Terms, Tests, Etc.

Question 1

What is Formalism?

Answer 1

Constitution is the Rule Book and we must follow it.

Question 2

What is Functionalism?

Answer 2

Constitution is framework but there is real flex to get things done.

Question 3

What are the 4 types of legislative control over an agency?

Answer 3

1. Legislative authorization with an authorizing act or enabling act that confers particular powers & responsibilities
2. Revision of powers conferred by enabling acts (i.e. new statutes passed that alter enabling acts)
3. Power of the Purse
4. Oversight: Catchall for informal, indirect or invisible Congressional techniques

Question 4

What Constitutional Provision leads to the Nondelegation Doctrine?

Answer 4

Article I, §1: “All legislative power herein granted shall be vested by Congress.”

Question 5

What are the 4 purposes behind the Nondelegation Doctrine?

Answer 5

C.J Rehnquist from The Benzene Case
(1) To ensure that “important choices of social policy are made by Congress, the branch of our Gov’t most responsible to the popular will”
(2) To provide the recipient of a delegation an “intelligible principle” to guide the exercise of the delegated discretion
(3) To enable reviewing Courts to “test that exercise against ascertainable standards”

J. Scalia from Mistretta Dissent
(4) To distinguish between the policymaking “inherent” in “executive” action and the “naked” policymaking characteristic of a legislature.

Question 6

What is the Intelligable Principle Standard?

Answer 6

When looking at delegation issues. Standard demands that there is a clear realm that agency acts within. They can’t be granting a “blank check.” This is almost never seen as violated.

Question 7

What is the Major Questions Doctrine Test?

Answer 7

(1) Is the action Major?
(2) Is there clearly articulated Authority (agency can overcome major question with a “clear articulated authority from Congress)?

Question 8

Under Major Questions Doctrine, what constitutes “Major”?

Answer 8

• Vast political & Economic significance
• Congress has been grappling with this.
• Unprecedented/ rewriting of Power used in past
• Federalism/ states should handle
• Spending lots of money
• Agency doesn’t’ have special expertise over Congress

Question 9

What are the 3 types of influences weilded by the appropriations process?

Answer 9

1. Sheer size of the appropriations (If small relative to what is required by law, it may effectively prevent the agency from undertaking new initiatives or expanding the scope of activities.)
2. The Specificity or generality of the budgetary categories used in the appropriations act (The more general or specific the category—the limiting case being a single lump-sum appropriation for an entire agency, or a large division of an agency—the greater the effective discretion bestowed on the agency. )
3. Riders or Specific Statutory language placing additional constraints on conditions on agency powers beyond those contained in the enabling act. (Most riders take the form of an explicit prohibition on the use of appropriation funds for a particular project or activity that is disfavored by Congress.)

Question 10

What Constitutional Provision grants the President his power?

Answer 10

• Article II, §1 of the Constitution says, “The Executive Power shall be vested in a POTUS”
• His domestic powers grow out of Article II, §3, which requires the President to “take care that the laws be faithfully executed”

Question 11

What are the Youngstown Jackson Factors for considering Presidential Power?

Answer 11

1. The President’s power are strongest when Congress gives authority for the President’s actions (and/or the Constitution expressly does): Constitution, + Congress
2. (2) Where both Constitution and Congress are silent, the President’s inherent power is in a “twilight zone”: Constitution, +/- Congress
3. The President’s powers are the weakest where Congress acts against the President: Constitution, - Congress

Foreign Affairs & Military tend to fall into categories 2 and 3.

Question 12

What Constitutional provision gives the President Appointment Powers?

Answer 12

Article II, §2 provides that the President “Shall appoint… officers of the US”
* Presidential appointments must be made “by and with Advice and Consent of the Senate”
* Cl. 2 expressly empowers Congress to “vest the Appointment of such inferior Officers, as they think proper, in POTUS alone, in the Courts of Law, or in the Heads of Departments.”

Question 13

How is a Principle Officer Appointed?

Answer 13

President appointed with Advice & Consent of Senate
Art. II, Sect. 2, Cl. 2

Question 14

How is an Inferior Officer Appointed?

Answer 14

President, Court, or Heads of Dep’t Appointed.

Question 15

What is an Inferior Officer?

Answer 15

Scalia in Edmond v. US (1997)
* The term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: whether one is an “inferior” officer depends on whether he has a superior… 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 Senate.

