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Administrative Law Outline
Non-delegation: agencies have to be lawfully delegated (supreme court has only struck down a delegation of power twice) court can't make statements of social policy (given that congress is incapable of setting clear standards) new deal legislation was usually too broad
Exceptions (intelligible principle or pattern from similar legislation to follow and principles of accountability) à could be giving the president too much power over certain constituencies over others Old view: Primary Standard: There can be implied standard (e. g. in some cases the court will look to the intent) New view: Intelligible principle (can be vague, would like American producers to be able to compete with foreign producers at least on the American Market) Usually needs to be a particular delegation to a particular agency Congress has a right to make a law, which allows the President to do things if a certain contingency came about (Congress didn't really delegate to the President the power to make a law)
Can't delegate outside of where there are controverted areas of policy or opinion: (in the original case there was no indication of what the president should do) Dissent: If Congress identifies something that needs to be done, and an area for delegation than delegation may be possible
President can't delegate away from himself
If the statute gives too much power: Should be construed so as to avoid too many constitutional questions -- including whether or not the president had been given the right statutory guidance Delegation of power is unconstitutional if too vague to permit a reviewing court to determine whether the agency had acted beyond the scope of its power
Cost-benefit analysis: (to the extend feasible) – agency must look to whether the statute is zero-risk statute: (agency must make connection if it is vague) Majority: court will sidestep the validity of a cost-benefit analysis Concurrence: statute should be struck down, or sent back if statute vague dissent: court should avoid setting social policy
no delegation of public functions to private individuals even a contract that binds one company by an action of another company is a delegation no power to create a fine can be delegated (but the definitions of the criminal behavior can be delegated) power to tax can't be delegated difference between taxes and fees: (agencies can be fiscally self-sustaining) was there a valid delegation to the initial agency can be valid, if it was just a fee (fee is something that is based on the services returned)
two steps questions whether the delegation was valid need to have some paraphrasing of statutory language)
whether the agency acted ultra vires (things can be a valid delegation, but still ultra vires) there could be a mathematical relationship that would make it not a tax: e. g. not within the power of the state department to deny passports, or using the draft for punishing war protesters
vagueness (not really delegation): can look to history of interpretation of word (defines whether a delegation of rulemaking or adjudication) if it is so vague, it may really be a delegation of adjudicative power, and not legislative power
prohibition of legislative vetos: (Committees are part of congress, but they are not under the APA) Congress does have the power to investigate and hold people up to public scrutiny There is executive privilege (if they are purely an arm of the executive branch) Power to advise and consent is basically limted to appointment itself Sunset clause: limits the life of an administrative agency (absolute or conditional) Congress can control the purse strings? Can do this very indirectly (and increase and decrease diligence of agencies)
President can control the personnel of an agency especially when making interim appointments, and it gives the president some power over the agency
Congress can't taketh back what they giveth away bicameralism required and presentment (note: in Chadda, there was no debate or recording of the voice vote à but it was implied to be a legislative action) concurrence in Chadda says that the congress was acting as a court, as was its language (and hence, the congress was being adjudicator) dissent in Chadda says that there can be a legislative veto retained in a delegation
Chadda does say that Congress can force agencies to institute a "report and wait" – the agency has to report to Congress the rules, for Congress to review Contract with America: Rules have to be submitted to congress and the GAO (for CBA) Major rules: GAO is required to submit a report to Congress in 15 days There is now a delayed effective date of 60 days from federal register or report from GAO If Congress passes a joint resolution, and tries to override a rule, courts are not supposed to take this effort into account
Legislature can't imbed legislative functions inside executive branch (removal power) may be an indication of who is controlling an official in Bowsher -- will look to statute and to the function of the agency (e. g. allowing the president to fire its officers would give him the power to influence the agency) Can't have the Senate appoint Officers (only really heads of agencies) special prosecutors are not officers (treated like an independent agency which results from negotiation, yet appointed by president, to do legislative work) courts can appoint officers
inferior officers can be appointed by non-president (e. g. tax court judges) nothing in constitution regulates how employees have to be appointed)
