Saturday, May 17, 2014

Admin Law Outline - Fall 2011 – William Araiza - Brooklyn Law School

Admin Law Outline - Fall 2011 – William Araiza
Textbook:
Administrative Law: Cases and Materials, by Koch, Jordan, & Murphy (Lexis 5th ed.).

ADMIN: GOALS, POWERS, AND CONSTITUTIONALITY
 
INTRODUCTION
1)      Role and Function: The government’s response to public demand à Congress creates agency to:
i)        Regulate private conduct or conduct of governmental bodies
ii)      Administer entitlements
iii)    Everything else (e.g. INS, IRS)
b)      The course deals with what happens when agencies take on the traditional power of the 3 branches of government:
(a)    Rulemaking (legislative)
(b)   Enforce rules (executive) 
(c)    Adjudication (judicial)
(2)   Definition: §551(1):
(a)    Departments (Treasury, HUD, Interior, Labor)
(b)   Independent Agencies (FCC, FTC, NLRB): have boards, rather than sole agency heads so they won’t change w/ political whims. Also have fixed terms – cant remove w/o cause.
2)      Scope of Authority
a)      Congress creates agencies through the authorizing statute specifying the goals of regulations and powers/authority of the agency
b)      Agency must always have a statutory grant of power – ALWAYS inquire whether the agency is w/in power – the key to AL is knowing the limitation of A authority (i.e. applied Con Law) - statutory grant will mark the limit of the agency’s power.
i)        Must also have explicit power to promulgate regulations
c)      Purpose: expertise, wont change policy w/ whim of public opinion
d)      Power check
i)        Congressional control à write narrower statute; cut budget; overturn agency action by means of statute (sometimes not easily done.)
3)      Pros/ Critique:
a)      Pro: flexible, expertise, specialized staff, limited are of public policy, result is tailored regulations (efficient procedures )
b)      Cons: unchecked power, governs all tiers of government
 
4)      Structural Problems
a)      Problem#1: consumers / public not represented, e.g. FCC supposed to promulgate “efficient” regs along w/ input from industry players (not consumers)
b)      P#2: work for regulated parties rather than the public, e.g. United Air can offer or refuse to hire the Civil Aeronautics Board (an A that regulates the mkt for air travel by regulating rates for flying) in the private sector if reg’trs make barriers to entry difficult to routes for United (i.e. cushy r’ships with reg’trs), e.g. certifiers for power plants less interested in environmental factor b/c in bed w/ industry, e.g. Boeing v. NLRB re move to SC (Obama – “I don’t control NLRB”).
 
5)      Solutions to Problems: Political Controls, Control over Personnel, and Congressional Review
a)      More judicial scrutiny
i)        But, then 1965 – 1980 = smaller judicial role:
(1)   Overton Park – Deference to administrator re hwy
(2)   Nova Scotia – deference re procedure in RM’g
(3)   Assn of Data Process – Standing
b)      And some Formal political control:
i)        Ex: Congressional review, e.g. must submit new rules to Congress for review (only invoked 1x)
ii)      Ex: legislative authorization for appropriations (e.g. Robertson v. Seattle – pulled funding to protect owl from logging upheld)
c)      And some Informal political control
i)        Ex: investigate implementation of statutory programs, congressional demands for info / reg’try reporting.
d)      But, to make system work, President gets more control:
i)        Morrison - Appointment / Removal Power
ii)      Chadha – no legislative veto
e)      And liberalized standing – Lujan v. Defenders
f)       And deference to Agency (A1) courts – Chevron
g)      And Efficiency = greater focus on cost/benefit analysis of reg’tn now req’d (e.g. Exec Order 12,866)
h)      Sunshine / transparency on info used to make regulatory decisions
i)        Open up the rulemaking process
j)        Citizen suit provisions
 