Question 16

What Constitutional Provison manages recess appointments?

Answer 16

Article II, §2, cl. 3: “POTUS shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session”

Question 17

What is pro forma?

Answer 17

Senate in session but a recess like Senate. (No votes take place; formally in session but not working).

Question 18

What is an employee?

Answer 18

Buckley v. Valeo, Footnote 162: “‘Officers of the United States’ does not include all employees of the US, but there is no claim made that the Commissioners are employees of the US rather than officers. Employees are lesser functionaries subordinate to officers of the US, whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, juridical, or legislative authority.”
* Employees lack discretion, are subordinate to officers (they can be hired, fired, etc), autonomy, not appointed

Question 19

How do the Removal Cases break down between formalism and functionalism?

Answer 19

• Functionalism: Bowshar and Morrison
• Formal: Chadha, Clinton, Myers

Question 20

Why is Humphrey’s Executor considered an exception to the removal rules?

Answer 20

Rules on removal are permitted in cases:
* Multi-member panel, Staggered term, nonpartisan, panel was advising congress.
* The structure must point away from politics.

Question 21

What APA provision contains the definitions?

Answer 21

• §551(1): definition of “Agency”
• §551(4): definition of “Rules”
• §551(5): definition of “Rule Making”
• §551(6): definition of “Order”
• §551(7): definition of “Adjudication”

Question 22

Which APA provision provides a Cause of Acton?

Answer 22

§702 says you can sue agencies in Federal Court

Question 23

What is §706(2)(A)?

Answer 23

Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

• Arbitrary & Capricious Review (Informal)
• Fewer procedures in place so court has more power (ie Informal Rule making)

Question 24

What is §706(2)(B)?

Answer 24

Contrary to constitutional right, power, privileges, or immunity;

• Constitutional

Question 25

What is §706(2)(C)?

Answer 25

In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

• Ultra vires (exceeding authority granted to it)

Question 26

What is §706(2)(D)?

Answer 26

Without observance of procedure required by law;

Question 27

What is §706(2)(E)?

Answer 27

Unsupported by substantial evidence in a case subject to §§556 + 557 or otherwise reviewed on record of an agency hearing provided by statute; or
* Substantial Evidence Review
* Procedure more rigorous so courts have less power here (ie Formal Matters/ On the Record)

Question 28

What is §706(2)(F)?

Answer 28

Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

• De Novo Review
• Asking Court to scrap everything and develop facts themselves. The agency acted counter to the facts

Question 29

What is the Arbitrary & Capricious Analysis?

Answer 29

1. What Data did they have?
2. What explanation did they give?
3. Is there any rational connection between the data and their explanation?
4. Any pretextual concerns?

Question 30

What type of action does §706(2)(A) apply to?

Answer 30

• This standard of review may be applied to any agency action but specifically informal rulemaking and informal adjudications. (Recission, change, inaction)

Question 31

What’s another name for Arbitrary and Capricious review?

Answer 31

Hardlook review

Question 32

Under Chevron, what happens where there is an unclear/ambiguous statute that grants explicit authority?

Answer 32

Explicit Grant of Authority: Defer to the Agency unless arbitrary or absurd.
* Rarely happens that something is so wildly off base.

Question 33

Under Chevron, what happens where there is an unclear/ambiguous statute that grants implicit authority?

Answer 33

Implicit Grant of Authority: Defer to Agency unless unreasonable
* More common that Congress implicitly gives authority to Agencies.

Question 34

Under Chevron, what is unreasonable?

Answer 34

If the interpretation is in conflict with the design and structure of the entire statutory scheme the agency’s interpretation (although seemingly owed deference) is unreasonable.

Question 35

What is Kisor deference?

Answer 35

Looks at an agency’s interpretation of its own regulation rather than a Congressional statute.

Test: (1) Genuine ambiguity; (2) Reasonableness; (3) Whether the character & context entitles it to deference

Auer Deference Steps (with Kisor limitations)
1. Is the regulation truly/genuinely ambiguous? (If there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.)
2. Is the agency’s reading reasonable? (It must come within the zone of ambiguity the court has identified after employing all its interpretive tools)
3. Not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Must look at the Character & Context

Question 36

Under Kisor, what is considered Character & Context?

