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Barron - Administrative Law Outline - Spring 2007

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					Barron, Admin, Spring 2007
Grade: A-
INTRO

James Freeman (pg 29) Crisis and Legitimacy
   - Four principle sources of legitimacy
          o Public recognition
          o Public perception of accountability
          o Effective performance
          o Public perception of fair procedures

Threshold question with all admin agencies?
   - None created by Constitution
          o Some are contemplated though
                   State Dept. (ambassadors mentioned)
                   Military (Pres as commander in chief)
   - Way all agencies get their power is by statutory delegation

Landis
   - Came at the world when you had the recent development of huge corporate firms
          o Large-scale bureaucracies in and of themselves
   - Idea of lets produce government institutions that mimic in form private
       organization and decisions

Rabin
   - Market failures, Gov. steps in to regulate those failures
   - Changes in New Deal period to go to market stabilization and market structure
         o Brings in greater concern about powers of these agencies
                 Fourth Branch concerns in 1940s
                 WWII expansion of Government
                 Worry about totalitarian state
         o Employer/Insurer of last resort idea
   - These concerns produce Administrative Procedure Act that we have now
         o Russia and China are borrowing from this heavily now
   - No coherent picture of federal administrative structure eventually get
      implemented
         o Admin law is often the response to various crisis, not a full-blown plan

Things to think about these actors in general

Federal Judges                 Reactive
                               Passive
                               Independent
                               Apolitical
                               Generalists/No expertise
                               Narrow legal
                               Reason giving
                               Helps see more general relationships between things
Barron, Admin, Spring 2007
Grade: A-
                                  -   Not narrowly focused like urinary tract infection
                                      guy
State + Local Governments Closer to issue/Capacity to engage with actors
                                  - Nothing participatory about the local issues just
                                      boring
                              Flexibility
                              Differentiation in resources
                              Jurisdictional reach being limited
                              Parochial: Competition versus cooperation
                              Partial capture
                              Local knowledge more important than training
Congress                      Time constraints
                              Uniformity
                              Active, not just reactive
                              Resources
                              Biggest Picture
                              Can’t do anything – Gridlock
                              Multi-member
                              Democratic
                              Locked-in
President                     One perspective – myopic
                              Flexible
                              Quick acting, energy, fast
                              No time
                              Not accountable – not participatory
                              Pushed towards big things – expectations about role
                              Agenda-setter
Agencies                      Expert in an area
                              Specialized
                              Information (Scientific)
                              Less accountable to the people
                              Insulated
                              Policymaking – ideas of the good - ideology
                              Bureaucrats
                              Paperwork/red-tape
                              Losers
                              Non-transparent/hidden/less visible
Special Things About Agencies
    - Specific knowledge
    - Capacity to be pro-active
           o Enough so it worries many people
    - Bureaucratic vision of agency (place of losers)
           o Slow, voluminous, etc.

New Bush executive order from NY Times
  - put political actor tied to WH in every agency
Barron, Admin, Spring 2007
Grade: A-


DELEGATION/CONSTUTITIONALITY of Administrative State Structure


Usually delegation is to an agency established by statute not to President directly
   - Could be done to president directly but isn’t

Delegation Policy
   - Avoids HUGE wait times with Legislation
   - Political credit-taking of vague delegation bills
          o Good to get close to
          o Good if want to bash
   - Think of where you want to delegate to
          o How you conceive of statute
          o Internal reason for delegating (committee assignments, etc)
   - No delegation implied by vesting of all legislative powers in Congress
          o Article II vests executive power in President
                   Argument that giving the President legislative powers is foreclosed
                     by his vesting in executive powers
   - But necessary and proper clause contemplates “departments or officers” to be
       executing powers
          o Argue this is rather strong form of allowing delegation
   - The point of delegating voting in the Senate for example
          o This is why the non-delegation doctrine exists
                   It’s a series of attempts to handle this problem
Delegation Theories
   - Contingency theory
          o Congress establishes a law that isn’t triggered until President or someone
              determines a trigger has been met
          o Counter-argument: huge amount of discretion in judgments being made
          o How basic a determination being made is involved in this judgment
   - Just Filling Up the Details Theory
          o Grimoe (Upholds details theory)
                   Secretary of the Interior allowed to do things on public lands to
                     prevent fires – he prohibits some grazing
          o Wayman v. Souther (Upholds details theory)
                   Gave power to Courts rules to provide judicial process
   - Intelligible Principle Theory
          o The one that survived and still have some force
          o Must contain some principle that’s intelligible so the agency can be
              determined to have violated it
          o Keeps some policy-decisions from agency
          o Makes sure in theory that the most important decisions and fundamental
              questions are reserved to the Congress
          o Hampton (upholds)
                   Delegates authority to set tariffs themselves
Barron, Admin, Spring 2007
Grade: A-
          o topic of regulation
                 Could be violated
                 But doesn’t mean anything given to topics/regulation
                 Still upheld
                         But anxiety about this fact

   Only cases to say violates delegation are these three, no others:
          o All at beginging of new deal, 1930s Panama Refining, Carter Coal &
              Schecter Poultry
                   Schecter Poultry also looks like a delegation to private industry
                   Carter Coal has a similar problem

Benzene
   - OSHA gets the delegation by statute from Congress
   - Regulation in place already saying you have to go under 10ppm
   - New regulation issued saying you to go down to 1ppm
   - Agency acting according to 3(8) and 6(b)(5)
        o 3(8) (Barron summary)
                Standard which requires practices reasonably necessary or
                    appropriate to provide safe employment places
        o 6(b)(5) (Barron summary)
                Most adequately assures, to the extent feasible, on basis of best
                    evidence, that no employee will suffer material impairment as a
                    result of exposure

Two possibilities of Constitution on legislative power
  - Legislative power just starts with Congress, can give to other people
          o Strong reading almost suggests no limitation
  - Argument what’s being delegated is not legislative power, just executive power
          o Yes some discretion and policy-making but that’s just a matter of degree

The modern test intelligible principle test
   - Since the three at beginning of new deal, tons have been upheld
         o FCC statute just says has to act in public interest
                   Upheld to be intelligible principle

Strauss except
    - Look at it never striking anything down you miss something
    - Yet agency lawyers and Congressional lawyers shows a desire to have statutes
       cabining or checking what’s involved

Benzene (pg 58)
- Posing a non-delegation issue but saved through narrow construction of statute
   - OSHA gets the delegation by statute from Congress
   - Regulation in place already saying you have to go under 10ppm
   - New regulation issued saying you to go down to 1ppm
Barron, Admin, Spring 2007
Grade: A-
   -   Agency acting according to 3(8) and 6(b)(5)
           o 3(8) (Barron summary)
                     Standard which requires practices reasonably necessary or
                        appropriate to provide safe employment places
           o 6(b)(5) (Barron summary)
                     Most adequately assures, to the extent feasible, on basis of best
                        evidence, that no employee will suffer material impairment as a
                        result of exposure
   -   Fact situation
           o Originally Benzene set at 10ppm
   -   Within agency there’s a scientific think-tank NIOSH
           o Has expert views, don’t have to be listened to, but there to give advice and
                information
   -   At first tried to do it as emergency standard (no public notice/comment needed)
           o 5th Circuit says for this kind of rule need to go through normal channels
   -   So they do go through normal channels for the 1ppm standard
   -   Carcinogen
   -   Have policy presumption that any Carcinogen maybe unsafe
   -   So say its unsafe
   -   But don’t want to put it any lower because the industry might collapse if they put
       the standard any lower
           o Either can’t do it
           o Or would be economically impossible to do it
   -   Cost-benefit analysis would be different than industry going under limit
           o Must gives economic values to cost industry would have to bear
           o And how much the lives are worth
           o Allowed to regulate when benefits exceed the costs
                     And can only do it when benefits exceed costs
   -   Also idea of agency doing one step at a time
           o Can do part then part later? Does that work?
   -   Stevens Invalidates Rule
           o Have to show workplace is unsafe
                     Just showing there’s a carcinogen floating around isn’t enough
                     Stevens says you have no evidence of benzene being dangerous
                        at 10ppm levels
           o Uses non-delegation doctrine to bolster argument of need to impose
                significant risk standard on the agency
                     Stevens checks the discretion by essentially invalidating the no
                        carcinogen rule
   -   Rehnquist Concurrence
           o Says there was no plainly adopted significant risk test or cost-benefit test
                or regulate till they go under test – Congress never made the choice
           o Congress has punted on the choice itself, not just filling up details, and
                that Congress can’t do
           o (Barron: in a weird way Rehnquist concern is the Court deciding this
                because Congress never developed the non-delegation principle)
Barron, Admin, Spring 2007
Grade: A-
   -   Stevens concern is about cabining the agency (Court can make up standard),
       Rehnquist is more concerned with making Congress make the choice!!!!!!!

American Trucking
  - Post-Chevron unlike Benzene
  - DC Circuit American Trucking
          o No reasonable intelligible principle apparent from statute
          o EPA needs to find a principle or get Congressional Authorization
          o Dissent: EPA gave rational reasons for level it selected
                 Political pressure on Congress from States
          o EPA issuing a rule
                 Based on research of clean-air advisory people
          o Looked at
                 Severity of the effect
                 Certainty of the effect
                 Size of the population
          o Says “requisite to the public health” in statute
                 Does this mean don’t even stop if it’s not feasible?
                 Might say this has to be somehow related to man-made things
                         Court says that could be reasonable but you didn’t really
                            say that – Court being picky
                 significant difference in type of health effects that would result
                    from regulation
                         Difference between transient and reversible health effects
                            and permanent ones
                                 o Again Court says didn’t really say that
          o So if agency had done this on
                 Scientific data
                 Difference between transient/reversible health effects and
                    permanent
                 Background level
          o How would agency identifying its own criteria solves its delegation
             problem?
                 This is about Rule of Law notions
                 Some standard guiding your discretion that’s announced upfront
                 (Idea that if the agency is selecting the intelligible principle it’s not
                    there in the first place from Congress – yet still okay? Yes.)
  - Supreme Court American Trucking
          o If they’ve selected an intelligible principle okay, if they haven’t bad
          o They have here!
          o But don’t want agency selecting intelligible principle
                 Makes this point but says its bad
                         (Idea that if the agency is selecting the intelligible principle
                            it’s not there in the first place from Congress – yet still
                            okay?) NOT OKAY
                 So have to say principle is there in the first place
Barron, Admin, Spring 2007
Grade: A-
             o Not an affirmative sentence in the opinion about why “requisite health”
               should be there to satisfy non-delegation reasons
             o But pretty much seems to say this is like every other cases (which he
               recites) that uphold other very broad delegations
             o Stevens Dissent on legislative power delegation being okay

Smaller Cases
  - Mistretta (pg74)(US 1989)
          o Upholds Judges on Judicial sentencing commission
          o Doesn’t think Judges will comport their actions to get appointment to
              sentencing commission
  - Touby (pg 76)(US 1991)
          o Attorney General’s power to determine drug scheduling with criminal
              penalties is okay with intelligible principle. Even if you required more in
              criminal context this would pass it
  - Loving (US 1996)(pg 76)
          o Soldier under death sentence can be put to death by executive under
              delegation of commander-in-chief role


Formalism                Very distinct boxes of three branches (textualist of vesting
                         clauses)
Functionalism            Rejection of separate boxes – look at purposes what powers are
                         given to each branch – is it realistic to think to exercise that
                         function you wouldn’t run in to another branch
Originalism              What did framers understand division of power to be circa 1789
Living Constitution      What went on in 1789 bears no relationship to modern world of
                         today
Substance?               Is it consistent with ordered liberty?
                                          (a) Ordered liberty (Rebecca Brown): determine
                                              whether the new arrangement prevents
                                              individual liberty protection
                                          (b) Protection of property rights (Geoff Miller):
                                              does the new set of arrangements pose a threat
                                              to property rights

Lawson
   - Administrative State is unconstitutional
        o They wanted separation of 1, 2 and 3 – textual separation
   - Seems Mad about what’s happened
        o Goodness and Niceness Commission example
   - Formalist
        o Compares vesting clauses
   - Originalist
        o Cites Federalist
Barron, Admin, Spring 2007
Grade: A-
Ackerman
   - New Deal/1936 was a constitutional moment
   - Element of formalism to Ackerman’s account
         o Nothing here that says Lawson is wrong in his account of what founders
            would think
         o But says founders never would have tolerated this, who cares? New set of
            framers
         o Formalist in that there has to be an actual “amendment”, although not an
            actual amendment
                 Wants to formalize this process thought
                         In everyone’s face
                         Big vote behind it
   - Functionalism
         o Finds constitutional moment to reflect previous structure
         o Once all three branches stick – that’s what works
         o Argument that he might have said the founders were profoundly
            functionist
         o Living Constitution: Ackerman thinks Founders were functionalist: you
            pick the set of practices that works for the time you are in, but then you
            have a process to change them.

Strauss
    - Saying there will be always be a President, Congress, SCOTUS
            o But below them things are going to be mixed around
    - Administrative Agencies are an inferior fourth branch of government
    - Functionalist
    - Originalist in that kept top three hierarchy in tact
            o All this blending that you’re seeing today is what founders wanted – it’s
                continuous with the initial understanding
    - Substance in Strauss
            o Legitimate because value we’re trying to maximize is protection against
                tyranny – concentrated power
Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State (1992)(pg
78)
    - Barron didn’t mention in class but very interest on Agencies may be the only
        place to fulfill civic republican ideal of deliberative decision-making
    - They fall somewhere in-between extreme of political over-responsive Congress
        and over-insulated courts

Barron: No obvious mapping between formalism and critiques and the administrative
state and formalism/originalism and functionalism/living Constitution

Sabel/Dorf Reading
   - Starts with the substantive value it is trying to maximize (goal): synthesize two
       competing conceptions of democracy civic republicanism v. naked pluralism/self-
       interest politics.
Barron, Admin, Spring 2007
Grade: A-
   -   Democratic experimentalism through the administrative state is a way to do this:
       lots of room for agencies/state actors to come up with solutions to
       problems/gather information/rolling best practices
           o This is not the way the existing structure works! So this analysis is
                actually not trying to legitimize the current state, it is looking at what it
                should be! Not living constitution, but yet to be born constitutionalism.
           o From this perspective, the current administrative state is not
                legitimate! It does not fit this vision of mixing together civic
                republicanism and pluralism.
   -   Question is why don’t we have this type of state?
           o Functionalist: our administrative state could not keep up with the rapidly
                changing nature of society. So 1932 administrative state was a response to
                the huge corporate bureaucracies. But today these entities are a lot more
                flexible and different in nature. Therefore we need a new version of the
                administrative state.
           o New world demands devolving a lot of power to state and local agencies.
                Very different analysis than the other authors
   -   Barron
           o As obscure as the writing is, the question of whether this is the type of
                administrative state you want actually does capture people’s views (desire
                for a dynamic/flexible/able to solve problems and concern over the
                bureaucratic/slow/set-in-its-ways). This doesn’t usually get into the typical
                constitutional argumentation about the administrative state
   -   Oddly non-ideological cast – doesn’t really have political views opposed to each
       other in the historical story – people built administrative state to fit the evolution
       of the private market
   -   Barron had us read this piece to step back from internal debates about
       Administrative State and its constitutionality

Concerns about Branch’s Power Transfer
   - Abdication
          o You’re not living up to your constitutional obligation to make them your
             own
          o Self-checking quality to it
                  You have interest in retaining your own power
                  Rehnquist critique that Congress has very good reasons to abdicate
   - Encroachment
          o They had no say in the matter, another branch took their power away from
             them and gave it to someone else
   - Aggrandizement
          o One branch tries to take power from another branch and keep it to itself
          o Idea of doctrine that this is a common psychological state to take power
             for yourself
                  But idea that some other branch always has an interest in stopping
                    stealing power (this makes abdication the worst)
Barron, Admin, Spring 2007
Grade: A-
   -   Doctrine is must suspicious when it sees Aggrandizement, most deferential when
       it sees abdication, middling when it sees Encroachment

