The Adjudication/Rulemaking Choice Flashcards
If an agency decision is more (blank) it normally will have to hold formal hearings, and a court will review it for technical compliance with the APA’s notice and comment rules and the (blank) test.
- Legislative/Rulemaking
2. Arbitrary and Capricious test
If an agency decision is more (blank) courts will expect it to hold hearings and might review factual findings on the (blank) test
- Adjudicative
2. The Substantial Evidence test
T or F: Agencies with rule making authority cannot make policy through adjudication OR rulemaking, this choice is not discretionary.
FALSE. Agencies with the proper rule making authority CAN make policy through either adjudication or rulemaking, this choice is discretionary (Chenery)
Which is more thorough and efficient, rulemaking or adjudication?
Rulemaking is both more thorough and efficient.
Do courts impose more scrutiny when an agency chooses adjudication or rulemaking?
Courts impose more scrutiny when an agency chooses adjudication, because this overlaps with the court’s role.
What are four advantages to adjudication?
- Can be easier to see what the correct policy should be in the context of a particular fact situation, rather than in the general abstract of all situations
- When the agency initiates the adjudication, it can choose the best defendant for establishing a particular enforcement policy
- When an agency adjudicates a case, usually only the parties to the case have the opportunity to participate in the decision, rather than the public at large
- The adjudication process is less in the puvblic and political eye, which better insulates the agency from outside pressures to adopt a certain policy
What are five advantages of rulemaking?
- Saves time and resources: an agency can decide an issue in one proceeding instead of adjudicating over and over on the same issue.
- Rule making establishes LAW not precedent, future adjudications cannot override rule making, can only apply rules made.
- Immediate general application of the law plus clarity results in greater compliance
- Gives advanced notice of legal requirements and gives regulated parties an opportunity to participate in the formulation of the rule
- Procedures for IR used to be much less formal than for IA, but courts have over-proceduralized IR, so agencies may prefer IA nowadays.
T or F: It is ok to control adjudication through substantive legislative rule making
True. The primary function of LRs is to stop litigation before it starts by reaching certain conclusions prior to adjudication so it doesnt have to be relitigated. LRs ask whether the claimant fits under the rule rather than under the statute
What are some advantages of LRs?
- Gives clearer notice of what will constitute impermissible conduct (statutes are usually very broad, rules narrow it down)
- Lowers the transaction cost of adjudication
- Fewer ALJ mistakes
What is a legislative rule?
A regulation or policy decision that adds to or substantially changes legal requirements on the regulated parties. It has force of law (legally binding)
What is the main disadvantage of LRs?
They permit over/under inclusion (but there is usually discretion for the ALJ to make an exception)
Where does an agency get the authority to issue legislative rules?
General rule making authority will be presumed to permit legislative rules (Petroleum Refiners)
What did the holding from Heckler v. Campbell say?
Says an agency may issue a rule to truncate the issues available at adjudication.
An agency can use rule making to clarify issues that do not need to be determined on a case-by-case basis. A party’s rights to a hearing may be truncated to a hearing limited by valid legislative rules
What three cases form the rule that where an agency has the authorization, it can promulgate legislative rules instead of adjudicating all issues?
Heckler v. Campbell (grid OK) Petroleum Refiners (presumptive deference to agency) Air Line Pilots v. Quesada (agency can avoid adjudication w a rule)
What is the four prong test came from the Intent to Bind test from the American Mining case and what does it show if the answer to any of the four questions is yes?
The Four Prong Test to differentiate between interpretative and legislative rules:
- Whether, in the absence of the rule, there would not be a legislative basis for enforcing the action or other agency action to give benefits or to ensure the performance of duties
- Whether the agency has published the rule
- Whether the agency has explicitly invoked its general legislative authority when issuing the rule
- Whether the rule effectively amends a prior legislative rule.