a)      Roles of EPA:
i)        Promulgate Clean Water Act (CWA) reg’n
ii)      Adjudication (Adj) of dispute à some A3 scrutiny (Schor), but EPA is an exec branch
iii)    Create procedural and evidence rules
iv)    Investigate, prosecute, report (core exec fxns) à implicates federalism issues; some allocation of responsibility to local agencies / branches; witness often an EPA ee, not a 3P tester
b)      Issues / problems: 1) Separation of powers (e.g. Daffy Duck v. Elmer Fudd prize fight where referee is a duck and audience members are ducks), 2) Level of discretion and 3) Punishment authority, BUT this is highly EFFICIENT and deference is appropriately given to EXPERTS.
i)        Raises question: Can we conceptualize Agency action (AA) as fundamentally legitimate despite SoPowers issues.
ii)      Yes, if:
(1)   It flows from democratic choices and appointments of Pres / Cong = POLITICAL ACCOUNTABILITY
(2)   A’s act only after fair process = PROCEDURAL FAIRNESS
(3)   A’s have technical expertise = EXPERTISE
c)      Solutions:
i)        Agency divisions / separation of functions
ii)      judicial review of agency action (e.g. “presumptively reviewable)
iii)    Stronger political branch controls (e.g. Congress can overrule or repeal an agency rule)
(1)            CONSTITUTIONAL AND POLITICAL BRANCH RESTRICTIONS ON AGENCY ACTION:
1)      Non-Delegation: Article I vests “the legislative power of the United States” in Congress.
a)      2 views as to How can agencies draft regulations that look and act like statutes?
i)        Technical expertise: (legislating implies a value choice à expertise DM, is not legislating in the same sense
(1)   Rationale for independent agencies – justification
ii)      Congress has made the basic policy choice – agency is just “filling in the blanks” (Congress delegating – but still ultimately has control)
(1)   Rule: Intelligible Principle standardàdiscernible standards in statute?
(2)   Thus, though it carries little bite, Congress grants broad discretion to agencies. A statute will never be struck down for NDD reasons BUT it acts as a negative magnetic field and pushes Congress away from extremely broad delegations.
b)      Goals of NDD:
i)        Improve social policy made by Congress
ii)      Prevent delegation of power given explicitly to Congress
iii)    Forces Congress to write a reg’n that cabins agency discretion and gives judiciary a spectrum for authority given (judicial check)
 
2)      Agencies As Legislators
Ø  Whitman v. American Trucking: The EPA revised national ambient air quality standards (NAAQS) under the §109(b)(1) of the CAA. Several states challenged the new promulgated rules, questioning whether 6109(b)(1) of CAA delegates legislative power to the EPA?
o   Held: no NDD problem and 109 disallows factoring in costs in setting air quality; (in dicta?), states that agency nor courts should resolve NDD issues.
o   Rule: Congress has “all legislative powers,” but the Constitution does not permit “delegation of those powers.” Under previous decisions, therefore, “when Congress confers decisionmaking authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’
o   App: Strictly interpreting the language of §109(b)(1), the Supreme Court read the statute as “requiring the EPA to set air “requisite” quality standards–not lower or higher than is necessary–to protect the public health w/ an adequate margin of safety,” and concluded that the scope provided by Congress for the EPA was “well within the outer limits of our non-delegation precedents.”
§  Loosening the delegation doctrine à statutes need not prove a determinate criterion (for saying how much of a regulated harm is too much) to avoid delegating legislative power
§  CoA suggested remanding to A for interpretation of “air quality” but Scalia says: not role of A to cure its own NDD problem, e.g. by limiting own discretion. Purpose of NDD is to prevent Cong from writing an overly broad stat and delegating power citizen have given to Cong, not unelected A’s.
§  Souter agrees, stating: allowing A to cure violation of NDD by narrowing reg’n 1) puts A in legislating role when they are technocrats and 2) puts courts in legislating role by evaluating A interpretation of unintelligible principle.
 
3)      Agencies as courts
a)      Adjudication by a non-article III court: Article III vests judicial power in SCOTUS and in inferior federal courts.
i)        Differences between Article III judges and ALJs:
(1)   Article III: chosen w/ advice and consent of Congress – and have tenure and salary protections à ALJs do not *controversy about political insulation of ALJs
ii)      Test to determine whether the assignment of adjudicatory functions to an agency violated the separation of powers: BALANCING/pragmatic test
 