Difference between Article III Judges and Admin Judges
Article III judges
    - Tenure for life
    - Salaries cannot be diminished
    - Chosen in a certain way – President selects them with advice and consent of the
        Senate
             o High visibility
    - Not likely to be that many of them
    - Generalist
Administrative Judges
    - Civil servants protection – not political appointments like head of agency
    - Good cause appointment protection
    - However Agency at the top ultimately gets to decide the issue
             o Usually defers to ALJ (Administrative Law Judges)
    - Probably less of a generalist

Crowell v. Benson
   - Further you are towards Public side of the line – only constitutional review –
      further you are toward the Private side of the line – the further appellate
      review you have
   - 1932 Case – court first dealing with this
   - Facts
           o Longshoreman’s and Harbor Worker’s Act
           o US Employee Compensation Commission gave adjudicatory review
           o Article II court has complete reviewability of issue of law, more limited
              for issues of fact
   - Validates administrative adjudication
   - Sets up distinction between public rights and private rights
           o Public
                   Disputes between the gov. and people subject to that authority in
                      connection with performance with constitutional function of
                      executive or legislative
                           Don’t have to be an Article III court
           o Benefit argument (Greater includes the lesser argument)
                   That Government can do this just because it’s giving it benefits
                   Tax
                   Government employee
   - Concede special deals with constitutional rights
           o Private – one persons liability to another
                   Must have Article III courts
   - Weight of the evidence standard of review
           o not de novo review of the factual question
Barron, Admin, Spring 2007
Grade: A-
           o Consequence that for fact, not law, questions, agency administrator
               has a sort of binding power on the federal court
   -   This is still consistent with article III
   -   Idea that some of the evidence introduced in front of the ALJ would not be
       allowed in an article III court
           o Hearsay etc.
   -   Ideas
           o Greater Includes the Lessor
           o Prepolitical/common law
           o Sovereign Immunity
           o History or tradition
                     Historically we’ve had non-article III tribunals making these
                        decisions
   -   Argument why Agency decision-maker is similar to Jury/Special Master and
       you don’t need article III judge (“Adjunct Theory”)
           o But incentives are different for ALJ than Jury/Special Masters
           o Also Jury is mentioned in Article III
           o Article III judges are not bound by Special Masters report
                     Here the Judge is bound by some standard of review to the
                        ALJ – which he isn’t at all to the special master
   -   Key is that have to go to Article III Court to enforce the order

Further you are towards Public side of the line – only constitutional review – further you
are toward the Private side of the line – the further appellate review you have

Way system is set up, you get an order from agency needing payment
  - but to enforce award, you need to go to a Article III court, because they aren’t in
      contempt for just refuses to pay ALJ order

Northern Pipeline
   - 1982 Case
   - Northern Pipeline files for bankruptcy
   - Invalidates bankruptcy act and all bankruptcy judges
          o Not Article III judges, Article I judges
          o Decides this is all unconstitutional because these guys had been given
              way too much authority
                   Orders were treated as enforceable from the moment given
                   Reviewed under clear error standards
   - Opinion issue with this being over private and not public rights

CFTC v. Schor (pg 121)(US 1986)
  - Facts
         o CFTC regulates commodities
         o Schor claims he is injured by private commodities company violating a
             CFTC statute
Barron, Admin, Spring 2007
Grade: A-
          o Conti files in Article III court saying they didn’t violate anything with
               Schor and he owes them money (straight state contract claim – diversity
               jursidiction)
          o Schor says bring everything in front of the commission and we’ll all hear
               it together
                     Rules against Schor
                     At this point he challenges the constitutionality of the removed
                       state contract claim
   -   Question: Can the commission hear the removed state law contract claim
          o No one is challenging the constitutionality of hearing Schor’s original
               claim, it’s the removed state-law contract law claim
   -   List of factors Court says we have to look at
          o Are essential attributes of Article III courts reserved to Article III
               courts
          o To what extent do non-article III courts mimic Article III courts
          o Origins and Importance of rights being adjudicated
                     (Northern Pipeline seemed to say this was the whole ballgame –
                       now its only a factor)
          o Concerns that drove Congress to depart from Article III adjudication
               of it
   -   Probably waived fairness claim him, but structural right here that he hasn’t
       waived
   -   Inexpensive, efficient, fast, these people know what they’re doing etc.
   -   Think about this as interesting – state common law cases are not usually
       decided by Article III judges
          o So there’s some prepolitical baseline common law notion going on here
                     Because this is the paradigmatic dispute of that
                             So worry if you shift that over, can’t explain why you
                                shouldn’t shift other things over as well
          o Dissent. Article III, § I seems to prohibit the vesting of any judicial
               functions in the Legislative and Executive branches, but the court has
               recognized three narrow exceptions: territorial courts, courts-martial, and
               courts that adjudicate certain disputes concerning public rights. The
               judicial authority of non-Article III federal tribunals should be limited to
               these few, long-established exceptions.


Thomas v. Union Carbine
   - Uses same constitutional structure as CFTC
   - BUT shifts standard of review to fraud and arbitrary decision making
          o Survives CFTC test because describes arbitration claim in Thomas as
             kinda public on the spectrum of private/public
   - Binding arbitration and not de novo factual review from that
   - Could do it by charging a fee, paid to the agency, and then the agency would then
     pay them back
          o Different mechanism in fact from being liable to another private party
Barron, Admin, Spring 2007
Grade: A-
   -   Key move: this is so similar to a binding arbitration proceeding that it should not
       raise Article III concerns. Agency just skips a few steps and makes it a direct
       transfer from one private party to another

7th Amendment (pg 135)
    - Not really going over this but generally inapplicable in admin proceedings where
      jury trials would be incompatible with concept of administrative adjudication

Think of it this way, a lot of times with these adjudications, all that’s happening is
administrative agency “skipping a step”, instead of tax or fining and then distributing
money to someone else – which is can totally do

ARTICLE II
Article II Basic Questions
    1. How do we pick who runs an agency?
            a. Appointment
    2. How do we get rid of people once we select them?
            a. Removal
                    i. Importance of threat of removal
                   ii. Clearly Constitutional but fraught with political peril
                           1. Think Saturday night massacre
    3. How do we tell them what to do while they are there?
            a. Supervision

Constitutional Executive Powers
   - “take care the laws be faithfully executed”
           o Seems to be written in a way suggesting that there is going to be a lot of
               other people executing these laws
           o Huge issue if you read “the laws” to include the Constitution
                   Might mean he should make sure certain laws don’t be executed,
                      so as not to interfere with the Constitution
                   If it includes the constitution, this clause might give the president
                      the powers to ensure certain statutes don’t get executed on the
                      grounds that they are unconstitutional
                           Signing statement debate can be reduced to a question of
                              meaning of “laws” signing statements might be
                              legitimate as an exercise of president’s power to take care
                              that constitution is faithfully executed
   - Keep the union alive power
           o Implicit in above powers, have to make sure union alive to do this
           o Implied in the structure
   - Specific Powers
           o Appointment
                   No mention of supervisory powers
           o Commander in Chief
           o Veto Power
Barron, Admin, Spring 2007
Grade: A-
           o May require opinion in writing “of the principal officer in each of the
             executive Departments”
                 Gives some sense that people would imagine a fair amount of
                    discretion – as if someone could have said no I won’t provide you
                    with an opinion
                 Concern on the other end that these agencies might not be in
                    control of the President
           o Recommendations clause
                 Allows the recommendations of measures he thinks necessary
                 Reflects framers anxiety about separation of powers, wanted to
                    make sure he could propose bills

Youngstown
   - During Korean War, about to be big steel strike, Truman issues an executive order
      seizing steel mills
          o Could have issued an injunction against the strike – didn’t
          o Instead seizing mills and raising wages to what workers want
   - Background, some evidence Chief Justice Vinson advises him that the order will
      be upheld, having lunch with Justice Mintz(sp?) the day he issues the order
   - Claims power under
          o Statutes
          o Article II powers
                   Commander in Chief
                           Striking how President did not rely on Commander in Chief
                             power – perhaps because this was an undeclared war
                   Executive Power
                   Take Care Power
                   Some suggestion of Executive Power
   - Black Opinion
          o President loses
          o No statute that works, no seizing statute that lets him take quickly enough
              and doesn’t issue injunction under Taft-Hartley
          o Constitutional arguments
                   More worried the President is exercising legislative authority
                     instead of looking at Article II power claims
                           Could have the view that power of this sort has to be
                             initially authorized, even in the most general of terms, by
                             Congress
                           Or could say this is a scary power and you need specifics
                             behind it otherwise this is a disconcerting delegation of
                             power
                   President is essentially saying you have allowed me to fight this
                     war. The troops need weapons, and I need to make the way of
                     making this actually happen.
                           Black makes a huge homefront/non-homefront
                             distinction
Barron, Admin, Spring 2007
Grade: A-
                     The power to take care the laws are faithfully executed refutes
                      the notion that the President is a lawmaker
                   Black’s formulation says Congress hasn’t authorized this, but
                      never says they restricted him by statute from acting
                   So the reason is that he is not authorized by statute and can’t do it
                      out of his inherent powers
   -   Jackson Concurrence
          o (Jackson was legal advisor to Roosevelt while Roosevelt was seizing
              industries during WWII)
          o 3 category dynamic
          o Congress not silent in Jackson’s view
                   Has made clear that you cannot seize the steel mills
          o Category One: Authorized by Congress
                   No separation of powers problem because both branches are in
                      agreement
          o Category Two: Zone of Twilight where Congress silent
                   But doesn’t mean President is powerless because President
                      comes to the table with his own powers
          o Category Three: Lowest ebb where Congress has affirmatively
              prohibited
                   President can only disregard statutory restriction if he is not
                      only acting according to a power that’s inherent but instead
                      one that is exclusive
          o Seizing steel mills falls into Category 3 and therefore deserves the highest
              level of scrutiny, which it fails. So its not that President doesn’t have
              constitutional authority, its that Congress has prohibited it.
          o Key point: the major issue is not necessarily a constitutional one, but
              a statutory interpretation one! How you interpret the statute in terms of
              what Youngstown bucket it puts you in makes a big difference
          o Think about these in terms of Appointment, Removal and Supervisory!
          o Realize how important this makes this a statutory interpretation question,
              and that interpretation being inherently tied up in the Constitution

Appointments, Removal, Supervision
  a) Appointments clause overview
        (1) Article II gives President the power to appoint “officers of the United
            States.”
            (a) Default rule: Any office will be filled by the President with
                advice/consent of Senate unless statute purports to do otherwise so
                for both inferior and principal offers, congressional silence means
                President appoints
                (i) Principal officers always appointed by President.
                (ii) Inferior officers assumed to be appointed by President unless
                     Congress specifies otherwise
Barron, Admin, Spring 2007
Grade: A-
              (b) Congress can only provide otherwise/specify appointment for inferior
                  officers. They have three options of where to vest power of
                  appointment:
                  (i) President alone
                  (ii) Courts of law
                  (iii)Head of department
              (c) Levels
                  (i) Principal Officers
                  (ii) Inferior Offices
                  (iii)Employees
      ii) Underlying purposes of structure
          (1) Heads of agencies will be President’s people, but Congress still has some
              control through Senate confirmation
          (2) Size of bureaucracy President cant possibly manage it all, so we want
              the heads of agencies who decide this to be President’s
          (3) Visibility for the really big appointments
          (4) Anti-patronage/meritocratic: Check against constitutional patronage: we
              don’t want Congress to create offices so they can fill them with

Buckley v. Valeo
   - Senate President Pro Temp picks two members
   - Speaker of the House picks two members
   - President picks two members with the majority of House and Senate
   - Two ex-officio members who can’t vote
   - Are you an officer test?
           o “Holding an office”?
                  Certain tenure to it
                  Certain emoluments that come with it
           o And “Exercising significant authority pursuant to statute”?
                  Significant powers
                          The commission issues an advisory opinion (seemingly
                            without supervisor)
                          Enforcement powers
                                o Can sue the candidates in court to enforce the
                                   statute
                          Adjudication Powers
                  Powers that are wide-ranging
   - Factors to look at:
           o Analogies to past decisions
           o How much authority is being authorized
                  Did Congress seem to treat it as an office?
           o Just exercising power in aid of the legislative function?
                  This makes it just some congressional commission of some time
                          Like Iraq study group
   - Barron Takeaway: Two things to be an office
           o Significant enough power while holding an office
Barron, Admin, Spring 2007
Grade: A-
           o Not purely legislative actions
                 Ends up being really important in Buckely because FEC
                   commisioners are doing rulemaking, adjudication and enforcement
                   powers  not just legislative

Morrison v. Olsen
  - Is independent counsel an inferior or principal officer?
  - Possible issue of political pressure to actually pick someone
  - The Office of the Independent Counsel
  - Four Factors
           o Appellant is subject to removal by a higher Executive Branch official
                   To be inferior you have to report to an officer besides the
                      President
                   Attorney General can fire you, but only for good cause
                            Doesn’t seem to include a disagreement over policy
           o Appellant is empowered by the Act to perform only certain, limited
              duties
           o Office limited in jurisdiction
           o Office is limited in tenure
  - Holding: The IC is an inferior officer independent but subordinate.
           o But are they really subordinate?
                   Have to adhere with DOJ policies as much as possible (i.e. unless
                      it interferes with my ability to prosecute the case BUT this may
                      not be much of a constraint at all),
                   AG can fire you for “good cause”  but this probably doesn’t
                      allow for firing just for policy disagreement?
                   Limited in jurisdiction, but might be able to expand that
                      jurisdiction if related to principal investigation
  - Court may not do a great job in convincing us that this is a subordinate officer-
       but we can probably make some arguments that this is right
           o At the end of the day, this is a relative test. How do you compare to other
              people that we have defined as inferior?
  - (Barron: these tests are all really nice and helpful, but also important that this is
       necessarily a comparative project)

Edmond v. United States
  - Secretary of Transportation got to appoint Coast Guard Head of Criminal Appeals
     Judges
  - Are these judges inferior or principal officers
         o Broader Jurisdiction
         o Pretty significant duties
                  Across a whole bunch of cases
         o Tenure is really long across many cases
         o Pretty independent, they’re judges
  - Scalia argues these guys are totally subordinate
Barron, Admin, Spring 2007
Grade: A-
           o Can’t issue final binding judgment without Court of Appeals for Armed
               Forces reviewing their decisions
           o These people can be fired with or without cause
           o Review
   -   What makes the Coast Guard Appellate Judges more dependant to Scalia than
       independent counsel?
           o Not limited in tenure
           o Not limited in jurisdiction
           o Supervision must make them more dependant
                    Subordinate to the JAG and Armed Forces Appellate Court
   -   Transportation JAG can remove them
           o But trying to influence judge in a individual cases
                    But could evaluate judges over time
   -   Plus the Armed Forces Court can overturn any case
   -   So this actor can never do anything without someone else approving
   -   Scalia concedes that it would be inappropriate to remove a judge for a decision in
       a particular case because it would compromise independence. BUT he argues that
       there is a key difference between trying to influence the decision in one particular
       case with a right of removal without cause the latter involves a look at a pattern
       of cases or a decision in some important cases and is an important driver of the
       judge being “inferior”
   -   Also, there is another level of inferiority in that the court’s decision is reviewable
       by the Court of Appeals of Armed forces so this is actually even more control
       than the independent counsel

Does Edmond overrule Morrison?
   - Not an on/off switch
         o Scalia in Edmond says Morrison factors are not a bright line test
         o Not a complete removal power in this case
                 But made up for by Armed Services Court of Appeal, maybe
                    something to make up for that in independent counsel act
   - Don’t lose sight of the policy/politics behind these decisions