Formalistic (majority) seperation of powers approach subordinate officials can't be subject to approval of senate. Removal of officials for non-illegal activities can't be left with congress Concurrence: it is possible to have obligations to two branches at once, and Congressional removal of the comptroller would be veto power Dissent: these problems can be worked out during the legislative process
Modern view: can have the president restrict if the terms of a appointee (e. g. special prosecutor) was the result of negotiations between president and senate, and doesn't restrict the president
Removal for political reasons (Executive functions that are not exclusive in the domain of the president (as per the constitution) cannot fired by president for non-cause reasons) If the officer does not use the power that is vested in the president by the constitution, than the president cannot remove for political reasons (e. g. FTC is a quasi-legislative and quasi-judicial) President doesn't need to have a reason to fire people in an "executive branch agency"
Independent agencies there needs to be cause They maybe should be thought of as arms of the legislative branch (e. g. they fulfill legislative dictates)
Reorganizational powers President has the power to, in the face of certain statutes reorganize an agency to make a certain person chair (e. g. FCC)
Congressional restrictions on executive power to remove (e. g. independent counsel) One view is that there is bargaining that goes on between the president and congress Court will read the statute in a way that is constitutional Real question is whether the removal restrictions are of such a nature that they impede the president's ability to perform his constitutional duty and the functions of the official must be analyzed in that light à majority used what the minority called a balancing test In fact, the balancing test may be deferring to a bargaining that went on during the lawmaking processing when the law was passed
Dual role of judges in executive and in judicial branch will not be considered to be a compromising position -- if a functional view is taken, it doesn't matter where the commissions physically sit Independent counsels are exercising purely executive functions, but they cannot be dismissed by the president Scalia (by himself): independent counsel is unconstitutional
Executive review Clinton executive order draws distinction between important an unimportant executive orders Reagan If OMB was dissatisfied with the OMB in rulemaking, the OMB could leverage agency President controls this – and its stays there until it is certified that the president would get past this By requiring the preparation of economic impact reports, the president imposed a set of other requirements
12291 never applied to independent agencies (some followed voluntarily)
Clinton: 12291 has a more flexible notion of costs and benefits, OIRA reviews Can take into account more qualitative Vice president has greater role
Reagan and Bush orders required CBA for anything
Formalistic view of legislative usurpation: Even if there is a delegation of power, if it is the legislature aberrantly acting as an executive it will be struck down
Creation and maintenance of Rights Congress can create new rights – and the adjudication of rights can be given to an agency (e. g. workmen's comp) (common law) Old law (Crowell) was based on distinction between public and private rights Adjudication of rights (e. g. acting as courts): distinction of public v. Private rights is less and less Public is defined as which arises between government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments Private is defined as rights between citizens
Inquiry into reassignment of jurisdiction three means to allocate judicial power purposes underlying the constitution's allocation of judicial power to article 3 courts how consistent with these powers is reallocation to agencies should the courts acquiesce to legislative choice
Schor test to determine whether or not the delegation is proper Particularized area of the law Is there judicial review? Public rights v. Private rights are a non-dispositive factor? efficiency is it an independent agency – executive branch agencies can't adjudicate consent of parties
If the agency's jurisdiction is narrow than it adjudicate private rights that were pre-existing given a transactional relationship to a congressionally created right
If there is an opportunity for the petitioner to chose the form his is filing in,, he can waive that in federal court -- and hence waive a right to a jury appellate review isn't enough Background: Congress can't give away power to adjudicate common law rights to non-article 3 judges Old exceptions to constitutional rights to courts in article III Military Territorial Public rights (government v. private party) Public rights can deal with private parties
Transference of rights Pre-existing private right can't be moved around (bankruptcy) If congress created the private right it can be moved around Public rights (can only sue the state when it permits it to) à can be adjudicated wherever If it was a public right that congress had created, congress can decide where it wants the issues to be adjudicated
If the right was created statutorily and not under the common law (e. g. NLRB) than it is possible to avoid adjudication via juries (e. g. the amendment is no applicable to new causes of action) Old rule: if the right to a jury trial existed in 1791 than jury trial right is preserved Inquiry centers on the identity of the form Equity, admiralty, and military courts operated without juries
