effective immediately via final rule w/6mos. period for traditional notice/comment period

Question 12

trigger language for formal rulemaking

Answer 12

rules required by statute to be made “on the record after opportunity for agency hearing” –> applies 556/557 instead of 553 (ex: Dodd Frank)

Question 13

formal adjudication process

Answer 13

• APA rules
• provides standards of review
• most dominate form of adjudiciation
• trial-type substantive evidence on the record

Question 14

Chevron 1984 case

Answer 14

facts: statute = Clearn Air Act Amendments
Carter Administration: apply the law distributive sense to each smoke stack
Reagan: applying the law collectively smoke stack to entire plan “bubble approach”

Question 15

Chevron’s 2-step test for evaluating agency statute

Answer 15

• 2-step test for evaluating agency statute:
  1) . has Congress spoke directly to the precise issue? Intent of congress? If yes –> use that. No –> #2
  2) . silent/ambiguous: is the agency’s interpretation reasonable? Y–> uphold. N–> maybe strike down, remand for considerations, etc.

Question 16

advantages Chevron deference

Answer 16

1. position/knowledge: cts = generalitst; agencies = better position via complex expertise
2. democracy: cts not accountable to ppl; agency more responsbility b/c have to answer to Congress oversight and president election
3. consistency (1 agency vs. 1000 lower courts and jurisdictions)

Question 17

disadvantages of Chevron deference

Answer 17

• agency capture concern
• Marbury 1706 court interpretive power
• gives president too much power via agencies

Question 18

examples of judicial review of agency statutory interpretation

Answer 18

1. Skidmore (how persuasive)
2. Chevron (deferential)
3. Mead (how to shift: between = L)

Question 19

Skidmore 1944

Answer 19

• FLSA interp awake & ~eating = OT
• how persuasive agency’s interpretation
• not deferential
• factors: contemporaneous, longstanding, consistency, public reliance, public controversy
• informal adjudication
• congress retaining power reflective of APA s706 directive

Question 20

Mead Corp. 2001

Answer 20

• tariff classification rules re diaries vs. dayplanners
• how much deference in situation: shift from skidmore to chevron when congress explicitly tells to do so granting agency powers
• if congres sintends to be deferential in rulemaking or formal adj
• NOT given agency tremendous power via deference in the informal adjudication sphere

Question 21

checks on agencies

Answer 21

• executive (OIRA cost/benefit analysis)
• judicial (Skidmore, Mead, Chevron)
• congress (create/destroy, x4 checks)