Answer 36

• Definitive Interpretation: Must be the agency’s “authoritative” or “official position” (ie Mead)
• Product of Expertise: Must in some way implicate its substantive expertise
• When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.
• Must reflect “fair and considered judgement”/ Pretextual?/ BS before going to court?
• Not a “convenient litigation position” or “post hoc rationalization advanced to defend agency action against attack”

Question 37

What APA statutes govern formal proceedings?

Answer 37

§§ 556 + 557

Question 38

What is the Court looking for under Substantial Evidence reivew?

Answer 38

• Substantial evidence is “more than a mere scintilla.” It means—and means only—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”
• Meant only if the agency didn’t consider any evidence. They aren’t being reasonable. They neglected, ignored, or had no facts before them. Or, the agency action will survive if they consider a piece of evidence that points in their direction.

Question 39

What is required for Constitutional Standing?

Answer 39

1. Injury in Fact that is (A) Particularized, (B) Actual, and (C) Imminent;
2. Causation, AND
3. Redressability (let’s say you win, do your problems actually go away?)

Question 40

What is considered an injury for standing?

Answer 40

• Personal and individual
• Concrete (de facto, actually existing)
• Imminent

Question 41

What is the APA’s grant of standing?

Answer 41

APA §702 grants an expanded view of standing.
* Aggrieved or adversely affected is much broader
* One may not have a legal injury but you can be aggrieved or adversely affected by an agency action.
* “Zone of Interest”: Court almost never sinks standing on APA standing because it is super broad and hardly ever actionable. (If you satisfy Constitutional standing, you’ll definitely be in the “Zone of Interest”)

Question 42

What are the APA’s 2 established procedures for rulemaking?

Answer 42

• Informal (§553) (“Notice & Comment”) Rulemaking
• Formal (§556 & §557) (“On the Record”) Rulemaking

Question 43

What are the APA’s 3 requirements for §553 Rulemaking?

Answer 43

1. The public must be given “notice” of the proposed rulemaking;
2. The public must be given an “opportunity” to comment orally or in writing on the proposed rule;
3. The agency must incorporate in the final rule a “concise general statement” of its “basis and purpose”

Question 44

What are the §553(b) Notice Requirements?

Answer 44

1. Time, place, and nature of public rule making proceeding;
2. Reference to the legal authority under which the rule is proposed; and
3. Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Question 45

For informal rulemaking, what are the judicially created limits for ex parte comments?

Answer 45

When private parties/lobbyists attempt to communicate with agency officials off the public record, then
1. communications received before the formal notice need not be included int eh public record, unless the communication formed the basis of the agency action;
2. Once a notice of proposed rule making is issued, all agency officials should refuse to discuss rule making proceedings with interested parties or agents; and
3. If ex parte communications occur, their documentation/summarized transcript should be placed in the public file immediately.

Question 46

Are ex parte contacts permissible in formal rulemaking?

Answer 46

No.

The APA prohibits ex parte contacts in formal adjudications (§557(d)) because such contacts undermine the integrity of the agency adjudicative process, a trial-type hearing, presided over by an impartial decision-maker modeled on a civil trial.

Question 47

What test is used to determine if a decision maker is biased?

Answer 47

An agency member may be disqualified from participating in rulemaking if there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding.

Question 48

What are the §553(a) categorical exemptions?

Answer 48

§553(a) categorically exempts from the operation of §553 any rulemaking involving “a military or foreign affairs function” or matters of “agency management or personal or…public property, loans, grants, benefits or contracts”

Question 49

When may an agency not follow notice and comment?

Answer 49

§553(b) contains exceptions from the notion-and-comment requirements (except “when notice or hearing is required by statute”) for “interpretative rules, general statements of policy, or rules of agency organizations, procedure, or practice” and for situations in which an agency has “good cause” to dispense with notice and comment.

Question 50

What types of Constitutional Challenges can you bring against an agency?

Answer 50

• Major Questions Doctrine
• Nondelegation
• Appointments/Removal
• Standing

Question 51

What is the Administrative Proceudre Act of 1946 (APA)?

Answer 51

5 U.S.C. §§ 551-559, 701-706

This Act is considered the “Constitution” and bedrock of Federal Administrative Law.

Question 52

What are key modes of statutory interpretation?

Answer 52

• Object & Purpose
• Plain Meaning
• Context

Question 53

What Constitutional provision governs standing?

Answer 53

Art. III, §2, of the Consittution limits the federal judicial power to the adjudication of “Cases” and “Controversies”