Freytag (pg 175, maybe supp too?)(US 1991)
   - Tax Court gets to appoint special trial judges
   - Tax Court has to be valid appointing authority
   - To be a valid appointer they have to be a Department
   - Is the Tax Court a department?
           o The Tax Court is freestanding
           o But what is its relationship to the President?
                    Doesn’t really have one
           o History
                    Blackmun’s idea of a fixed number of departments way back when
   - Blackmun thinks that Department only refers to cabinet level departments which
       are “limited in number and easily identified”
Barron, Admin, Spring 2007
Grade: A-
   -   Why doesn’t Blackmun want to dramatically expand the number of
       appointments?
           o Patronage concerns about diffuse appointment power
           o But counterargument that diffusing the appointment power defeats
               patronage
   -   In the end Blackmun says these are courts of law
   -   Courts of Law do not have to be article III courts
   -   Possible problem: US Attorney appointed by Tax Courts?
           o Relative low-level people to be giving that power
   -   Scalia says maybe have more capacious understanding of what a head of
       Department is
   -   Also the concern that if you expand definition of courts of law, then the USAs
       could end up being appointed by relatively low-power Article I courts like tax
       courts- that would be giving a lot of power. This why Scalia and others rush in
       to say we cant define court of law so expansively
   -   Incongruity test – when nature appointment is being made is incongruous with
       scope of Court of Law, can’t do it
   -   What are the limitations on giving an Article III court the right to appoint
       individuals?
   -   Morrison says this is fine, but there is an outer limit: nature of appointment
       cannot be incongruent with the function of Article III court (e.g. judges
       shouldn’t be picking EPA inferior officers, but probably okay for them to choose
       federal prosecutors)

Importance of appointment power
   - Who gets to choose who does what
   - Senate confirmation can be a bitch (Rumsfeld example)
          o Not get who you want
          o Works against lots of things etc
   - Important way of structuring control aspects over bureaucracy
   - Appointments control how you do backend appointments

REMOVAL

Myers (Taft opinion)
  - Constitutionally if you’re a valid appointing official, you’re also a valid removing
       official
           o (Idea of delegating firing power means you’d have to fire the guy who
                wouldn’t fire the lower guy)
                    (This is what happened with Archibald Cox and Nixon)
  - Removal is incident to appointment
  - Myers is potentially a valid limited holding
           o Congress can’t move to itself removal power
           o Gave itself advise and consent over removal power
           o Very different than giving an overall standard of removal
  - Source of removal power comes from Executive vesting clause
Barron, Admin, Spring 2007
Grade: A-
           o That’s also the source of the appointment authority according to Taft
                    Inherently Executive act
                    Not the appointments clause
                            If there was no appointments clause, the President would
                               have the power to appoint
   -   To that extent you have no discretion, if you duties are so discreet we’re not
       worried about need for Presidential control
   -   But also quasi-judicial actors
           o President couldn’t remove in particular case
   -   For Taft, the type of function the officer (whether principal or inferior) is
       exercising matters. If it is an executive function, then we cant allow
           o For high folks (heads of department, etc) no independence allowed and
               therefore no “for cause” removal requirement
           o For lower folks- some of them might be performing functions that are not
               purely executive quasi-judicial actors for whom it might be possible to
               lay down a standard which prohibits removal for a particular case
               (preserve independence)
   -   Myers rulings
           o Congress cannot assign to itself the power to remove a particular
               executive official
           o President’s power to remove springs from the vesting clause
                    But removal can be placed below in Department heads or
                       maybe courts of law
           o Executive Officers whether inferior or not, cannot be insulated from
               President’s power to remove save for two exceptions
                    Exercising such a limited power (narrow, tight discretion) as
                       regards to statute
                    Quasi-judicial power

Humphrey’s Executor
  - FDR trying to remove a FTC Commissioner
  - FTC Commissioner says no I’m staying for rest of my term
         o Estate of this man is suing for back pay
  - Court could have dodged this but clearly wanted to hear this case
  - Principal Officer here
         o Myers would suggest this means Congress has less power to remove
  - Higher removal restriction here than good cause: negligence, inefficiency or
     malfeasance
         o UPHELD BY COURT
  - Not purely executive here
         o Quasi-legislative
                 Describes standard rule implementing function of agencies as
                    quasi-legislative functions
         o Also quasi-adjudicative
         o Says the FTC executive functions are ancillary to the quasi-legislative
            functions
Barron, Admin, Spring 2007
Grade: A-
           o Takeaway: Even at the high end of the bureaucracy, you can limit the
             power of the President to remove as long as it is not purely executive
             function. So a common theme between Myers and Humphrey is the
             importance of the function performed if its just an executive
             function you cant restrict removal.

Morrison (removal)
  - Nature of functions less important than Myers and Humphrey’s
           o Not interested in just classifying it to classify it
  - Instead want to know that nature of functions to aid us in a new kind of inquiry
  - Test
           o Does limitation on President’s power to remove impede his ability to
             do his constitutionally assigned functions
  - Note the similar move here (Like CFTC v. Shore)
           o Before that turned on public/private right distinction
           o Afterwards figured that into generalized multi-factor test
           o Same move being made there is being made here
  - Scalia dissent
           o Functionalist argument: You’ve effectively just created a new supervisor
             for all executive branch actors because they will factor into their decision
             making calculus/advice to President whether the action will trigger an IC
             investigation. This interferes with President’s otherwise unfettered control
           o For example, people in White House Counsel office doesn’t take notes.
             You don’t want to write something down that can be subpoenaed in a
             future investigation.

US Attorney Example
   - Could you put a “for cause removal”?
   - US Attorney’s are inferior officers
          o Doesn’t seem to matter under Myers if you’re an inferior officer
                  Postmasters are inferior officers in Myers
          o Idea of limiting removal to the appointing officers
                  Courts of law
                          But real issues
                  Head of Department
                          But helps insulate the President politically
   - Morrison standard of whether is really gets in the way of his executive power
          o “interfere impermissibly with his constitutional obligation to ensure the
             faithful execution of the laws”
   - Humphrey’s purely executive test

Basic argument of removal power:
   - Power of removal comes from executive vesting clause, Article II
          o Might also come from implied power in take-care clause
   - Power to appoint is also an executive power, from Article II grant of executive
       power
Barron, Admin, Spring 2007
Grade: A-
           o Whole set of rules concerning appointment – limitations on executive
              power
   -   No similar limitations on removal power
           o Conclusion: removal must not be subject to regulation
                   Remains as President’s power, with no limitation
                   Clearly means that Congress can’t reserve to itself some removal
                      power
                   Also means Congress can’t put restrictions on reasons for removal
                   But, Taft suggests in Myers, probably an exception for
                      adjudicative-type decisions and decisions over which the officer
                      has a very narrow, almost mandatory obligation under the statute
                      to exercise some discrete task.
   -   Humphrey builds on this scheme and almost guts it.
           o Says Myers must mean it depends on the function.
           o If purely executive, means P has full power over them, but if quasi-
              legislative or quasi-judicial, congress can lay down standards of
              removal.
   -   After Myers and Humphrey, seems to qualify nature of functions of officer subject
       to removal.
   -   Apply scheme to US attorney case:
   -   Myers is pretty good authority for P to resist restrictions on removal power
   -   Even if US attorney is an inferior officer – in Myers, inferior as well
           o Humphrey is pretty good authority as well – suggests that if purely
              executive officer, Congress can’t put restrictions on removal.

Political cost of Removal
    - Plus appointment issue on the backside
            o Now have to staff it up again and get the new person confirmed

Ways President Can Assert Control Besides Removal or Threat of Removal
  - Speaking to the public
          o Want to follow – Human psychology
                  Underlying notion of loyalty
                  Want to follow
                  Want to make President Succesful
          o Very dependant on public reaction though
          o Everything being read through the sword of Damocles of Removal lens
          o Now constituencies/interest groups start pushing toward those policies
             with appeals in the agency
  - Proposes Budget
          o Leverage point of Presidential budgetary control through OMB
  - Possible reorganizations
  - President could ask Department Head to do something
  - Could tell Department Head to do something
  - Process of Revising
          o Some element of feedback/supervising (OMB style)
Barron, Admin, Spring 2007
Grade: A-
   -   Substituting himself for agency head
   -   (my idea on appointment/removal power over people under him (assistant
       secretaries, etc.)

Difference between directing and substituting
    - Agency head could drag heels, do details differently, etc.


AIDS Flyer Case
   - Placing in Youngstown framework
   - What Youngstown category does the statute requiring CDC to issue mailing
      without clearance place the President- Category 2 or 3?
          o Statutory interpretation
                   Category 2: Congress was silent on presidential action here. “Can’t
                     do clearance” does not mean you can’t review clearance and
                     review are different. Find an ambiguity in statute, say President has
                     constitutional power here and we shouldn’t construe statue as
                     limiting those powers unless explicit
                          Problem with framing it as a statutory interpretation
                             question is that Congress can just come back with a new
                             statute and it then becomes harder to raise the constitutional
                             issue since you didn’t the first time
                   Category 3: Congress prohibited presidential action. President’s
                     reviewing power doesn’t have to be exercised y him staff can be
                     used to perform review functions of the bureaucracy. It’s not the
                     President alone in the room looking at the document- this would be
                     impractical.
                          So this is probably a category 3 case. This statute does not
                             permit the type of review that the President wants to
                             perform, but President can argue that this infringes upon his
                             constitutional power.
   - Congress knew this was in the President’s power, so unless they explicitly
      withdrew it from them, should assume its there
          o “clearance of the content”
          o “organization or office”
                   Does this include President?
                          If you want to say the President can’t do review you should
                             be explicit
   - President’s argument: My reviewing power doesn’t have to be exercised by me,
      that’s nuts. He’s incredibly busy
   - (Barron: If you work through the language this is a category three case)
          o (President claiming this review is constitutionally based and can’t be
              stopped)
   - Possible source of President’s Constitutional Authority here
          o Take Care argument
Barron, Admin, Spring 2007
Grade: A-
                  President has to be sure people under him are faithfully executing
                   the laws
                But why would the President care so much so just see that laws are
                   executed faithfully?
                Clearly there’s some discretion and policy choices to be made in
                   executing laws, and President is saying that he has to be the one to
                   make those choices
                (Barron: there is always discretion to exercise executive power, see
                   executive power argument bound up here)
        o General vesting of executive power
        o Can ask Principal Officers for opinion in writing
  - Nixon similar to Morrison (can’t impede President from performing constitutional
    assigned functions
  - Congress could have just stuck this in a mailing in many ways, so is this really
    “purely executive”?
  - Myers
        o But this has nothing to do with removal
        o Everything else is drawn from Taft’s dicta justifying his need for removal
        o But counter-argument
                Why isn’t the removal authority enough of a disciplining thing on
                   its own?
  - Morrison
        o Is this impeding his executive functions?
        o But is this a “discrete task”?
                If it is then Congress can probably do it
CLEAR UP HOLDING HERE

Kagan’s Argument
   - Best to read all statutes conferring power on agency heads as implying giving
      President the power to control them unless otherwise stated

Sunstein/Lessig Reading
   - Distinguish between the system the founders put into place and the way their rules
       went of separation of President and ordinary bureaucracy
   - Because it didn’t matter because the bureaucracy would be small
          o Congress and the States would make policy
   - But we live in a very different world
          o In the Founders world, the most important things, Foreign Policy and
              Defense, the President has total control
                   So as we expand the bureaucracy hugely into other areas, to fulfill
                      the founder’s original vision we have to give the President total
                      control over lots of these areas

Clinton Executive Order
    - Putting the power in OMB to do this reviewing
    - This makes sense if you think about it
Barron, Admin, Spring 2007
Grade: A-
            o Reviewing
                    Significant Regulations with major cost impacts
                    Not every speech, not adjudications, etc.
   -   Says specifically in evaluating benefits should look at qualitative benefits
       specifically
   -   If the agency gets the rule and OMB sends it back saying it has more costs than
       benefits, and the agency wants to do it anyway it must “inform” the OMB in
       writing
   -   This basically goes all the way to the President can “inform” them of his decision
            o (Barron: this is very unclear over what the scope of President’s power on
               this)
   -   (Barron point that Congress has somewhat acquiesced because it hasn’t attacked
       any of these executive reviews)
   -   Exempts Independent Agencies from review of regulations
            o But they come to meetings at the beginning of the year to be in the
               planning process

Possible issue with OMB able to overturn adjudications?
   - Some sense you can’t review that
   - Myers
            o President’s review powers over adjudication are appropriately limited

Why OMB
  - Not too close to President to be too busy
  - But no other agency has control over them
  - No cabinet official over OMB, direct to President
  - Budgetary technical knowledge at OMB
         o Cuts both ways, might focus too much on cost, not enough on benefits of
            regulation
  - OMB’s control over budget has inherent disciplining quality to it because it
     already controls your budget
         o So think about it, you’re have real leverage over them because you control
            their budget while you’re commenting on their rules
  - Downsides of OMB
         o Cost/budget focus might bias the entire process instead of looking at
            purpose/benefit to society even though executive order says we should
            look at qualitative benefits, but how well suited is OMB for this
                 But couldn’t you just say no reason we need to structure OMB as a
                    bunch of budget analysts- we can bring people who have the
                    regulatory skillset in.
                 Idea that you can perform regulatory review aimed at getting
                    optimal regulation as if there is a science of good regulatory
                    policy. This might not be right though- there might not be a
                    generalizable principle of optimal regulatory policy
Barron, Admin, Spring 2007
Grade: A-
Bush EO
   - Putting in the political guys
   - See how this relates directly to appointing and reviewing authority

Beginning with Reagan – this is a major tool Presidents have used to get control of the
bureaucracy
   - Reagan and others ran on hostility to the administrative state
   - Clinton tweaks but doesn’t eliminate Reagan executive order
          o Softens cost-benefit review (want qualitative considerations too)
   - GWB comes in
          o His executive order essentially keeps it all in place
                  Makes ground for being initiated somewhat stricter
                         Show market failure
                  Makes Clinton’s “regulatory policy officers” political people that
                    the president appoints

Possibilities of Congress controlling the agencies:
   1) Statute creating the agencies
            a. But don’t want to be cabining agency as you are creating it in many cases
   2) Statutory requirements of notification
            a. Report and wait requirements
                     i. But think about how many there will be?
                           1. Congress isn’t really capable of handling all that
                           2. So either have no regulations or
                           3. Have a deadline which Congress will pretty much never
                                meet
                           4. Also odds are you will face a Presidential veto so have to
                                get 2/3rds, assuming President asserted control on the front
                                end
   3) Deny them funding
            a. Hard to do in advance because don’t know exactly what they’re going to
                do
            b. To use on backend, have to actually get passed
                     i. But much better used because hard to veto, the vagaries of the
                        process
            c. Blunt instrument
            d. Because of process – recipe for bad forms of regulating the bureaucracy
            e. Denying funding is hard to use as a spur to action, easier as a restraint to
                action
   4) Choosing where in the bureaucracy to locate the control power
Non-statutory mechanisms of statutory control
   1) Confirmation process
            a. But just the Senate
   2) Impeachment
            a. Incredibly blunt/extreme
            b. Constitutional standard for it
Barron, Admin, Spring 2007
Grade: A-
   3) Oversight
         a. Don’t want to look bad
                 i. Hurts future career, stops you from getting bumped up higher
                    especially if you need to be confirmed
         b. Way of getting publicity
         c. Way of triggering Presidential supervision
         d. In the shadow of statutory authority
         e. Issue: at the end of the day all it is, is oversight unless its backed up by
             some statutory change

Chadha (pg 193)
   - Congress has given INS the power to stay deportations of people
          o Use to only be Congress who could do that with private bills
   - But the Congress switches it, makes it so Attorney General can suspend the
      deportation
          o For reasons like present over seven years, good moral character, hardship
          o (Barron key thing! Power here is not AG saying if they got the law
             right, power is an extra review that’s based on a grace and mercy
             component)
   - Comparison of previous Private Bill process to current AG process
   - This is an instance of Congress delegating authority away from itself
          o But in return for giving the Attorney General this discretion,
             Congress retained for itself a one-house veto within a specified time-
             frame
                  Gives Congress a period of time in which it can act
   - More statutes struck down in Chadha than any other statute in history
   - Burger Opinion
          o Focuses on fact that Congress has to go through Bicameral presentment
             when it’s making a law
          o And these legislative vetoes are “clearly” a legislative act
          o Argues that this is a change in Chadha’s legal rights
                  (But did they really? Never a statute in place giving him right
                     to stay outside of Congressional control)
                  But Burger’s argument of let’s now look if substantive law-making
                     is being done at this time – it is
                  (Idea of handling case other ways: this was really a case
                     exercising executive or judicial issues)
          o (Barron: but how can Attorney General alter the legal rights of
             individuals without bicameral presentment but Congress can’t
             overturn it with bicameral presentment)
          o Characterized as executive action, could be said to be law-making, but its
             executive action taken pursuant to a structure and mandate and subject to
             judicial review
                  But if AG suspends who is going to seek the judicial review??
          o Very much like Strauss argument
Barron, Admin, Spring 2007
Grade: A-
                    All these agencies are within mechanisms of control of the various
                     branches
          o But Congress is worrisome, not constrained in this framework
                   But have a way of handling this power: through bicameral
                     presentment
   -   Argument against Burger’s ruling
          o You’ve gotten rid of the non-delegation doctrine
          o The extent agencies and executives are able to go beyond the original
              framework is ridiculous
   -   Argument about very politicized body making an adjudicatory decision on
       someone’s status – too political almost
   -   War Powers Act emasculated under this
          o To stop President have to do bicameral presentment, which President can
              veto
   -   White’s dissent
          o Argument that this is just Congress training to retain it’s Article I powers
          o Agencies are issuing regulations with the force of law without bicameral
              presentment here anyway!