New rule: if the quality of the action is similar to a common law action than the right is preserved 7th amendment is inapplicable when congress assigned public rights to agencies wholly private, tort, etc. Are not implicated needs statute needs new right needs to be public right
one only gets a jury trial in a common law action (e. g. not equitable or injunction)
if congress transfers a matter which used to be subject to the 7th amendment to an agency, the very act becomes a public right free of the 7th amendment -- argument is that this is the "same remedy in a new form" but, there is no chance that congress can eliminate 7th amendment rights by transferring civil actions en mass to agencies
congress can create remedies that are analogous to common law action and place them beyond the 7th amendment and put them in a place were jury trials are unavailable – but the supreme court still hasn't answered the question of whether an agency can hold a jury trial this will come up where there are private parties on both sides
criminal matters are right out can be administrative power to detain or to quarantine hard to tell the difference between a criminal sanction and a civil penalty look to the language used by the statute that delegated the power look at the language of what the statute calls the penalty
If there is a concurrent jurisdiction of the common law courts, the agency can't really hear it (if there is a jury demand) If a court has to enforce the order of an agency, where there is a jury trial requirement for that remedy, the court has to hold a jury trial
There can be minimal infringement of article III if this is given to an ALJ Note: ALJs are not subject to the same protections as federal judges
Courts can still act as a check on the agencies should they be adjudicating too much (e. g. court will uphold a right of a company to go out of business)
Functional v. Formal Functional: asks what the purpose of the branches of government is Formal analyses tends to restrict the powers that congress can delegate
information gathering agencies can inspect (need statutory authority): can say that if no criminal sanctions are possible, than no warrant required 4th amendment limits unreasonable searches and requires a warrant usually need a warrant can get a general warrant (doesn't need to have individualized suspicion) – e. g. searching every 11th business
warrentless requirements need a pervasively regulated industry can be an industry that wasn't previously held to be pervasively regulated all that is required is record keeping
need a statute that authorizes the search (statute is substitute for the warrant) can't be false motive – but needs to be have at least some genuine search for a regulatory violation remedies generally illegally taken evidence can't be taken – but there is no supreme court authority on point
reporting and record-keeping needs to be statutory authority official curiosity (doesn't need to be a strong reason) can't be too burdensome can't claim fifth amendment can claim fifth amendment if it could later be a fifth amendment issue
agency publicity: little that can be done to resist agency publicity no one has a liberty interest in their reputation
can require records subpoenas : specifics can always narrow what an agency can do testimony hard to resist can be things that the agency is seeking in connection with something that it does have jurisdiction
can object to specific questions
documents has to somehow be relevant to the subject matter of the proceeding same standards as record keeping can be no fifth amendment if one is required to keep them
need statutory authorization need a fair showing of relevance can't be outrageously burdensome same privilege fifth amendment privilege – as there can be criminal exposure if the documents along are incriminating it isn't enough implicit statement authenticate existence show possession the fifth amendment applies only to acts of production
corporations don't have a fifth amendment privilege
agencies can draw a negative inference from invocation of the fifth amendment could be immunity on the criminal side, which forces people to testify
always have the right to have an attorney present
Sources for formulation procedure of agency: Note: INS has been excluded from the APA by statute, but is still subject to constitutional requirements Basic sources of procedural requirements Organic statute Procedural regulations APA requirements – § 551 Everything that exercises authority of the US government Definitions of agencies (exclusions – what doesn't count as an agency) – Congressional committees Courts Governments of territories or possessions DC government Military courts President
Federally created common law Government interest May be a government interest in keeping people off welfare roles, rather than dismissing them for any reason once a property interest is conferred by the legislature, it can't be deprived without due process, and due process is defined by the constitution
constitutional procedural due process: sets a minimum on the amount of process that agencies can provide only applies to governmental actions only applies to individualized actions: action has to be directed at a small number of people questions of "who, what where and why" and what a court would decide (see creation of property rights)
generalized actions: involves legislative facts (kinds of facts a legislature would take into account) e. g. a court couldn't decide "how much more tax revenue would a city need?"
