L.A.P.P. Exam Flowchart Britta Liukonen page I. Constitutional Power A. Congress gets authority from Art I and governs things like... 1. interstate commerce Art I. §8 2. general welfare Art I. §8 B. is the law K'al? SCt says presumption it's constitutional (b/c Legis & Prez passed it); must "preclude assumption" that doesn't rest on any rational basis (Carolene) 1. 14th amend equal protection (MN v Cloverleaf): laws do not have to equally apply; only show the legis had "rational basis" to do what they did 2. 5th amend due process: rational basis + 'beyond debate' burden 3. retroactive: rational basis + 'beyond debate' burden C. How the SCt decides if Congress was w/in its power in making a law (all of the following bases are presumed) • K'al power • problem worth fixing • goal • will means fix problem; do means comport with PP? • moral: if you want to change a law, petition the Legislature, not the judiciary II. Constitutional procedure A. Bicameralism: majority vote of both houses B. Presentment III. Statute... A. Canons of Construction 1. establish there is an ambiguity (that gives Ct power to construe statute) 2. elements of PF coa 3. apply COCs a) Ct's job: find legislative intent b) apply COCs i) construe statute as a whole ii) ordinary meaning iii) ejusdem generis/associated words doctrine iv) title and preamble = evidence v) civil/remedial/non-penal statute = broad construction vi) criminal/punishing/penal statute = narrow construction vii) in pari materia: no implied repeal of statutes viii) if irreconcilably in conflict, more recent governs ix) not retroactive unless strong support x) avoid absurd results xi) "spirit of the law" -can only be used if we know the legislative intent, but the words don't allow us to apply the statute as it should be applied c) use Legislative history i. is not legis intent, but only evidence; never trumps express language of statute ii. minority view of one house, only -no bicameralism iii. did they really read the report 4. argue and make decision 5. end with the words of the statute a) language of statute "implies" what the legislature intended b) do not say there is better law; say this is what legis intended! IV. The Agency: look at enabling legislation (agencies are creatures of statute) 1. K: Prez appoints officers w/advice/consent of Senate (Art II §2) 2. Decision of 1789: Prez has implied power to fire b/c agencies help him faithfully execute the laws 3. Congress decides how the agency works: 4. how many people 5. scope of agency's power 6. budget 7. how they function A. executive or independent agency? look at enabling legislation 1. executive: a) no term b) fire at will (decision of 1789) c) head: Secretary 2. independent: a) set terms (SCt held "set term" implies "for cause" firing; Weiner) b) for cause firing i. 'for cause' firing is Constitutional: A) Pres has power to appt, but not unfettered power to remove B) can't take core exectuive fx's from Pres Morrison c) head: board What branch's powers does the agency have? (This is not a separation of powers problem!!!) B. do they have rulemaking (legislative) power? is it constitutional? 1. non-delegation doctrine: can't delegate away essential legis functions 2. delegation doctrine: Congress can delegate legis fx's to an agency w/in limits a) objective (goal) ex) eliminate pollution b) method of acheiving the goal (what kind of law to make) ex) rules prohibitng manufactur of certain cars; investigate emmissions; prosecute c) standard (guide agency determination of if it has met its goal) ex) feasible rules 3. does Congress have the power to make the rule (if not, they can't delegate it) a) problem b) worth fixing c) this will fix it C. were they given executive power? is it Constitutional? 1. of course, this is the executive branch D. Judicial power? is it constitutional? (in non-art III cts) 1. Union Carbide: seemingly private right intricately integrated in public regulatory scheme a) public rights (Gvmt v. Private Party; benefits; licensing; coercive regulations like OSHA b) seemingly private rights intricately related to public regulatory scheme (necessary for the scheme to work) note: so far, all have at least limited Art III ct judicial review 2. Bench Trials; 7th amend rt to trial by jury of peers exists for... a) c/L coa's b) that existed in 1791 c) or analogous coa existed at c/L in 1791 IV. is the APA satisfied? A. does it apply to this agency? 1. authority of the Government of the US 2. except: • congress • courts of US • governments/territories/possessions of the US • court martial system B. what kind of action is this? 1. rule making/rule [executive power] (making/amending/repealing) a) make policy (already pursuant to prescribed policy: methods/objectives/standards) b) rates/wages, etc 2. adjudicating/order [legislative and judicial power] process of formulating an order: final disposition (when the agency has completed its process) of an agency matter look at the enabling legis to find out if final a. licensing/license (licenses); this is adjudicating/ordering and must follow order/adjudication rules b. other final dispositions c. never rule making (expressly excluded); rule making and adjudicating are mutually exclusive C. what rules must agency comply with? 1. when rule making (§553) a. applies to all except i. military or foreign affairs; matter re: agency personnel; public property ii. *loans/grants/benefits, or contracts • but §552 applies to all; "notice rulemaking" • substantive rules and polices adopted must be published in the Federal Register • notice rule-making: a rule is not a law unless published in Federal Register (but that's all you have to do and it's law) b. §553: notice & comment rule-making i. 1st Notice 1) proposed rule(s) 2) cite the legal authority to make the law (enabling legis) 3) invite comment ii. Comment Period 1) submission of data, views (including legal arguments), arguments 2) hearings (at agency's option -not req'd) 3) agency must fully consider the relevant data/views/args iii. 2d notice in Federal Register 1) parts adopted 2) concise general stmt of its basis and purpose 2. when adjudicating (§554) a) §554 applies to hearings: (not all adjudications are hearings) i. req'd to be "on the record after opp for agecy hearing" or ii. if §554 is specifically cited b) hearings (§556) i. if §554 applies, §556 applies c) appeals (§557) i. if §556 applies, §557 applies * §554 + 556 + 557 = "formal adjudication" (a trial; a record hearing) [don't need to know details/procedure on exam] V. Construction (applies when agency construing & the agency in charge of impliementing statute) 1. has Congress directly spoken to the precise issue? (will seldom/never be in ct of law if ambiguous!) 2. if ambiguous, is the agency construction of the statute permissible/rzbl? yes: ct bound by it effect: exec branch is binding the judiciary on legislative intent this even surpsaases stare decisis (when ct accepts agency interp, then later the agency changes its interp, the ct must then affirm that interpretation)