Veto staying alive through complex intra-branch negotiations pg 206
   - working out adaptable relationships

Bowsher (176)(1986)
  - Comptroller General supposed to look at reports and decide if deficit would
      exceed statutory limits
          o Two reports: one from OMB, one from CBO
  - If Comptroller General decides we’re above the statutory maximum
          o Decides where cuts are to be made in a decently across the board-ish way
  - President is required to issue orders of “sequestration” to implement the cuts
  - Comptroller General nominated by President from a list of three individuals
      recommended by Speaker of the House and President Pro-Temp of the Senate,
      confirmed by Senate, removable only at initiative of Congress
  - Opinion says it is clear that “the Comptroller General is an officer of the
      Legislative Branch”
          o “Because Congress has retained removal authority over the
             Comptroller General, he may not be entrusted with executive powers”
  - Question of whether he is performing an executive function
          o Court says Yes
                  Exercise of independent judgment in construing what statute
                     requires – with real effects on what happens
  - Can be removed only by the initiative at Congress
          o By joint resolution
                  Removal for “inefficiency”, “neglect of duty”, “malfeasance”
  - Reality of discretion of what’s a programs in an across the board cut
          o Morrison reality – executive power – has control over the entire
             federal budget
Barron, Admin, Spring 2007
Grade: A-
   -   Court holds what the Congress did here is unconstitutional comes from
           o Removable by joint resolution (both Houses and President)
                    Not like Myers
                           Had no President or House in Myers
                    This guys becomes pretty insulated from everyone
   -   Yes, CG performs an executive function. His exercise of independent judgment
       binds the President binding legal judgment made pursuant to a statute in
       terms of the statute with the consequence that government action changes as
       a result. Given he is performing an executive function, unconstitutional for
       Congress to remove him
   -   (Barron: not saying its unconstitutional to give these powers to an executive
       branch actor, even one with some independence)
   -   Issue with removal being contingent on president and override being just like veto
       override?
   -   Stevens Concurrence
           o Legislative power is being delegated to Comptroller General
           o Some circularity to the argument
           o Makes it like Chadha
                    (Says it because he’s one of their guys, not subservient to them but
                      Barron says hangs out with him. Congress consciously created the
                      GAO to counter the CBO)
                    Agent of the legislature but not the House or the Senate
           o To figure out who’s guy it is, look at the understanding of how it works
                    Institutional arrangements, loyalties
                    Focus on practical functional relationships

Clinton v. City of New York (224)(1998)
    - Has President makes judgments as to part of bills
           o Reduce budget deficit
           o Not impair essential government function
           o Not harm national interest
    - Within five days he can return it, Congress has an expedited period or review, can
       overrule President’s cancellation by statute
    - Stevens Opinion
           o This is the President amending/repealing the law without bicameral
               presentment
           o Functionalist point
                    President has to put cancellations back in five days
                    Nothing has actually changed in five days
                    This is clearly not a power to implement a law, or execute a law
                      or carry it forth
                    Because nothing has changed you’re clearly just vetoing and
                      changing the law
                           So this becomes a veto screwing with Bicameral
                              presentment, not executing the law at all
    - Breyer Dissent
Barron, Admin, Spring 2007
Grade: A-
           o Functionalist
           o Used to have lots of little laws, now he only gets a massive bill
           o Gives President same type of control he had back then when there
               were only 15 or 20 separate little bills
           o But also a formalist argument!
                   Since line-item veto act globally passed
                   Now makes all appropriations come with an asterisks basically
                      saying that the bill is subject to a line item veto issue
                   The line-item veto provisions are now considered inserted into
                      every bill
                   Also how does this encroach on Congress power?? All it would
                      have to is insert a line into a bill saying the line-item veto act
                      doesn’t apply to it
                           Almost just reversing a previous non-existent
                             presumption here
   -   Kennedy Concurrence
           o Giving President the power to select friends and favorites
   -   By the time this comes to the Court it has been concluded
   -   Nixon thought he had the power just to impound funds, OLC head Rehnquist
       actually wrote saying no you don’t have this power
   -   Then Congress passed an impoundment act saying you have to actually spend the
       money so can’t pull a Nixon

THE APA
  - If Congress wants it can exempt any agency from the APA or change or alter any
     APA procedures
        o Will often do so through the organic statute
        o So need to know both APA and organic statutes of agencies
  - First thing APA does is divide the world in half
        o Either Agencies are making rules
        o Rulemaking (Says it because he’s one of their guys, not subservient to
             them but Barron says hangs out with him)
                  Rulemaking §553
                         This section tells you if you’re an agency how you engage
                            in rulemaking
        o Or issue orders
                  Adjudication §554
                         This section tells you what to do if you’re engaged in
                            adjudication
  - Another cut the APA makes in the world  Formal and informal modes of
     agency action
        o Can have formal and informal rulemaking and formal or informal
             adjudication
        o If organic statue requires rulemaking to on the record, tip-off under APA
             that you have to act formally
Barron, Admin, Spring 2007
Grade: A-
                      Kicks you out of the §553 rulemaking procedures and into the
                       §556-557 procedures
   -   Under §553 just have to do
            o Notice
            o Comment
            o State basis and purpose for the rule
   -   Under §556-557 proceeding
            o Much stricter much more formal procedures
   -   For adjudication start at §554
            o These are on-record formal adjudications
   -   If it doesn’t have to be formal adjudication, somewhat an open question, but best
       view out there is §555(e) governs it
            o §555(e) doesn’t say much, basically just that you have to tell people what
                you decided

Londoner
   - Established a paving district – going to pave a street
   - City Council has decided to impose a special assessment on abutters of the street
         o Assessed based on frontage of your house along the street
   - Abutters object, want two things
         o Not to be assessed
                 But put that aside
         o Question focus on if they had a chance to be heard
                 Got to make a written objection to City Council before it occurred
                 Objected because they didn’t get the chance to be heard
                        Possible Ideas
                                o Decision-maker should be made to hear from those
                                    that the rulings will effect
                                         Similar to confrontation clause
                                         Legitimacy enhancing function of person
                                            who gets to be heard
   - Court concludes that you get the hearing

Bi-Metallic
   - State assessor ordered by boards to raise all assessments of city property 40%
   - Put the form of their question in the “we haven’t gotten due process”
   - Less process here than in Londoner
   - Don’t want to impose this rule on everyone with giving individualized
      adjudication

Possible Ways To Understand Adjudication/Rule-Making distinction
   - Particular v. General
          o But lots of people, few people question?
                  Distinction important because if you had lots of these than the
                    individualized adjudication would be impossible
          o What about laws that target very few people
Barron, Admin, Spring 2007
Grade: A-
   -   Point of doing this
          o Be aware of malleability of these concepts
          o Very slippery concepts to get a hold of
                   Agency lawyers might be able to spin these concepts to benefit the
                      agency
                   But other side could do the same thing back to you
   -   Basic distinctions
          o Few/Many
          o Applies to everyone/Specific Singling out
          o Future/Past
          o Could anything you tell use be relevant to this decision
   -   Much more formal, less conceptual distinction is the APA itself
          o §551 (page 1322)
                   Defines difference between rule-making and adjudication
                   Seems to reject general/particular test
                            Rule is “of general or particular applicability”
                   Future looking nature of the issue is important
                            Order is result of adjudication, anything that isn’t a
                             rule
          o For APA, licensing is adjudication
          o Rate-making is rule-making

Bi-Metallic has largely won out, so much so that Barron thinks that Londoner might not
come out the same way today
   - Much large level of comfort

Thoughts
    - Don’t want to give you an individualized hearing if you could more effectively
        make your case through politics
            o But if you do individualized adjudication – might tap-down desire for
               political system
    - Lots of interpretative methodologies out there for APA, many could be applied at
        any time
Interpreting Legislative Intent
    - Interpreting a word
            o Legislative history for that particular word
            o Ordinary meaning to general public
            o Ordinary meaning to legal community
            o Purpose of APA generally speaking
            o Meaning of the words today
            o Agency’s interpretation
                    Increasingly becoming the dominant mode of interpreting organic
                       statutes but not used for APA itself
            o Text of statute
Barron, Admin, Spring 2007
Grade: A-
Wong Sun
  - 554 requires hearing “on record” required by statute so the puzzle here is why
      Jackson concludes that 554 applies even though there is no requirement on the
      face of the INS statute for a hearing on the record
  - Objection is that the class of persons making case against you, and sometimes
      directly against you, violates §554 of the APA
  - This argument only works if this is a adjudication
          o Deportation order
          o Individualized
  - Limitation of combination of functions comes from §554
  - Jackson creates a wider story about purposes of the APA
          o Huge concern of the partiality of administrative adjudication
                   Animating purpose of the APA
          o Uniformity among agency decisions
  - Possible interpretative approach, tie goes to approach these evils
  - This is all background before he actually confronts the text of §554
  - If hearing is required by statute than §554 is required
  - However hearing is required by Constitution in this case
  - Jackson says he could either
          o Interpret it as required “by statute” or higher purposes (Constitution)
          o Or Interpret it against the purposes of the statute itself
  - Or making argument that the statute itself requires it
          o Could say its somewhat ambiguous and then construe it to follow purpose
              of statute
  - (Note: Jackson just came back from Nuremberg, very attuned to arbitrary
      definitions o liberty) Jackson: We read things through the lens of the purposes in
      the APA every provision of the APA should be construed to
      effectuate/address the evils that the APA was directed against. Where there is
      ambiguity, always resolve it in favor of promoting uniformity or
      redistributing functions. ALWAYS CONSTRUE APA TO ADDRESS ITS
      PURPOSES

Greenwhich Colliers (pg 269)
   - Taking methodological point
   - What is “Burden of Proof” question
         o Is it burden going forward
         o Or Burden of persuasion
   - Labor Dep’t here has construed it along the “true doubt rule”
         o Makes it easier for Employees to win because employee just has to have
            the burden going forward and then the employer has to be able to fight it
         o O’Connor: look at the ordinary meaning of burden of proof in the
            legal community as a whole in the year the APA was passed (1946) as
            opposed to the meaning used by the agencies.
                  Burden of proof likely meant burden of persuasion at that time.
                     Therefore, Labor Department interpretation inconsistent with APA
   - O’Conner looks at meaning of “burden of proof” in 1946
Barron, Admin, Spring 2007
Grade: A-
           o So she looks at ordinary meaning for the legal community at a whole for
              year that APA based
                   Uses Wigmore for it
                           Even though Agencies were trying to escape things like
                              Wigmore
           o Other side has some legislative history
                   But they used certain words, so must have meant certain things
   -   (arguments about using leg. history: coherence across statutes, doesn’t let a
       couple legislators overly influence the process)
           o (Barron: Almost an empirical guess of what’s more likely to capture the
              attention of the legislator. Ordinary legal meaning (Wigmore?) v.
              legislative history v. Want to force legislature to interpret through
              Ordinary Legal Meaning)
   -   Attractive for us to force legislators to use the ordinary meaning because this
       makes interpretation easier and produces sound legislative practices

Comparison of Jackson’s Interpretive Method in Wong Sun v. O’Conner in Greenwhich
Colliers
   - Neither is in to nitty gritty of particular textual provision
   - O’Conner’s interpretive method doesn’t depend on diving the purposes of the
        APA
            o Does touch on it but isn’t really relevant
   - O’Conner more computerized, Jackson very different method by depending on
        purpose
   - (Uniformity cuts with O’Conner, Jackson is more flexible, these things could vary
        by agency)
   - Separation of functions
   - (Would the relevant legal community view actually track the purposes of the
        statute?)
   - Third way to look at this: this is a deal! Deals between contending forces that
        setline on textual provisions that split the difference if you always read the
        general purposes in, you are just undermining the deal! Jackson’s
        methodology pushes you to conclude that there is always a coherent purpose
        behind the law, but this ignores that these are all deals

Florida East Coast Railway (Supp.)
    - Rehnquist Opinion
    - ICC has engaged in a rate-making proceeding
    - Essentially imposing a tax on holding a boxcar not your own
    - Question: What procedure must the agency abide by to make the rate change?
           o Opponents wanted a hearing on the record
    - So where do we look to decide this?
           o §553 of the APA, not §554 because this is rate-making, which is “rule-
              making” according to §551
           o §553(d)
           o Any other arguments
Barron, Admin, Spring 2007
Grade: A-
                       Due process claim?
                             But Bi-Metallic
   -   Organic statute language trigger §553 provision that kicks us to 556/557
   -   If not does Organic statute require more process than 553 would provide
   -   Rehnquist
           o Difference between organic statute requiring a hearing and a hearing on
                the record
           o Different than Wong Sun but could distinguish because Wong is more like
                adjudication than this case
           o Rehnquist is not saying you have to say magic words to kick into 556/557,
                but not going to give any benefit of the doubt to those saying it.
           o HAVE TO GIVE CLEAR INDICATIONS OTHERWISE
           o Go back to when organic statute was passed (1917) and what hearing
                required at that point.
                     Historically you didn’t have the right in a hearing to present
                        evidence and cross-examine
                     Supported by Bi-Metallic logic: no expectation of full hearing
           o Particular provision of statute ICC was actually passed after ICC
                     So by looking at that, if they wanted to include extra elements
   -   So what he’s saying is they knew it was there in the APA, so because they knew it
       was there then operating to fill up and give content to organic statutes use of the
       hearing
           o So if they wanted a bigger kind of hearing could have specified it
   -   What he’s saying is that if you want a 556/557 hearing have to be very
       specific, otherwise interpret “hearing” as 553
           o There is a difference between the organic statute requiring a hearing,
                as opposed to a hearing “on record.” If there is no “on the record”
                requirement, its not enough to trigger the additional requirements
           o Because this was just hearing, saying hearing makes it 553 – having
                something that says hearing makes sure to give it less not more
                     Different than you’d expect
   -   Issues with moving too slowly, Rehnquist wants to speed it up
   -   Is able to pushes it further to informal because it’s a rule-making and not an
       adjudication
   -   Key point: although ICC statute enacted in 1917, the provision that is referred to
       in this case was passed after the APA. Therefore, the original meaning of
       “hearing” at the time post-APA enactment is a 553-type hearing. So here, the
       meaning of the organic statute hearing requirement is actually determined
       by APA Section 553!
           o So the hearing requirement in the statute actually mandates that you get
                553 they had a choice of 553 vs. 556/57 hearing, but because they
                decided not to “adorne” heaing then we presume it is 553.
                     APA is doing two things
                             APA fills up/gives content to the organic statute’s use of
                                “hearing”
Barron, Admin, Spring 2007
Grade: A-
                                 o Lack of triggering language means you are confined
                                   to 553 as opposed to 556/557