Ø  Northern Pipeline Construction v. Marathon Pipe Line Co.: P (Northern) filed a petition for reorganization under Chapter 11 in US Bankruptcy court. 2 months later Northern brought suit in bankruptcy court against D (Marathon) for breach of contract, etc. D moved to dismiss on the ground the Bankruptcy Act unconstitutionally conferred Article III powers on judges who lacked career protections and political independence Art. III judges. SCOTUS (plurality) stressed:
o   (1) important of judiciary freedom from political pressure – the life tenure and protection against diminution of salary helped this – which non-Art. III judges lack;
o   (2) public v. private rights distinction (non-Art. III, i.e. martial, deal w/ public): matters which arise “between the government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments” – in contrast private is between to private parties.
o   Congress has discretion in prescribing the manner in which rights created by its own statute may be enforced – no discretion in altering the adjudication rights of which it has not created by statute à Congress has power to assign certain matters to non-Art. III tribunals – it is limited to rights created by federal statute and is narrower than Art. III
o    
Ø  *CFTC v. Schor: Schor brought suit against his broker, who then filed a counterclaim (private claim but ancillary to Schor’s). The broker prevailed and Schor challenged CFTC’s authority to adjudicate the counterclaim as violated Art. III. The limited jurisdiction that CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not contravene separation of powers principles or Article III.
o   Look to congressional intent (as opposed of arbitrarily avoiding possible constitutional conflicts): create more efficient means of adjudicating trade disputes
o   Also, right to be heard by an Art. III tribunal is not absolute – can be waived, which Schor did w/ respect to Conti’s counterclaim and election to be hear in front of ALJ
Ø  Schor approved broader use of Article I courts by expanding the test to include more than private v. public rights distinction
iii)    Balancing test – weighs the threat to Art. III values against the concerns that led to the assignment of adjudicatory authority to the agency.
(1)   Particularized area of law: particularized area of law closely related to a fed regulatory scheme and doesn’t cut across an entire class of traditionally judicially cognizable casesàscope and type of agency’s authority
(2)   Court enforcement: private rights decision enforceable by Art. III - Parties to a private action should retain freedom to choose Art. III
(3)   Non-Art. III should only have powers necessary to resolve disputes w/in juris – not pure judicial power (i.e. write of habeas or jury trial)
(4)   Public v. Private à still a factor.
(5)   Congress’ motive in giving adjudicatory power?: reduce Art. III power or legitimate reason (i.e. expertise, judicial economy)
 
4)      Political Branch (Congress, Exec) Control of Delegated Power to Agencies
a)      What makes the agency’s legitimate? Three factors
i)        Expertise
ii)      Political Accountability
iii)    Procedural Fairness
b)      As one factor is more important, the others are less so (i.e. some mutual exclusivity).
 
c)      Methods of Congressional Control: ultimately control what agencies do by giving them less statutory authority – reduce amt. of power delegated to agency (still agencies often have a lot of discretion)
i)        Legislative Veto: Congress enacts a law delegating broad responsibility to an agency – but reserves for itself the right to reject any agency action taken pursuant to that authority.
 
Ø  Chadha v. INS: Majority’s analysis – unconstitutionalb/c it was considered a legislative action, b/c it altered legal rights (without bicameralism and presentment) and duties, it had to go through bicameralism and presentment)
o   Why does Congress have to endure bicameralism and presentment, but not agencies, when both are making laws? APA provides procedures for review of procedural fairness, appropriate deliberations and rationality. Gen’ly cant be ___, aside from toothless constitutional standard of rational basis).
§  NEED bicam and presentment to ensure fairness and deliberation
o   Chadha result: all legislative vetoes were struck down
o   Agency has more ability to create coherent policy (Congress cant cherry-pick regulations)
 
d)      Other Methods Of Legislative Control:
i)        Write narrow statute (make specifications in intelligible standard)
ii)      Overturn agency action by statute (through process of bicam and presentment)
iii)    Cut agency budget (exert control and influence à goes through bicam, presentment and exec approval)
iv)    Confirmation proceeding: agency heads are confirmed by Senate – opportunity to review and express opinions about certain agency initiative and exchange commitments
(1)   Constitutional b/c not binding
v)      Informal oversight: Congress can call bureaucrats to testify and ultimately review agency explanation of certain actions – no formal legal effect but can prompt Congress to enact a restrictive statute

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