e. g. can modify a license, without due process, so long as it is a class of people, and it applies to the future
protected interests -- they have to be taken away deliberately Liberty interest Fundamental liberty interest (in the constitution, or supreme court says it is fundamental) – do not need to find a right under state law Speech (agency can't take away without due process) Voting (agency can't take away without due process) Privacy (agency can't take away without due process)
Massive disruption of fundamental liberty interests E. g. being sent to a mental hospital convictions extinguish liberty interests transfers to a solitary confinement situation do not involve a deprivation of liberty
Under Paren Patria, it might be that the court can act in the favor of the children
state created liberty interests (non-fundamental liberty interests) where we look to state law, agency regulations or non-fundamental liberty interests) a liberty interest created in a statute, (even for parolees) is protectible by due process do not have a liberty interest in the prison setting unless it is an atypical and significant hardship
have to inquire into whether or not the statue uses "must" or other liberty-granting words where they take away discretion, there is an interest
Property rights -- not to be distinguished with civil rights: Court will not impose due process requirements to take the place of civil rights actions post-facto -- property interests are always dependent on something that is expressed in state law Taking away new property requires a hearing (government jobs, social security, rights as a government contractor) If a new property is subject to a non-adjudicator decision, such decision is not subject to due process One judges new property by the rights given at its creation: has to be objective (e. g. more than just unilateral expectation, an entitlement) Ten-day suspension from public school is an example of abridgment of property rights
There are no liberty interests in injuries to To reputation: If the damages come about without due process, than merely tort damages are not enough: must be a "stigma plus" Transfer to a mental hospital can be stigmatic Need to have more than just a loss of job Making it hard to get any job (especially under a state law) is indeed a liberty interest (happened to be looking for employment in field where she was blackballed) Stigma plus can never be satisfied unless there is not only a stigma, but an additional anticipated (by all parties) detriment (also has to be something that prevents someone from doing something (e. g. buying liquor))
Property rights: If a property interest was created by the legislature and then taken away, its effect on a person will be deemed to not be an effect on individuals Licensing Government disability insurance Public utilities Reliance on the continuing benefit is objectively reasonable, one is entitled to a hearing on it -- this isn't subjective reasoning
Creation of property rights vis-à-vis other members of society (ie overall tax increases) Even if there is only one member of an effected class, if it is taken away effecting everyone than it is okay
Apportionment of costs requires a hearing (e. g. effect of party on individual grounds) Small classes: not the taking away of an overall property right
Process requirements Overall tax increases do not require hearings taking away of a right requires a hearing
If property is created by a statute, than you can't separate the restrictions on the property that the statute might have (bitter with sweet) Once property exists, there needs to be due process Litigant must accept limitations on the property right (administrative procedures by which the employees are determined)
Could be a property interest if an agency granting a license can only grant on license – so those who stand to lose have a right to be at the hearing
Procedures on their own do not create an interest
Amounts of process an agency can provide substance of process overall factors according to Justice Friendly unbiased tribunal (also burden on the government) notices of proposed actions opportunity to present reasons right to present evidence right to know opposing evidence right to cross-examine witnesses decisions based exclusively on the evidence presented right to counsel requirement that the tribunal prepare a record of the evidence presented requirement that the tribunal prepare findings of fact and reason in writing
balancing test of the current law for the floor of procedure nature of the private interest e. g. there is a difference between "dire need" in welfare and social security
risk to that interest posed by a challenged procedure and the likelihood that a different procedure would better protect that interest if something is an easy question of fact, (e. g. medical determination), a post deprivation hearing is okay whistle-blowing might be given deference as it is necessary to reduce whistle-blowing possibilities
burden on the government it can be unrealistic to say that the government can sue to get the money back
equation increased assurance from additional procedure * interest of claimant > increased burden on government examples welfare requires advanced hearing because of high risk disability does not require hearing because of a lower risk the longer school suspension, the more process needed procedures the school went though are given deference no financial interests allowed if the legislature was the source of the property interest (e. g. Medicare claims, they had the total discretion) toll-free hearing system may be adequate arrest can be an objective, reasonable means for suspension limitation on fee to attorney is constitutional
adequacy of post-deprivation remedies paddling requires no pre-penalty hearing, but tort or 1983 claims can be made random and unauthorized actions don't require a hearing pre-reinstatement: some procedures opportunity to present, and evaluate evidence, and cross-examine people