Shapiro (pg 263)
   - History of APA originally, APA was compromise
           o Matter requiring adjudication were heavily weighted towards
              conservatives
           o “rulemaking, constituted an almost total victor for the liberal New deal
              force”

Seacoast Anti-Pollution League (pg 325)(1st Circuit)
   - Nuclear power plants hot water discharge
   - Company says yes, we can do it because we can apply for a discharge permit and
      that act allows for an exception as long as there isn’t a big impact and using the
      best science available
   - So question is what procedure is allowed for this?
   - Regional administrator has a public hearing with ALJ judge on the record
          o Comes to different conclusion (denial) than he did initially before no
              hearing)
   - Power plant appeals regional administrators decision up to the head of the EPA
          o EPA has scientists appeal the report up
   - Head of EPA says based on the scientists report, concludes should give them the
      permit
   - Enviros want more process – specifically full on hearing in front of Head of EPA
          o So sue when they don’t get it
   - Phrase is this statute is “public hearing”
   - Enviros want to get in to 556/557
          o So say it should be a formal provision on the record under 554
   - Under 551 this is a permit or licensing
          o Licensing is adjudication (so 554) because that’s what 551 says
   - “Public Hearing” does trigger 554 and then 556/557
   - Presume when it’s an adjudication that if there’s a hearing requirement in
      the statue, that is a trigger to 556 and 557 proceedings
          o Regardless of if people are seeking to vindicate rights from private party
              or party representing the public rights
   - Read from APA what hearing in the organic statutes mean
   - Idea of applying Londoner logic to private enviros?
          o If plant wanted process would fit perfectly with Londoner
   - What is the Court’s argument for applying these rights it in a case where a private
      party wants protection, not the party whose rights are being affective
          o Gravity of decision
          o Nature of law (organic statute) is to protect public, not private rights
   - What reasons could there be that this isn’t in compliance with 556 etc
          o Written, not oral, submissions
          o No cross-examination
          o Record was open, not closed (non-exclusive)
Barron, Admin, Spring 2007
Grade: A-
                   Advisory Panel added comments
   -   Nothing wrong with analyzing and sifting emphasis
   -   Expert Credibility is very important
   -   Organic Statute requires a public hearing
          o Court construes the word public to mean it has to be oral
   -   No Cross examination
          o Under 556 cross is only required for “full and true disclosure of the facts”
                   Barron says interesting here is that Court apparently forgot about
                     the public hearing, whatever rights come from the APA itself
   -   Court has no problem with use of experts
   -   But BIG PROBLEM with use of experts to add information post hearing
          o Remands to say either a whole new hearing or make decision based on
              record without those additions

No SCOTUS decision directly on point to explain whether an adjudication has to be done
pursuant to 556/557 of something less

Dominion Energy
  - First Circuit uses this to reverse Sea-Coast Pollution League
         o SCOTUS hasn’t weighed in on this issue

Chemical Waste Management (DC Cir.)
   - Agency should have ability to interpret its own organic statute
   - Agency gets to interpret what hearing means
         o Constraint: has to be a reasonable interpretation on behalf of the agency
   - Agency interprets here says that you only get on the record hearing if there is a
      possible civil penalty
   - Why is this attractive to the agency?
         o More efficient
                   So why not for everything?
                          Worried that Court will overturn or Congress will step in if
                             too little process
                          Legitimacy with the parties
                          Notions of fairness

Barron: logically agency has to be interpreting APA at least somewhat because you have
to at least be thinning out §554’s on the record requirement enough to have a low enough
floor

Wong Yang Sung relies on purposes of APA, using APA as a gap-filler when its unclear
  - whereas Dominion Energy goes the other way and starts with the organic statute
     and use that as a gap-filler
  - if you want to reconcile them you use Chevron as a gap-filler

Hybrid Rulemakings: When agencies’ organic statutes set forth procedures that are more
than 553 but less than 556/557
Barron, Admin, Spring 2007
Grade: A-


1) Chemical Waste Management and Dominion Energy come at the 556/557
   triggering issue very differently than Sea Coast where the hearing requirement is
   ambiguous, defer to agency interpretation as long as it is reasonable.
   a) These cases DEFER to the agency on what lines it chooses to draw! Rather
       that the court pulling the organic statute into the APA, the analysis in Chemical
       and Dominion allows the agency to interpret what the hearing requirement means
       in the organic statute. So for the purposes of the APA, we have no idea whether
       there is a hearing on the record required in the organic statute and cant know until
       the agency is finished construing the hearing requirement in the organic statute.
       Agency can either say there is a hearing required (and the court would defer), or
       say no hearing (and court will defer as long as the interpretation is reasonable and
       there is no clear congressional intent otherwise).
   b) Chemical- okay for the agency to construe hearing requirement as mandating on
       the record proceeding only when civil penalty may apply
   c) Dominion Energy- defer to the agency as long as its reasonable. Reverses
       Seacoast. BUT not a Supreme Court opinion so we are not sure which one is
       right (Dominion, Seacoast, Chemical)

2) Vermont Yankee
   a) Issue. Is 553 the only source of procedural constraint on informal rulemaking, or
      are there others?
   b) Holding (Rehnquist): YES.
   c) Policy arguments
      i) Unpredictability. If the agency can’t just look at 553, it will be very hard for
           them to know what they need to do in advance because there are million of
           other sources.
      ii) De facto 556/557 proceedings. Consequence of uncertainty is that agencies
           will opt for 556/557 just as an insurance policy to make sure they are doing
           enough
      iii) Concern about over-proceduralization of administrative law. It gets in the
           way of agencies doing their job and regulating. BUT note that while here the
           nuclear power plant gets the benefit of less process, in Florida Railway it
           hurts the industry.
      iv) Hostility against free-wheeling judicial decision-making as opposed to
           constrained judicial decisionmaking
   d) Class notes
      i) Other potential sources
           (1) Idea that APA is not exclusive--there might be some federal common law
               authority of the federal courts that APA did not take away
           (2) Constitution/due process
           (3) Organic statute
           (4) Prior agency procedures (that courts say you cant drop)
      ii) Barron: Due process could be a source of additional authority, but APA is not

How do you get around Vermont Yankee to get more procedures beyond 553?
Barron, Admin, Spring 2007
Grade: A-
   -   Three actual APA requirements were not construed in Vermont Yankee so maybe
       you can flesh out the meaning in a favorable way to get a robust procedural
       process. What you see in the Alaska and Nova Scotia case is that even after
       Vermont yankee, courts are still looking to add procedure in this way.
          o Notice
          o Comment
          o Statement basis of purpose

Alaska Timber
   - Towing timber through the waters and bark breaks off and causes a pollutant
   - Permit the EPA issues has to piggyback on Alaska law
   - Alaska law makes a judgment on whether a discharge scheme violates the state
       clean water laws
           o Somewhat strict standard but has a “zone of deposit” exemption
   - Federal permit allowing discharge is keyed into zone of deposit and Alaska state
       law
   - The Alaska agency has said for a long time that the zone of deposit is one mile,
       but also said that you’d have to really be 1.5 miles for them to bother with you
           o All of this is public
   - EPA then decides to do a rulemaking
   - Notice of proposed rulemaking
           o And keys this to Alaska law and its one acre zone of deposit
   - Actual rule issued by the EPA is somewhat different
           o Alaska agencies decide to change their standards to “no defined limit”,
               whatever the project area of logging facility is
           o But Alaska agency now says it will start looking into stuff not at 1.5 miles,
               but at 1 mile
                    Weaker in some respects, but know you start to run a risk earlier
           o This is public during the EPA notice procedure
   - Given what the notice is and what the final federal rule is, did the agency give
       proper notice within the meaning of §553
           o Court says not proper notice
   - TEST
           o Is the final rule a “logical outgrowth” of the rule that was noticied?
           o Would the final rule be a surprise given what the earlier rule said?
   - This is different from 1 acre to 2 acre since it completely changes the concept of it
   - Court talks about substantive change
           o How big is the change?
   - Court here is saying if you define the zone of deposit as not limited, it’s not really
       even a zone of deposit anymore
   - Because of these changes people wouldn’t have even bothered to comment on
       these issues
   - The questions of the comment period would have been different
           o Comments would have been on how big the size would be
           o Never apprised groups of being available to comment on all the issues
               surrounding that section
Barron, Admin, Spring 2007
Grade: A-
                     Thus deprived of their notice to comment
                           We know this because during this petition they came up
                              with all these comments that they didn’t have during the
                              initial comment period
                                   o Barron: Circular logic though
   -   Different tests
          o Logical outgrowth
          o Unfair surprise
          o Material difference/Fundamental change
          o Would interested party have interpreted the notice as to give
              comments on what turns out to be the actual rule
   -   Possible incentive to be more vague/broad in rulings, not to narrow it

Nova Scotia Food Products Corp. (2nd Cir. 1977)(Pg 524)
   - FDA issues a rule requiring you to heat your fish to prevent botulism
   - Uniform temperature, doesn’t go species by species (except for Chub and a small
      focus on how much salt in the fish)
   - Company doesn’t comply, US Attorney’s office moves to enforce
   - Worth thinking about the calculation of not challenging the rule at the outset
   - Arguments against the FDA
          o Substantive
                    Beyond statutory authority
          o Procedural
                    Inadequate statement of basis and purpose
                    Inadequate opportunity to comment on something of importance
   - Barron: Important to see that one way around Vermont Yankee will be on
      substantive side
          o Criticisms of Vermont Yankee
                    if Court’s really problem is with procedure and then have to decide
                     it on substance, then not actually fixing problem
                    Courts are much better at procedure than substance because they
                     actual know what they’re doing on procedure and they don’t on
                     substance
                          But arguments Courts don’t know rulemaking, they’ll just
                             come up with legislative procedures
   - Never answer criticism of fundamental issues in basis and purpose
          o Idea that then someone besides very low level people would have looked
              at it
                    Then the wont just defend it post-hoc
          o Legitimacy this attaches to outside world by presenting it at the beginning
   - Have to address major arguments in statement and purpose
   - Not holding its substantively invalid, just holding that you violated process
          o Doesn’t matter if arguments were good or not, just that you didn’t address
              them
   - Says they wont take any new evidence, stop the clock at the Record of
      Decision
Barron, Admin, Spring 2007
Grade: A-
           o Although the do look at the history of botulism etc.
   -   Question 1: How do we describe the category of evidence that must be disclosed?
           o Question 2: Now that we’ve identified that category of evidence, what
               aspect of the APA does it violate when we don’t disclose it
   -   Answer to question 1:
           o Scientific evidence critical to the decision must be disclosed
           o (If we interpreted your delegated authority broadly on the back end it puts
               an extra burden on disclosure on the backend)
           o Scientific information readily available to the agency
                    So basically don’t have to recreate internal agency discussions
                       about figuring things out – rather a paper they relied on
                            Issue of having the guy left, having to figure out what he
                               said, burdensome on discovery
                            Idea of not wanting diffuse knowledge in the agency to be
                               dependant on judicial review – will get back to that later
   -   Possible violations of the APA this causes
           o Notice?
           o Comment?
                    Putting study on the record after notice of proposed rule-making
                       would allow the opportunity for comment
                    They seem to apply this would correct the non-disclosure
                            So we know its not a notice violation – that it must be a
                               comment violation
           o 706?
                    Arbitrary and Capricious
                    Vermont Yankee says you cant add extra process
                            So encouraging hitting on notice and comment grounds to
                               change things
                            Vermont Yankee doesn’t say anything about substance
                               review!
                            Importance of having other side comment on substantive
                               views so the Court has some chance to figure out how it
                               works
   -   One reason this case might be bad
           o Just asking for junk, advocacy science by industry or enviros/consumer
               groups
                    Court is going to be having to judge these disputes
                    So who is going to have real expertise?
                            Probably the agency itself
   -   This basically adds to bulk up §553
   -   Holding No provision of statement of basis and purpose in this case
   -   Statement was not adequate because it did not address some fundamental
       objections (commercial feasibility concerns and no explanation of why regulation
       not fish by fish) some concerns are basic/fundamental enough that they must be
       addressed in statement of basis and purpose
           o Why must they include a response in the statement of basis and purpose
Barron, Admin, Spring 2007
Grade: A-
                     Affects the decisional process because it is more likely that a
                      higher ranked official will have vetted it if you don’t have to
                      confront the tradeoff explicitly, they will just defend it post hoc
                     Legitimacy to the outside world
                          Presenting reason at building makes it clear what the
                              decisionmaking process was and frame the debate going
                              forward

Pension Benefits Guarantee (472)
   - Vermont Yankee covers informal adjudication
   - If there’s any room its through either
          o 706 review or
          o Due Process


Barron Whack-a-Mole analogy
   - Every time Courts impose more process on a certain place, agencies try to move
       to a new place
   - So after Nova Scotia move to 553 exception (pg 705-732): interpretive rules and
       general policy statements
   -
Can do all without notice and comment
   - Military
   - agency procedures
   - agency organizations
   - “good cause”
           o Think FEMA or HUD doing Katrina action
   - Interpretive Rule or General Policy Statements
           o For stuff that’s really obvious
           o Think of the Congress-Agency delegation
                   Can’t possibly answer every question
   - If there is one area the Court’s are confused, its this area
           o Barron’s going to draw the difference he thinks is correct, but we should
               know Courts mix up the two

Air Transport Association of America v. FAA (DC Cir. 2002)(pg 706)
    - FAA has to proscribe rules for rest times for people who fly airplanes
    - Difference between scheduled and actual flight time
    - They write in asking questions
          o Get back answer: Whitlow letter
                   No its actually conditions on the day, not just what’s scheduled
    - So writes letter, then decides to publish the letter in the federal register and
       announce it will enforce that view
          o So companies sue in response
                   So they sue in advance instead of waiting for it to happen
    - Argument that its not an interpretive rule
Barron, Admin, Spring 2007
Grade: A-
           o 1. Changes the substance of prior agency interpretations
           o 2. Substantive if it’s a “new” obligation
                    Not “fairly encompassed by any pre-existing legal duty”
                            Could be pre-existing rule or organic statute or other statute
   -   What might flunk this test? (because of its not “fairly encompassed” isn’t it just
       invalid)
           o This initial rule regarding flight times required notice and comment
                    There was no pre-existing legal duty on any actor before the rule
                       was issued
           o When the agency fleshes out a very vague initial rule, is it engages in
               substantive rule?
                    If its so vague to be unenforceable than the follow on interpretation
                       should be considered a rule
                    But in Chrysler case, Edwards says you can clarify the mushy
                       standard through an interpretation
                            (Barron: this might encourage them to issue the
                               interpretation on mush, where they wouldn’t have gone
                               through the notice and comment period in the first
                               place)
                            (But this also encourages them to issue mush in the first
                               place)
                                   o (so they can basically completely skip notice and
                                      comment)
                                   o Huge hole in 553?
                                   o Idea that this might have different effects for the
                                      rule itself with notice and comment on the original
                                      rule?
   -   But here’s the deal if the agency interpretation is “fairly encompassed within the
       original rule” but then has an interpretation one way and then switches
           o (imposes additional costs on people)
           o Does it impose new rights or duties? Court says no
           o So its an amendment to the rule
                    Clearly a substantive change
   -   DC Circuit is the only Circuit that takes the view that the agency
       interpretation could trigger 553 if the agency is changing its mind
           o Every other circuit says if the interpretation is “fairly encompassed
               within the rule” it can be changed without notice and comment
               rulemaking

General Electric
   - Statute that says you cannot release PCB's unless you shown it won't do
      substantial harm
   - EPA issues a rule that says "here are all the ways that you can release a PCB that
      we will say right now does not have a problem (will automatically pass). Even, if
      you do it in another way, you still might get a permit.
Barron, Admin, Spring 2007
Grade: A-
   -   Then they publish guidance: When you are discharging in not one of the
       proscribed ways, you should either assess using standard A, or standard B. If you
       do one of those types of analysis and it meets our standard, you will get a permit.
       But, you can also do it another way.
   -   GE says that guidance had to be issued with notice and comment
   -   Court says there is too much mandatory language in the GD, the fact that GE is
       actually suing is another indication that it thinks is bound.
   -   Could it be an interpretive rule?
           o Maybe so, there was a preexisting legal duty in the organic statute
                    This rule seems to be fairly encompassed by the prior rule or the
                        organic statute
   -   So did they even have to use notice and comment for the first rule?
           o What would even be the point of notice and comment if you didn't have to
               do it in this situation?
   -   Stakes in this:
           o How much process are we going to require agencies to engage in when
               they are making policy?
   -   It’s a rule because it imposes “binding obligations upon applicants to submit
       applications that conform to the Document and upon the Agnecy not to
       question an applicants use of a certain toxicity factor
           o And Agnecy’s use of this document shows no lesser effect in practice

Last Issue in the Procedural Area is Chenery Issue - Choice between Rulemaking and
Adjudication
   - In those contexts in which the APA does not tell you whether you have to proceed
        through rulemaking or adjudication ( ie not ratemaking), are there any constraints
        on the agency's ability to choose?
            o Although some agencies are restricted in their choice between R and A,
                lots of them are not.
            o Some agencies have just developed a particular preference (NLRB for
                adjudication)
            o What considerations does an agency have when deciding to use one or the
                other?
                     how individualized will these cases be?
                             How much will they be in fact?
                             How much do I want them to be?
                     Efficiency argument for adjudication
                             If you do rulemaking, then you have to do notice and
                               comment
                     Fairness argument for rulemaking
                             Barron doesn't know how this will impact people on the
                               ground - maybe it will be helpful to have notice and
                               comment to learn about all the policy angles on this
                             What is downside to this? Attracts the interest of the White
                               House, adjudication might be more subtle and under the
                               radar
Barron, Admin, Spring 2007
Grade: A-
   -   4 Things to think about in this assessment
          o Efficiency
          o Quality of the Product
          o Fairness to the people affected by the decision
          o Agency's own political interests visa vi WH
          o *Maybe also think about the chances of judicial review

Chenery
   - Facts
        o Public Utility Holdings Act
                 These large scale holding companies were part of the reason for
                   the stock market crash, so we are going to break them up and
                   reorganize them
                 If they don't voluntarily reorganize, SEC has the power to force
                   them to do it.
                        Guideline is that it must be fair and equitable to
                           shareholders
                        For voluntary, you are required to be given a hearing before
                           the SEC can deny your plan
                        A company has submitted a plan in which the managers of
                           the old company buy into the new company
                               o SEC says that is not fair and equitable - some
                                   common law fiduciary duty that said in
                                   reorganization the old managers can't buy into the
                                   new company
   - Court in I
        o There is no such common law duty
        o Court cannot affirm the agency on alternative grounds. Can only affirm
            based on a reason that agency puts forth.
        o Why do we have this rule?
                 Positive view: Agencies are experts, we should not second guess
                   their view. If agencies don't say what it means, we are powerless
                   to act because they are the only ones who could know
                 Cynical view: We don't like agencies and we want to stick it to
                   you.
   - Chenery II (1947)
        o This time, agency said they based it on their experience
                 Court says: Sounds good!
                 What could be wrong with this?
                 To do this, we need to figure out what the Chenerys are arguing?
                 Are they arguing that SEC does not have the legal power to
                   prohibit this type of stock purchase?
                        NO
                 Do the Chenery's complain that you can't use an adjudication to
                   resolve the legality of this particular reorganization plan?
                        NO
Barron, Admin, Spring 2007
Grade: A-
          o Their complaint is that if they go by adjudication to create this rule, it
            cannot apply retroactively to the Chenerys. If you had announced the rule
            beforehand, you could definitely do so, but you can't do it now, having
            never promulgated the rule
                What is the legal basis for this argument?
                        Not Due Process violation
                        Seems like they are just saying that an adjudication cannot
                           be like this
                        Whether we like it or not, what the agency did here was
                           announce a rule. This can only be understood as a rule.
                           And you can't do that in an adjudication.
                        What would Jackson have the agency do?
                               o Let them reorganize
                So how does Chenery shake out?
                        Just a one line thing like Vermont Yankee: The choice
                           between rulemaking and adjudication is left to the
                           informed discretion of the agency


Bell Aerospace
   - Post-Chenery, Post-APA Chenery
   - Circuit thinks it found a chance to review agency choice
           o Change from old rule to new role all in one adjudication
                    SC says no
                           With a little wiggle room:
                                 o Suppose on remand the agency says that all 10,000
                                    buyers by virtue of being buyers are not managerial
                                    employees - Bell Aerospace is written to avoid
                                    answering that question
*Rules can be retroactive when an organic statute permits an agency to make them, but
under the APA, this cannot happen

Under Chenerey, whether to make policy by adjudication by policy or by rule is left to
informed discretion by agency
    - rarely an inquiry in the courts as to why the agency would use one over the other
    - Have to inquire about whether the retroactive implication of the policy announced
       through adjudication would cause such hardship as compared to the benefits of
       the policy announced that it would be unfair to apply it retroactively
    - Bell Aerospace
           o 2nd Cir thought it was unfair to CHANGE an existing policy through
               adjudication
           o SCOTUS say no that works

Substantive Review under 706 of the APA
Barron, Admin, Spring 2007
Grade: A-
   -   When we have no Constitutional issues (nondelegation, infringing on article III
       courts, etc, etc) and all the procedural issues under the APA are ok, that does not
       mean that we have no legal issue
   - Now the Court reviews the substantive aspects
           o Arbitrary and capricious *
           o Contrary to the Constitution (we don't really care about this)
           o In excess of statutory authority*
           o Not proper procedures (we have already taken care of this)
           o Unwarranted by the facts ( we don't care about this)
           o Unsupported by substantial evidence*
Pg 907 of casebook 5 U.S.C. §706 Scope of Review
   - makes express reference to §556 and §557 proceedings
   - Cumulative
           o Not in excess of statutory jurisdiction also
           o Not arbitrary and capricious, etc
   - “Substantial Evidence”
           o Basically the same as “arbitrary and capricious” in intensity of review
           o But Barron says in practice that Courts are a little more willing to
               intensively review the on the record proceeding, but roughly speaking this
               is the law

Universal Camera Corp v. NLRB (US 1951)
   - If the guy is a union agitator who testified against the employer at a board hearing
       or because he accused his supervisor of being drunk
   - Barron creates a review standard hierarchy
           o De Novo
           o Some evidence - Jury could reasonably conclude from evidence a
               certain verdict and a court would feel bound not to overturn it
                    Barron thinks Frankfurter is somewhat confused on this, likes the
                      jury analogy but wants you to recognize that federal judges, esp.
                      appellate federal judges are amazing people and shouldn’t be
                      hamstrung trying to figure out if agency got it right
           o Not really just scintilla of evidence
   - Frankfurter thinks that Congress created a “mood” when going into the
       APA
           o A mood of gravity and respect, the kind you make when making a really
               important decision
   - Key: WHOLE RECORD requirement
   - ALJ doing the adjudication
           o ALJ said the guy was fired based on the employee being drunk
           o Based on testimony that he heard and his review of credibility
   - Idea of Board being able to see possible patterns that ALJ might not
           o Although ALJ might too
           o But Board might have a sense of what’s happening on the ground
   - Appellate Court reviewed decision of the Board, the examiner’s opinion was
       neither here nor there because they aren’t the board
Barron, Admin, Spring 2007
Grade: A-
          o But Frankfurter disagrees
   -   Whole Record Review means even rejected decision of ALJ is part of whole
       record review
          o Looking at Board’s decision in light of the ALJs contrasting decision
          o Basic premise is that if we’re supposed to look at all the evidence of what
              the Board does and say if that’s substantial evidence, only really dumb
              boards would flunk
                   So have to be inspecting those things in record that point against
                     Board’s ruling
   -   KEY TAKEAWAY: Testimonial inferences drawn by trial examiner (e.g.
       witness credibility) get high degree of deference and Board is on shaky
       ground. Derivative inferences (e.g. policy decisions) drawn by Board gets
       high degree of deference.

Allentown Mack Sales and Services v. NLRB (US 1998)
   - Issue does board have substantial evidence that company had a reasonable doubt
       about union support
           o Law question
           o Reasonable thing for agency to do is only do polling when employer has
              reasonable doubt
   - Only really issue here is was the board’s finding here supported by substantial
       evidence
   - Scalia v. Breyer
           o Scalia says lots of evidence to employers that union isn’t supported
                    Lots of statements made by employees that some employees don’t
                      support union
                    Testimony from a guy (union steward) who says lots of people
                      don’t seem to like the union
                    Night shift guys saying other guys on night shift saying they didn’t
                      like the union
           o But Breyer says
                    This was during job interviews! These people really wanted jobs!
           o But maybe there’s a policy based fight here, how hard can board make it
              for employer to prove they were uncertain about union support
                    Scalia says Board is trying to find whether there is “doubt” and
                      says doubt means “uncertainty” and not “disbelief”
   - Scalia is saying Board could issue a rule and say this but it has to stick to
       what it says. If Board wanted disbelief as standard it had to say so, not just
       make uncertainty a really high standard
           o Limits what you can do to change a rule through adjudication almost
              (it seems to me)
   - Breyer says Board can make objective good faith belief of uncertainty pretty hard
           o Scalia says this is too hard, objective standard of reasonable doubt makes
              the board not be able to make that way to hard
           o Breyer says Board can make it want it wants to put in its policy aims and
              can read the standard like it wants
Barron, Admin, Spring 2007
Grade: A-
   -   Scalia’s worry of hiding from general public what the actual standard is with
       regard to labor
           o If you’re going to take this whole pro-union position I want to make you
              announce this as loudly as possible
                   (look at Mass global warming case, positions flip)
   -   As we can see, it’s very hard to stay at the level of judicial review and substantial
       evidence review of fact-finding


NLRB v. Hearst (US 1944) (1979)
  - Are newsboys employees?
  - Board says yes if they sell at a certain spot etc.
  - Threshold question here: what does employee mean?
         o Rutledge says there are many different ways to construe employees
                  Text from Congress
                  Since they haven’t: State Common Law
                          Rutledge looks both state by state and general common law
                            of employees
                          Says statute wasn’t made to contain state common law
                            vision of employee
                                 o Makes this decision without thinking of what
                                    agency says on this question
                  So Rutledge looks to purpose of the act
                          Rutledge says these are to secure labor peace by stopping
                            strikes and cure unequal bargaining power
                                 o Does not look to agency at all on this issue
  - Only defers on applying the act to specific questions
  - Text doesn’t tell us what employee means
  - Then Court makes independent interpretive judgments
         o Does not intend to track common law meaning
         o What Congress was doing was instructing those who would be interpreting
            the statute to construe the term employee in light of the purposes of the
            national labor relations act
         o The Court elucidates the purposes of the National Labor Relations act
         o No reference to the agency views, judge construing statute
  - The first nod to the agency is that whether a statute having that kind of meaning,
     as to whether it includes the actors on the ground, then we defer to agency

Packard (pg 984)
   - are foreman employees
   - This is a “naked question of law”
   - So “administrative interpretation” is irrelevant
   - Importance of lots of people affected versus importance of this actor
          o (Bigger deal than newsboys)
   - No deference to agency!
Barron, Admin, Spring 2007
Grade: A-
Skidmore (pg 985)
   - Is waiting time working time for purposes of FLSA?
   - Come up with waiting time could be working time themselves
   - “The weight of such a judgment in a particular case will depend upon the
      thoroughness evident in its consideration, the validity of its reasoning, its
      consistency with earlier and later pronouncements, and all those factors which
      give it power to persuade, if lacking power to control”
   - Barron: We’ll follow you if your persuasive
          o Is that even deference?
   - Court says consistency which agency has taken view is important
   - Agency doesn’t have power to issue binding rule or issue adjudicative decision
      with binding force, can just bring issues
          o (Contrast with Hearst, where full 556/557 adjudicative proceedings. The
              fact that Hearst had those proceedings seems to make a big difference to
              the Court.)

Barron on Hearst-Packard-Skidmore Legal Regime
   - Fact-finding is substantial evidence
   - Law deciding – de novo review for much of it
          o Even lots of the legal analysis in Hearst is de novo review
   - Mixed fact and law or application of legal standard to particular circumstance - ?
          o Factors that seem to matter to the Courts
                   What’s in the mix between law/fact
                   How consequential is the area of decision
                         Packard seems this is important, so for us
                   How persuasive was agency
                   How clear was agency delegation

CHEVRON
Three Questions to ask
      1.     “Step Zero”: Does the Agency Administer the statute?
      2.     Step One - Has Congress spoken to the precise question at issue?
                  If yes, game over
                  Don’t defer to agency on this issue
      3.     Step Two - If no, is agency’s resolution permissible/reasonable?
                  ambiguity gets resolved by agency so long as its
                    permissible/reasonable
                  (Barron: arbitrary and capricious review in part)
                  (Barron: two thoughts on step two)
                        One: Is the agency interpretation in the bubble of
                           reasonable possibilities
                        Two: Even if its in the bubble, it has to have a
                           reasonable interpretation for why it picked what it did
   - Where does Chevron get its authority
         o Constitution?
Barron, Admin, Spring 2007
Grade: A-
                   We looked here, saying couldn’t figure out what Congress meant.
                    If Court then goes on to resolve it must be on policy
                    considerations. Doesn’t work with Article III (seizing Article I
                    powers)
                  Hard to say constitutional demands the Chevron approach because
                    already in a complex relationship with that divide of law/policy-
                    making
          o Could Chevron be unconstitutional?
                  Problematic delegating this much power for Congress to Agencies,
                    but okay doing that so long as Courts have some review of Agency
                    decision making
                         Non-delegation doctrine is satisfied because while agency
                            has legislative/judicial power it’s limit by Courts
                         But now Agency is choosing its own limitations under
                            Chevron
                         BUT there is always statutory bounds on agencies and
                            Congress delegated
          o So really Constitutional Optional?
                  Not the source or barrier of Chevron
                  But does it have a role in Chevron
          o Organic statute?
                  Source of ambiguity?
                  Why did Congress leave an ambiguity?
                         Didn’t know what to do, decided to leave it unclear
                                 o Implies Congress did speak about it, Agency should
                                     decide
                         Didn’t want political repercussions/difficulty to pass, leave
                            it to the agency
                         Congress never thought about it at all
                  Steven’s account is all three of these, every one of these Stevens
                    reads to have Congress wanting for agency to resolve these
                    ambiguities
          o APA?
                  Check against §706 (pg 907)
                         Doesn’t mandate legal questions be reviewed de novo,
                            Congress made the law that ambiguities be resolved by the
                            Agency
What’s good about Chevron?
  - Strong expertise argument
  - Not punting it to Courts, forces Congress being more clear
          o Oversight control of Agencies
                  Congress is elected
          o President’s agencies
                  Elected anyway
  - Flexibility for agencies
Barron, Admin, Spring 2007
Grade: A-
   -   Induces action at agency level by giving confidence they can make decisions
       that won’t be second-guessed in way that would always be unclear
Differences from old framework
    - After Chevron – more potential deference
           o A lot of the deference concerns on how we construe step one
    - Applies to all law deciding questions, including pure law questions
    - Doesn’t seem to matter whether its an important issue or non-important issue
           o Or the other factors from the mutli-factored analysis Barron outlined
               above
    - The Court is really never setting policy after Chevron
           o Big distinction of law/policy now (although this was a little implicit in
               Hearst, but Packard didn’t seem to have a problem with it
           o Different way of thinking of your task as a judge
    - Degree of clarity Chevron purports to provide is rule-like in formulation, very
       different than old general free-floating body of mush that I can appeal to and
       navigate
           o Issue that maybe Chevron is losing clarity
    - It could be Chevron could result in a world of less deference than we had before
           o Could see Courts doing step one analysis
                    Supreme Court level has done a lot of this
                            Many of the more important admin law cases are decided at
                              step one now
                    Not how its actually panned out

Chevron doctrine
statutory doctrine, default rule read into organic statute
        comports with 706 – doesn’t mandate chevron presumption, but doesn’t preclude
it.