some say that cross-examination is a critical element Procedures for loss of benefit Notice (may be from due process) Cross-examination Counsel (government doesn't have to pay for the lawyer) Oral presentation Neutral decision maker Norm is pre-termination, and burden is on government to prove why they need to do something Having to pay benefits for a few months is not problem
Agency justification for decisions
Judicially defined constitutional requirements
General philosophy for rulemaking (§ 551-5) one has a rule when it applies to class of person for future effect – it is like rulemaking, so it is very hard to show that they have an unalterable closed mind Requirement of rulemaking: not unconstitutional to base something on something too vague (e. g. disent by in Schecter – if the problem is identified and there is accoutability) Actual notice can take the place of publication – but not in all states Government has to be bound by standards Effected people need to know what the standards are Courts cannot require the agencies to follow additional procedures that are not in the APA However, there could be certain instances that are extremely compelling, that additional procedures could be required (e. g. a very small number of person would be "exceptionally affected" by a proposed rule) -- individualized facts might be at issue Note: applying statutory terms to a set of facts, will be regarded as a type of decision of law – and statutory interpretation will be done by the agency for the sake of uniformity (or that the NLRB was experts) But, when a pure question of statutory interpretation is present, the court must use the traditional tools of statutory interpretation
Notice and comment rulemaking is required if it is a fundamental change E. g. different subject
Regulation can't violation constitution (e. g. content-based sliding, capped scale on demonstrations) Two principles Treat similar people the same Treat different people differently
Vagueness, when effecting a constitutional right, can be unconstitutional Government needs to have some standards in assigning licenses;' Systems that are vague and encourage political favoritism can be unconstitutional (meaning that there is a right to a hearing) Random standards are OK Regulation can be a substitute for a case-by-case discretionary analysis (if discretion is granted, regulation can still be made, and no discretion used) Minority: requires the case by determinations
Unfunded mandate reform act Unless prohibited by law, agencies before promulgating a proposed or a final rule that includes a federal mandate that may result in the expenditure by state, local or tribal government of more than $100 must have a statement that includes a Enabling statute (organic act of the agency) CBA Consideration of disproportionate effects of the mandate on different parts of the country or communities Estimate of the mandate's effect on the national economy Description of the agency's consultation with local official
Courts an force an agency is make statement can be grounds for enjoining Failure to make such a statement
Agency is bound by its legislative rules until it changes them Agencies only need to follow their own rules when enforcing or applying their own rules – so other agencies or cases not under agency direction don't count
Agency must provide basis for action If grounds are inadequate or improper, court must reverse -- even if there is a ground supporting it, the court won't imply that grounds The court will show deference
Chenery1: agency must show reasoning (not equity) Chenery2: agency can decide to decide everything on the basis of adjudication, if it wants
Agency Procedures choices of rulemaking or adjudication definitions 551: adjudication: agency process for an order an order is anything that is not a rule-making
adjudication apply to specific named persons if something is a rulemaking, but it is specific enough, it has to have due process like adjudication
record court will make the presumption that an agency has a legislative power, and is engaged in rulemaking, for fairness sake -- court will allow agency to make "informed discretion" in their choice of rulemaking or adjudication agencies will be given the power that it seems that congress had assigned it agencies are bound by their own rules
if the language of the statute itself already had a way of dealing with the problem, than no other implications will be made
Rulemaking -- because of the power and convenience of rulemaking, courts imply the power to make substantive, not just procedural rules Notes on rulemaking ratemaking is rulemaking, but it is of particular applicability (note: there are never any internal ex-parte restrictions in rulemaking) but can't use the adjudicatory process to make a rule (e. g. in adjudication can't make decision that applies only in the future) agency can use its "informed discretion" as to whether to make a rule or adjudicate may or may not be an abuse of discretion to make the wrong choice
In general, agencies can't be forced to make rules (could decide whether to work out the problem on a case by case basis) Might be required to make a rule, if the decision reversed a long-standing policy § 553e: One can petition to have a rule made
Formal – (rarely required) – usually the statutes just say "public hearing" no formal requirements where it applies to an entire super-class "hearing" can be defined to be just a hearing on paper the criteria for a hearing and process would be what triggers a hearing hearing can mean different things
could streamline into all evidence, rulings and decision made available to parties ability to be heard objection opportunity