Why would we adopt this rule? Why would we think it’s correct?
     After, will move through next 2 steps:
             -how does step 1 of chevron operate? FDA vs. Brown, MCI
             -step zero – in what circumstances does chevron presumption apply at all?
                     Mead and related materials

Conceptual discussion of where Chevron comes from:
        Stevens gives 3 possibilities about why it’s a legitimate account that congress in
creating an ambiguity in an organic statute should be understood to have intended to
delegate to the agency:
        1. actually consciously intended to delegate – why they left it ambiguous
                wanted agency to interpret
        2. Congress couldn’t agree, so left it open knowing agency would interpret it
                not best option, but next best.
        3. Congress had no idea there was an ambiguity – hadn’t thought about the issue
                but did know that agency interpretation was quite likely to happen
                and thought that when it did happen, agency should be the one to resolve.
Barron, Admin, Spring 2007
Grade: A-
       Stevens says it doesn’t matter which is the reason for the ambiguity. In each
instance, it would make sense for the agency to be the one to resolve it.
Persuasive? Why not?
               -worse case for Steven’s argument is number 3?
                       Might not be worst, because probably not that important
               -equally bad to defer if Congress intentionally chooses to delegate?
                       Distinguish between that instance and where they couldn’t decide?
                       More worried about when they couldn’t decide and “punted it.
                      Think in example of global warming:
               Give to experts at EPA – have scientists and expertise?
               More worried about when Congress isn’t incapable of deciding but can’t
                       So they put choice to agency – why is agency appropriate decider?
       What is Steven’s answer to this problem?
Punting
    - Idea of being good because its small and technical
    - Or being good because even though its HUGE, better for a technical decision-
       maker to make the decision
             o Punting scary because its punting the worse part of the political choice
    - Stevens could think its okay because better for Administrative agency to have
       decision because its really a policy issue and better for some electoral
       responsibility in administration than none in judges
             o If they’re going to punt why punt to Court – better to Punt to agency
No non-delegation
    - Always relying on ambiguity
    - So there’s always some limit inherent so not a lack of delegation
    - But what about within the “zone of ambiguity” there’s no principle to decide
       within that zone?
             o Principle – organic statute’s purpose
                     But its that what’s guiding the agency, why can’t the Court use that
                       to guide it, that’s what its good at
                            Steven’s says that’s impossible to do because the purposes
                              cut all different directions
                                    o But then American Trucking problem, because is
                                        there really any principle here

Idea of easier to tolerate a doctrine of agency filling in true purposes of ambiguity

Advanatages of Chevron
   - Uses expertise
   - Political accountability of administration v. courts
   - Legal realism
         o Where Courts interpret statutes they’re making it up too
   - Creates a lot flexibility for agencies to go back and forth changing
         o Instead of Court ruling they’d have to go back to Congress to get laws
   - Might induce them to act, eliminate gun-shy function
Downsides of Chevron
Barron, Admin, Spring 2007
Grade: A-
   -   Seems to strip a neutral party, a mediator: the Court, from making decision
           o Makes it more political
                    If Agency is captured or too regulatory
   -   Possibility for much more buck-passing is smuggled in through opinion
           o Task for Agency and Judges is to find that Congress said nothing
                    Encourages this attitude toward Congress enactments
                    Shift in power from Congresses to Agencies/President
   -   Not a lot of stability
           o Allows large policy-shifts between administrations
           o Doesn’t let business be secure in their investment
   -   Putting expertise and politics on same plane as a valid reason for agency action
   -   Idea that this makes it much easier to regulate, not what system is designed to do,
       was designed much less gummy
           o BUT this happens in mid-80s and is de-regulatory in and of itself

Does this change how Congress would delegate to the President? As much? Not as
much?
   - Three statutes have mention Chevron and changed the deference rule
   - Congress can always just overturn

Combination of Chevron and Scalia on the Court led to a lot more dictionary usages
  - Waste of time to look for intentions of multi-member bodies

Idea for what to consult
    - Legislative History
    - Text
    - Purposes
           o But could have easily misapprehended the scope of the purpose and read
               the exception the wrong way
           o Multi-purposes issue

Is there anything about Chevron itself that favors a certain canon or method of
interpretation?
     - Idea of Chevron is an interpretive guide of how to think about step one
            o Assuming Congress means to delegate when they’re not clear
                    So if not immediately clear, just say it must be for the agency
                      before delving deeper

Idea of how we’ve done it, textualists will find more ambiguity than non-texualists
because they’re looking at a more defined area to find clarity in.
    - but not necessarily true

Realist point: All of these cases are just driven by the substance
   - Seems to fall along these lines

MCI Telecommunications Corp (1994)(pg 1052)
Barron, Admin, Spring 2007
Grade: A-
   -   FCC is trying to regulate telephone carriers
   -   Background statute requires no unreasonable rates
           o But also requires you must file in advance and then can’t change it
           o But has provision that you can “modify” any requirement
    - In pursuant to that the FCC has decided that ever carrier besides AT&T does not
       have to comply with this, but AT&T does
    - Scalia does this all at Chevron at Step One
           o Says Congress unambiguously spoke to the question at issue
           o Looks to the word modify and pulls out the dictionary
    - Steven’s Dissent
           o In thinking about “modify” to baseline, can’t be a really big or
               fundamental change
                    Just like Scalia!
                    Steven’s looks at the dictionary also
           o Looks at purposes, stopping unfair competition
                    Because the non-dominent carriers have to have competitive rates
                       anyway
                    Any restriction on AT&T furthers this purpose but lowering
                       barriers to entry for others by doing this
                    Heart of this part of the statute
                            Could this be anything but the purpose based argument
Stevens in MCI is not really deferring to agency conclusion, he’s deciding at Chevron
step one
    - Seems to have view at step one that its permissible to dispense with the file rate
       for non-dominant carriers
           o Legal conclusion, doesn’t seem like he would bend to agency discretion if
               agency said that it was not legally able to get rid of the file rate
               requirement
    - But Stevens seems like he would defer to an agency policy judgment here that
       they didn’t want to do it
    - So interesting question here about does Court defer to Chevron step one agency
       decisions?
           o They aren’t really doing policy here, just doing traditional role of the court
               in interpreting a statute
           o Whereas step two is doing policy
    - But idea of both being valid
           o Barron: Most times when Court deferring to interpretations of Agency
               actually referring to policy based assertions so don’t have to face up to this
               choice
           o Barron: Legally you’re on the strongest footing going in saying I’m the
               policy actor here.
                    Delegated discretion in a zone identified by the Court instead
                       of deferring to interpretations to Court

Brown & Williamson (online)
   - FDA has determined (President pushed through executive order)
Barron, Admin, Spring 2007
Grade: A-
   -   When they adopt regulation, conclude that nicotine is a drug and cigarettes are a
       drug delivery device
           o Contra to their long-standing interpretation that nicotine was a drug and
               that cigarettes were a drug-delivery device
   -   Did not ban cigarettes, but came up with some small, Barron says mealy-mouth
       regulations of advertising to children
           o This was more about laying down a marker, saying “we can regulate you”
   -   Barron: Big legal question of under statutory scheme if FDA can find something
       is an unsafe produce and the not ban it
           o Part of the reason it wasn’t decided it this way was because everyone
               realized what the issue was here
   -   Does the Court use Chevron to say the agency has decided the statute isn’t
       ambiguous, but then doesn’t let it change the statute
   -   Idea that maybe FDA had authority way back when, but said they didn’t
           o Congress in reliance on that assertion enacts statute after statute regulating
               cigarettes, saying they want to regulate it but not go to far
           o Initial grant of power to the agency has been implicitly amended by other
               statutes
   -   O’Conner “extraordinary case” rational
           o Packard unimportant-important case rationale between unimportant and
               important was wiped out by Chevron
                    But now it’s like there’s a Super-Important distinction that seems
                        to come out of Chevron
                             She’s hedges somewhat on this point, but there seems to be
                               an aspect of this that’s independent of the post-enactment
                               history
   -   Breyer dissent
           o Idea that Congress could have found the authority

STEP ZERO question
   - Step zero is flunked at times by the agency
          o Easiest version: Although agency has power to administer some statutes,
               the statute being considered is not one where we can say the agency has
               any authority to administer
                    Ex. APA
   - Ex. FDA administers organic statute and might encounter some other statute that
      serves to bear on its interpretation in some way like an agricultural subsidies
      statute. FDA wasn’t charged with construing this random statute, so it shouldn’t
      get deference.
   - Agency is administering its own organic statute but the particular provision that
      has arisen under the statute is an issue where we would question whether the
      agency should get deference
          o Ex. implied right of action- question of who can sue to enforce the statute
               when Congress does not specify? Should agency get deference on whether
               statute contains implied right of action?
Barron, Admin, Spring 2007
Grade: A-
                     Courts often say no on this because it is not the type of issue over
                      which the agency could have been intended to have the authority to
                      assert. Might make sense in this case because.

But other step zero issues below

Mead
  - Facts. Head of a Customs Service division has issued a letter ruling that reverses
     prior agency views and categorizes day planners a diaries (whice therefore makes
     them subject to tax). Day planner importers sue to avoid cost of the tax.
  - Agency is charged with administering statute
         o No Fox guarding henhouse problem
  - Interpretive rule (no notice and comment)
  - Individualized determination
  - Informal adjudication
         o Trying to figure out what diary means
  - NOT
         o A 553 notice and comment rulemaking
         o Not a formal rulemaking
         o Not a 556/557 formal adjudication
         o A hybrid rulemaking or adjudication
  - Most minimal process protections under APA
  - Want to avoid being bumped into notice and comment rulemaking
         o Because this is much more like an informal adjudication
  - Barron: so this is either an interpretive rule or informal adjudication
  - High/Low access issue
         o Should it matter who issued it and when they issued it and issued it when
             litigation began
  - Opinion (Souter)
         o Chevron is the wrong framework for addressing this problem involving
             something the agency issued only with the intention of binding a single
             person and not for third parties to rely on it (in other words, an informal
             adjudication or interpretative rule with only informal processes).
         o Souter treats the Step Zero question as an issue of congressional intent- we
             need an indication that Congress wanted it to apply. If you are using less
             process, there should be more intensive judicial review because we are
             suspicious of that. This was done without informal rulemaking or
             adjudication- it would be nuts to think that issuing rulings with no process
             entitles an agency to the same deference as that achieved with intensive
             notice and comment rule making. So its not that the organic statute
             provides direction; neither does the APA. This is interpretative
             background about agency process that we are ascribing to Congress
                   A lot of this is based on that Souter thinks it would be nuts to do so
                      otherwise
         o When agency uses 553 notice and comment for 556/57 procedures,
             under Mead it will almost always satisfy Step Zero.
Barron, Admin, Spring 2007
Grade: A-
                      But does APA cut the opposite way? 706 says substantial
                       evidence goes to more formal processes
          o If you are administering your own statute, doing conventional
              interpretation of it, and use the procedures of 553/556/557, we will assume
              in the vast majority of cases that it merits going to Step 1 review.
                    When agency has done a lot to make the decision easily
                       reviewable, courts are less suspicious
          o Where agencies are not using safe harbor procedures (e.g. informal
              adjudication or interpretative rules), it can fail Step Zero because we
              assume Congress didn’t want deference in these cases you have an
              uphill climb to get Chevron deference in this case.
          o If you don’t get Chevron deference you get Skidmore deference
                    553/556/557 provide basically a safe harbor
   -   Problems with this opinion
          o Congress does not necessarily want deference when agencies aren’t using
              procedure because decisions without process might not be that important!
          o Barron: APA does not have a uni-dimensional view of process! It
              doesn’t always require formal proceedings using informal adjudication
              can be implementing APA as opposed to transgressing it/cheating/etc.
          o Idea that interpretative rulings are perfectly legal and that Congress/APA
              is the one giving agency the right to be informal its not the agency
              trying to cheat, etc
          o Why not understand APA permission for informal procedures in some
              cases as Congress trusting agencies where do we get this preference for
              formal proceedings?
          o Isn’t this inconsistent with Vermont Yankee because it uses the Chevron
              carrot (judicial power/discretion over Chevron) to force/incentivize
              agencies to formal proceedings even when APA doesn’t require it? Does
              this judicial role take us back to the pre-Chevron world of Wong Yang Sun
              where judges are making the call?
   -   Scalia
          o High/low distinction. Only real question should be whether this is the
              agency’s authoritative interpretation? Once we have affirmative indication
              that agency at the highest levels has glommed on to the interpretation it is
              enough (and here, we have that because Solicitor General and agency head
              say it is authoritative).
          o Problem: this is post hoc authoritative interpretation possibly made up
              during litigation  Scalia seems to defer to it. But response: someone has
              to make a post hoc determination agency or court- rather have agency
              do it because it is politically accountable institution as opposed to the
              court.
          o (Backing Scalia is not all about interpretation, etc. It’s much more a
              political policy-making decision, whatever comes out of their box than
              whatever comes out of your box).
Barron, Admin, Spring 2007
Grade: A-
One consequence of Mead is once Chevron doesn’t apply, court is doing independent
legal interpretation. If Chevron doesn’t apply because procedure wasn’t form enough for
Souter’s taste. Agency could come back having applied formal procedures? But court at
time 1 will still issue de novo legal instructions of the problem…when agency comes
back with decision based on more procedure, can it claim deference for a new decision
that is inconsistent with the judge’s earlier decision? Scalia in Mead dissent says you’ll
get a silly outcome where the judge will end up construing statute and then stuck with
interpretation forever for no good reason.

However in Brand X, court essentially solves problem by saying that Court can interpret
statute in time 1, but should be understood in a way as provisional. It’s the law, but if
agency comes back with a different interpretation after enough procedure, etc. the court
notwithstanding having issued an earlier interpretation should defer to the agency’s
construction.

Question 2 different circumstances:
   - Agency and informal adjudication: but it seems like under Mead they wouldn’t
       usually get Chevron deference (might, but general presume no), but since you
       didn’t have to use formal procedures, now if the agency at time 2 says they’d like
       Chevron deference and have decided on its own accord to use more formal, why
       should they get deference? If supposed to look to Congress’s intent, this decision
       doesn’t say anything about Congress’s intent
   - Congress has ability to choose though, so maybe Congress only wants deference
       to apply when formal procedures used

   So question of Court at Time 1 saying is this the best reading of the statute or the
   “clear and unambiguous” intent of Congress
   - so is this a precedent deciding Step One of Chevron?
           o Seems to be only if Court specifically decided
           o If not, then it should be open to argue a reasonable set of discretion

Overton Park (pg 989)
   - Highway going to rip through park in Memphis
   - Statute in place saying don’t rip through parks unless you can show a prudent and
      feasible alternative to ripping through park
   - Secretary here says there are no problems with that here so go ahead
          o Form of his decision looks like informal adjudication (could kind of call it
              rule-making but best thought of as informal adjudication)
          o Opinion says not rulemaking
          o So secretary just makes his judgment and then we’re in the land of
              informal adjudication
          o All these pretty easy somewhat after Vermont Yankee and Pension Benefit
              Guarantee Corp. (applies Vermont Yankee to informal adjudication)
                   So doesn’t need “formal findings” – but that’s cool, no obvious
                      flaw with what it did
   - Notice pre-Chevron
Barron, Admin, Spring 2007
Grade: A-
   -   How do we review an agency decision here
           o Threshold question of can review at all
                   Court interprets statute to assume extraordinary justification for
                       harming parkland, very aggressive pre-Chevron
           o So what does this review look like?
                   First were procedural requirements made?
                           Yes, informal adjudication so very little here
                   Did agency act within the scope of lawful delegated discretion
                           Are there facts that back up its judgment
                           So law review and fact review
   -   Arbitrary and Capricious? Under §706(2)(A)?
           o Look at “relevant factors”
                   Did you look at factors Congress announced?
                           “prudent and feasible”
                           Seems to be similar to did he act in the scope of his lawful
                               authority – doesn’t seem to be adding very much
           o Look at clear error in judgment
                   Common Sense Analysis or Quality of analysis fact review
   -   Reversed and remanded
   -   27 day district court trial
   -   Actually changes Secretary’s decision

State Farm
    - pg 1007, lays out what “hard look” or “arbitrary and capricious review” is
           o “rational connection between the facts found and the choice made”
           o Considered factors Congress did not intend
           o Failed to consider at all important aspects of problem
           o Offered explanation that ran counter to evidence (sounds a lot like
               fact review)
           o Rationale so implausible that it could not be ascribed to a difference
               in view or the product of agency expertise
           o “An agency must congently explain why it has exercised its discretion
               in a given manner”
           o Can’t just say there is “substantial uncertainty” as a justification for
               action
           o Not analysis continuous seatbelts in their own right, failed rational
               connection btw facts and judgment required to pass muster
    - Courts have a lot discretion for how seriously to take this test
    - (Still able to separate this from regular fact finding like Universal Camera, Allen
       Mack Sales but overlaps and bleeds into this inquiry. Think about 556/557 and
       you are engaged in fact review – substantial evidence, but still have to do this
       review after that!).
    - Facts: Went back a thousand times on whether to have airbag rule, finally
       promulgate passive restraints rule where you can either install airbags or
       detachable automatic seatbelts
Barron, Admin, Spring 2007
Grade: A-
          o Reagan becomes President running for clear deregulation and naming
             regulations that should be gotten rid of
                  His Secretary of Transportation gets in office and rescinds passive
                     restraint rule
   -   So how does Court go about performing arbitrary and capricious review here?
          o Reasons for this review is that this is incredibly costly thing to impose on
             a very important industry – say frankly that before they do an expensive
             rule look this are going to look closely into rule
          o Because you could just detach them, most people did, so the safety effect
             seemed pretty limited
                  But no study supporting this, in fact study said that it turns out
                     more people wearing belt
                          Agency is not convinced if people will wear the belt or
                             won’t wear the belt
                          Come up with some amount of usage – can’t prove that
                             they met the threshold (can’t prove they didn’t meet it
                             either)
                                  o They say we don’t know what will happen, so we
                                     don’t have to act – uncertainty is their reason for not
                                     acting
                                          (must be a policy reason behind it)
                                          Poisoning against effective regulation
                                              argument because people would lose
                                              confidence in their ability and have bad
                                              safety effects down the road
                                          Could spurn statutory override of this rule
                                          Also rule offers option between evidently
                                              safe (airbag) and possible unsafe (detachable
                                              belts), everything shows it goes towards not
                                              for sure safe regulation (detachable belts)
                                              instead of for sure safe one, so doesn’t really
                                              seem to do anything
          o Notice that the Court doesn’t take it apparent saying factors that Congress
             did not intend
          o Instead other three question
          o Failed to consider option of mandating airbag rule
                  But issue of couldn’t the court list endless possible options and
                     wouldn’t that screw everything up?
                  But Court could say you put this option on the table – we’re then
                     entitled to inquire as to why you didn’t consider it
                          (Barron: think about it as whether if this offered “notice”
                             under notice and comment, put to that same standard)
                                  o But agency never once put on the table mandated
                                     airbags period
          o Court agrees Agency can have some uncertainty but other belt problems
                  Didn’t consider option of non-detachable seatbelts!
Barron, Admin, Spring 2007
Grade: A-
                            But possibility of non-detachable seatbelts was not in initial
                             rule, here the Court is saying you should think of
                             something else
                           But Court counter-argument: Within the ambit of your
                             own logical process!
                           Agency could say you’re giving us incentives not to
                             consider these things
                           Court possible counter-argument to say if Agency defines
                             problem
                           Think of all the strategic incentive problems now
                           This seems different of scope of review – much more on
                             how you’re doing it, what’s your thought process, what are
                             you considering
                           Think about oversight hearings – budget cutting
                           President stopping bad regulation
                           Think about What is Congress saying with 706 review?
           o In State Farm was easy to get into court because organic statute provided
             that statute could be reviewable

   -   So where does this come from? Where do Courts get this authority to do this
       review?
           o Much different than making up reasons to support Congress, much more
              intensively investigating reasons

In general, you need “clear and convincing” evidence to preclude review, which really
means clearly discernable intent

Second big category goes to agency preclusion committed to discretion by law
   - Idea is there is no law to apply, agency has been given so much discretion so
      there’s no room to challenge

Political push to get a rule
    - internal people can point to cases like State Farm, saying you gotta take the extra
        step, gotta point to another round of review, gotta look at this other option.
    - State Farm tends to shift power in the agency away from the political actors in the
        agency
    - But can be a check against political people who want to deregulate

State Farm is rescinding a rule – should there be a different rule for this?
    - No coercive power being put against regulated agency
           o Supposed to think removing benefits is a lot less bad than imposing
               burdens
                    So nothing really bad is happening here so why should we be
                       removing
                    So analogy by the agency is failure to act, not acting, declining to
                       enforce
Barron, Admin, Spring 2007
Grade: A-
   -   Conclusion that recession should be treated like promulgation
          o In the Statute!
          o But Court also makes functionalist reasons
                   (in class) Legal landscape change argument: Agencies are
                     protecting the public interest argument so particular regulated
                     regime and rescission might affect them specifically. This is
                     important because Judge is here protecting the pubic
                          Barron: identical to move in SeaCoast Anti-Pollution
                             League, reading 556/557 to allow rights of parties to be
                             heard, who in that case was the general public
                             protecting something they didn’t own
   -   So Rescission should be the same as promulgation if Organic Statute treats
       promulgation in the same way it treats rescission

Hector v. Cheney (pg 1218)(US 1985)
   - Inmates suing FDA about regulating drugs
   - Reasons for no review
           o Statute precludes review
                   Almost always organic statute
                          Could preclude expressly
                          Difficult question arises in a situation without an express
                             bar to review
   - Say must be “clear and convincing evidence” of Congressional intention to
       preclude review
           o Don’t really mean that
           o Tip-off is that “implied preclusion” exists
           o Barron: What Court really means is an intention to preclude that’s “fairly
              discernable” in the statute
                   Big pro-review thumb on the scale

Block (pg 1188)(US 1984)
   - Milk handlers are order to pay a certain price to milk producers under milk
       marketing orders
           o This gets passed along to consumers
   - Challenge is on reconstituted milk prices being in one of the higher price
       categories
   - Statute doesn’t bar consumers from suing and doesn’t really say they can’t sue
   - Block doesn’t stop at original “clear and convincing”
   - Looks at the statute structure
           o Handlers can only get review if they exhaust administrative remedies
           o But no provision in the statute for consumers to exhaust administrative
              remedies
                   So Consumers have better reviewability authority than Handlers
                   Court says this doesn’t make sense! Every handler is also a
                     consumer, so exhaustion requirement becomes completely
                     ineffective if consumers can sue
Barron, Admin, Spring 2007
Grade: A-
                             Barron: good logic, here’s a counterargument – could
                              legally divide handlers and consumers, and handlers
                              already have ties to agency so they should deal with it first,
                              and consumers if they care so much so be allowed to go
                              faster
                                  o But could argue structure is so delicate that it’s
                                      important
   -   Here reviewability is denied on basis on implicit understanding of intention of
       Congress (If Congress wanted consumers to bring actions it would have
       written them in saying they had to go administratively first)
          o Somewhat in tension with this supposed strong presumption against
              denying judicial reviewability

Bowen
  - Medicare formula dealing with doctors
  - Agency determines this formula and announces by rulemaking
  - Statute provides that amount determinations can be reviewed by carriers but not
      by courts
          o Statute says if you’re challenging your award can’t go to Courts, have to
             go to carriers
                  (Possible Article III problem here, but issue not conceived in these
                     terms)
  - Here the Court is finding reviewability because of substantive judgment that
      amount determination is different than attacking the formula itself
  - Because amount determinations get carrier review, it would be crazy not to
      have anybody hear the claim about how we determine amounts in general
          o So want to have Court review
  - Idea they could have gotten all the procedures they need in the original rule-
      making itself
          o Londoner/Bi-Metallic
          o So need review of individualized determinations because they haven’t had
             the notice and comment opportunity

Principles to take
    - If express preclusion there’s preclusion, if express grants of review, review
    - Presumption in favor of reviewability, but can be overturned
    - Further from Block and Bowen
            o What kind of alternative procedures or protections are available
            o How are analogous parties are being treated under the statute
            o What kind of disruption to the reliability of the scheme would arise if
                review was allowed

APA §701(a)(2)
  - (a) This chapter (includes 701-706) applies, according to the provisions thereof,
     except to the extent that-
         o (2) “agency action is committed to agency discretion by law”
Barron, Admin, Spring 2007
Grade: A-


Webster v. Doe
  - “review is not to be had if the statute is drawn so that a court would have no
      meaningful standard against which to judge the agency’s exercise of
      discretion”
  - (Great non-delegation issues here)

So there’s no law to apply if there’s enough discretion?
    - But you could say there’s always law to apply even if you’re giving his discretion
    - Also you could say the Secretary has to make the decision, could make sure the
       actual secretary made the decision
    - Also could argue that the secretary was supposed to be approve “projects”, could
       argue whether or not there’s a “project”
           o Almost always going to be some legal limitation on the actor
           o But this has to be different than things subject to agency discretion by
               Chevron, otherwise no ambiguous statute things are subject to review
           o So there’s two categories of “agency discretion” here right?
                    And “committed to agency discretion by law” is a very narrow
                       category (barron: articulating precisely why it’s a narrow category
                       is hard)
                            Maybe its because the statute seems to identify the agency
                               actor as the person who gets to make the final judgment in
                               a very strong way
                                   o As in “he deems” in Webster v. Doe
                            Another way to think about it like Scalia’s dissent in
                               Webster v. Doe
                                   o This becomes a way of Courts to bring in lots of
                                       common law doctrines
                                   o So is this just a way of saying this just too
                                       delicate a matter for judiciary to mess with
                                   o So much more likely to read matters in national
                                       security area
    - But how could there be an intelligible principle here? (non-delegation!)
           o To answer this undermines the “no law to apply” idea
                    (Barron: also President’s residual national security authority in this
                       case)

Heckler v. Chaney (pg 1218)
   - Agency decision that’s committed to discretion by law here is decision not to
       enforce
   - Way of getting away from presumption for reviewability
           o Like something else in APA that not reviewability
   - Various death row prisoners objecting to death serum because it’s not FDA
       approved (effective but not safe)
           o (FDA regulates serum in killing of animals here)
   - Bring to FDA saying please enforce existing mis-branding rules
Barron, Admin, Spring 2007
Grade: A-
           o Demand enforcement
   -   Agency declines to do so
           o Notably doesn’t argue it doesn’t have the legal power to do so, or that
              the rule doesn’t apply in this situation
                   Agency probably wants to not narrow their discretion in other
                      area
                          And doesn’t want to give an explanation since they already
                              regulate Dog-killing serum
   -   Agency says we get discretion on enforcement
           o Non-reviewable
           o Although gives reasons anyway
   -   Court concludes there is no reviewability here
           o Non-enforcement shouldn’t be review
                   Really compares to prosecutorial discretion in a criminal context
                   No coercion, so no worried about harming individual rights
                   Executive Power Notions
                   Also what criteria would we use to review anyway, how would a
                      Court even review this
   -   Differences between resinding and adopting rule
           o Difficulty of no check if you decide to enforce one way and not enforce
              the next. Much more easily reversible than enforcing and not checking a
              rule
                   But non-enforcement decision is discrete but rescission is on an
                      overall basis (although Hector is pretty general).
                          Case seems to turn on this point, says there are
                              exceptions to non-reviewability of non-enforcement
                                  o When Agencies reasons for not enforcing relies
                                      on a claim on statutory authority not to enforce
                                      (much more rule-like, much more reviewable)
                                  o Second reason Court gives is a general policy of
                                      systematically not reviewing a certain category
                                      of things
                                  o (Barron: these exceptions MATTER, Courts use
                                      these)
                   Think of the danger of incentives here
                          Could eliminate rules this way
                          Barron says use “honest assessment of other priorities”

My idea of how this isn’t like prosecutors
          o Also think about the greater incentives here
                  My idea isn’t this a little way of getting around notice and
                      comment to switch rules? Because you’re just going to put out
                      more rules?
                  So really the only reason to rescind rules is to make the next
                      people go through the political process of promulgating them again
                            (Unless you change the rule through filing a new rule)
Barron, Admin, Spring 2007
Grade: A-


Mass v. EPA (Handout)
  - Not promulgation or rescission, not rules in place and not enforcing it
  - Here its I’ve done nothing, you’ve asked me to promulgate a rule, I’ve refused to
       do it, doesn’t that get reviewed
           o (Think: More inactive about not enforcing a rule, because its not like we
               even issued the rule in first place)
  - Idea you could say you’re in an exception to enforce, but don’t make argument
       but agency also makes argument saying we don’t want to enforce rule
  - General/Particular distinction here
           o If you don’t enforce rule, you’re only affecting one party
           o The idea of discerning harm because easier as we can tell you’re enforcing
               a broad rule here
  - In contrast to non-enforcement, Agencies refusals to do rule-makings are
           o Less frequent
                    Well has to be, because non-enforced cases is huge
                    But what if this is a very large, number, then you have to deal with
                       everything
                             But DC Circuit ruled on this in 1987 and it hasn’t brought
                                agencies to a halt
                    More apt to involved legal instead of factual analysis
                    Subject to special formalities including a public explanation
  - So non-promulgation is more like rescissions that non-enforcement
           o But review much more deferentially than rescissions
  - Why does EPA say it doesn’t promulgate a rule
           o Unwise for foreign policy regulation
           o So since regulation would be unwise – we have no decided why its
               harmful
  - So two legal arguments for EPA
           o No legal power to regulate greenhouse gases
                    Court says wrong, definition of air pollutant is so capacious
                             Scalia isn’t saying Agency clearly can’t regulate, says its
                                ambiguous on this question so gets Chevron deference
                                    o But weird to give agency a discretionary judgment
                                       that you don’t have authority! That’s weird!
                                       Because then you wouldn’t have authority to make
                                       the judgment
                                    o Barron: Key point of Stevens in MCI construing
                                       statute not to have Chevron deference, but more
                                       open-ended power to regulate within the bubble
                                       of regulation, so don’t lose power by choosing to
                                       not exercise authority
                                            So Chevron doesn’t seem to go to if you
                                               have the power
Barron, Admin, Spring 2007
Grade: A-
                                          (Barron: so with Chevron you can always
                                           look at policy reason, we’ll defer to it, but
                                           you have to have reason)
          o Haven’t determined if its air pollutant because it would be unwise to
            regulate if we determined it was
                Stevens reject this because says only grounds you can give are
                    scientific evidence
                         Could conclude either way, or could conclude its so
                            uncertain and not making a finding
                         Until you are willing to say that you aren’t operating within
                            the bounds of the statute
                                o Scalia goes nuts here
                                         Says they say its uncertain but they don’t
                                           really, just say others say its uncertain
                                         There’s nothing in statute that demand the
                                           agency give scientific reasons for not
                                           coming up with a determination – just has to
                                           make judgment regarding health and safety
                                                But Stevens counter-argument that
                                                    have to give these reasons that EPA
                                                    is supposed to give scientific
                                                    reasons
                                                So what’s really dividing Scalia and
                                                    Stevens is the big question of
                                                    WHO’S AGENCIES ARE
                                                    THESE?
                                                        o Stevens thinks this guys job
                                                            is only to the be the EPA
                                                            head and must have EPA
                                                            reasons for everything
                                                        o Scalia is thinking that the
                                                            EPA head is a general
                                                            member of the
                                                            administration
                                                                 But crazy but
                                                                    Stevens got this
                                                                    going in Chevron by
                                                                    saying these are
                                                                    executive actors
                                                                    accountable by
                                                                    executive branch
                                                                    political constructs

				
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