Informal rulemaking §553 (exemptions for military, feign affairs, agency management, personal, loans, grants, contracts, public property - no public procedure necessary) requirements needs to be in the federal register § 553a announcement of proposed rulemaking has to be in federal register time, place and nature of rules legal authorization terms or substance of the subject that are involved in the rule
in the case of "substantive" rules, that they won't become effective for 30 days do not need 30 day restriction for relief of restriction interpretive and procedural rules don't count exception for unforeseeable emergencies do not need to have delay for interpretive rules or statements of general policy emergency rules – for good cause, the agency can get around the 30 day requirement "interim final rule" is defined as a rule made under the emergency provision, but the agency later decides to take comments
opportunity for interested persons to be heard: "interested person may appear so long as the orderly conduct of business permits" (usually just on papers) prejudice isn't determined by the rule, but by a lack of opportunity to comment (even if it is a favorable rule) later appearance of executive or legislative documents won't be held to be prejudicial courts have suggested that "limited cross examination" is a way to deal with disputed technical issues
formalizing rules as to informal formal hearings sucked judges can't add to the procedures required by the APA. courts can't make a agency follow non-APA hearings (notice of disclosure of facts could be held not to be a question of hearing but of notice itself) minority view: can still interpret the statute to impose requirements -- only when interpreting the organic statute
§ 553c: concise general statement of basis and purpose agency regulation, can however, be defective if there is no discussion of the basis and purpose of the rule -- e. g. there is such a thing as being too concide some courts say this needs to be very detailed no need to respond to every comment can't switch rationales
court will presume the existence of facts to support (so no requirement of a record) and no rational basis review (needs to have a plausible relationship to any permissible goal)
hybrid rulemaking: if the enabling statutes, or regulations, or agency whim -- could be required by due process only if this is an individualized action (if there is a property or liberty interest) – checking the Matthew's balancing test can require public hearing or cross examination courts have no authority to imply additional procedural requirements note: under the Ventilation doctrine which required airing of issues, courts implied more procedure. Courts need to cite additional sources of law that would grant other procedures
Still constitutional requirement (e. g. in rate-making) Vermont Yankee hints that there May be requirement if the agency goes against its practice
informal notice and comment rule-making (end-run around possibility of a hard-look by courts): exceptions for opportunities to be heart by informal notice and comment rulemaking: even within the exceptions, the public needs to be kept informed procedural rules: actions that do not alter the rights or interests of parities inquiry is made into what the real effect on the regulated industry is even the manner at which people are paid if procedure effects the right to an adjudication, the rules are therefore, functionally substantive dissent: everything becomes substantive
interpretive rules (descriptive and prescriptive activities of agencies) – note it may be that an interpretive rule by an agency head is binding descriptive: by example (by reminding) by not going through notice and comment rulemaking, a rule, can be interpretive and enforcement of it is, hence not binding new requirement heretofore nonexistent, is not interpretive so long as there is discretion it is not a true rule, but an interpretive rule if an agency acts as if a discretionary interpretive rule (e. g. balancing test) is really a strict rule, it will be deemed not to be a interpretive rule four-pronged test of American Mining Congress (if any true than not interpretive) whether in the absence of a rule there would be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure performance of duties whether the agency has published the rule in the CFR whether the agency has explicitly invoked its general legislative authority whether the rule effectively amends a prior legislative rule
a policy is only a statement of the administrative agency's intent – look to see if the agency had the legal effect interpretation of prior substantive regulations: once a rule is made by notice and comment, than the agency can't turn and vitiate it by interpretation interpretations can't have substantive effect, and determination is by functional analyses. E. g. : can't broadened effect Adoption of accounting standards is still interpretive
Interpretations of law (including foreign law) by agency will be given deference, even if they conflict with prior rulings (even if they relied on the law wrong) Interpretations should be either of a specific statutory provisions, or explained how they follow from an existing regulations that was adopted from notice and comment Interpretive letters are non-binding arbitration could be employed, provided no serious policy issues and the jurisdictional facts are in line
general statement's of policy (no definition under APA) inquiry into what the agency will do, and the effect it has on people can't change people's existing rights or obligations have to make showing as to how rights are being effected agencies, if they treat previous actions as being significant and not interpretive, can fall outside purely general statements of policy
rules of agency organization, procedure or practice when it is against public interest if would price panic, or the very act would vitiate the rule, an exception can be made.
don't need oral arguments (e. g. trusts agency's judgment)
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