Administrative Law

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nickwar
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Re: Administrative Law

Postby nickwar » Sat Dec 17, 2011 12:15 am

It's sad that I have no idea what the answer to your question is and I did quite well on my admin law exam -- our exam wasn't the least bit picky on the issue.

Guess that's law school for you.

nickwar
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Re: Administrative Law

Postby nickwar » Sat Dec 17, 2011 12:28 am

ph14 wrote:Okay i'm really confused again. Can someone give me the skinny on when we use: Chevron deference, Skidmore weak deference, substantial evidence, de novo, and arbitrary and capricious?

Does anyone have this in their outline they can juts send me?


Your question is the real difficulty with Admin law. Even the courts can't seem to get it right.

Our class generally taught:

Constitutional issues and procedural issues: De novo review

Informal rules (policy statements/interpretive rules): Usually Skidmore, but there was one case that suggested these could be subject to Chevron deference if certain factors were present.

Substantial evidence -- I was under the impression that only formal _____s were subject to substantial evidence. Ie, must have had a hearing on the record in order for a court to review the agency's reasonableness of interpreting the record.

For the purpose of my exam (this worked out for me) -- I learned A&C review for the situation where an agency announces its rule/adjudication/whatever and either a) completely ignored an important part of the issue (seatbelt case) or b) did not even mention what standard it relied on to make its decision (we learned a couple immigration cases here). Note -- these were the main cases we concentrated on so I took a gamble and it paid off.

Like I said, I took a bit of a gamble in my studying on this test (it was my 4th test in 5 days after a quick turnaround -- it was an 8am test after a 1pm test the previous day) and it luckily paid off -- there's certainly more around each topic.

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 17, 2011 1:57 pm

I. Non-Delegation Doctrine (Legislative Power)
a. Current rule: a statute delegating power to an agency could be upheld if it established an “intelligible principle” to guide the exercise of that power – J.W. Hampton and affirmed in Whitman
i. Is there a delegation of legislative power? If so:
ii. Is there an “intelligible principle” to guide the exercise of that power?

The above is basically all I need for exam analysis steps for non-delegation right? I have some other stuff on my attack outline (what the court invalidated and what they upheld recently), but in terms of the IR part of IRAC, that's it, right?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 17, 2011 3:38 pm

Also, can anyone help me figure out what exactly the test is to decide if an agency's adjudicatory powers are consistent with the constitution. As of now, I have Brennan's 3 distinctions from Northern Pipeline, and then if it doesn't fit in there, you go to the Schor balancing test. Is there more to this?

ETA: basically, you balance via Schor when the right being adjudicated is not clearly public?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 17, 2011 4:52 pm

G. T. L. Rev. wrote:
beach_terror wrote:I. Non-Delegation Doctrine (Legislative Power)
a. Current rule: a statute delegating power to an agency could be upheld if it established an “intelligible principle” to guide the exercise of that power – J.W. Hampton and affirmed in Whitman
i. Is there a delegation of legislative power? If so:
ii. Is there an “intelligible principle” to guide the exercise of that power?

The above is basically all I need for exam analysis steps for non-delegation right? I have some other stuff on my attack outline (what the court invalidated and what they upheld recently), but in terms of the IR part of IRAC, that's it, right?

Would not be bad to add Justice Scalia's view that "legislative" power can never be delegated. Of course, this just begs the question: what is "legislative" and what is properly considered "executive"?

True, for the sake of beefing up my analysis it wouldn't hurt. Is this the debate between Scalia and Stevens? Stevens basically just says to call it what it is, agencies wield legislative power now but as long as it's delegated w/ an intelligible principle it's not "inherently unconstitutional." Is Scalia's "legislative power" power that doesn't have anything to do with judicial or executive powers?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 17, 2011 9:32 pm

Despite everyone being done with their admin final it seems, I'm going to continue posting in here anyways.

Essentially, the test for Presidential removal power is now the Court's statement in Morrison that "the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." So likely, [deleted] conclusion is still valid and any other purely executive officer because they don't have any functions that call for their isolation from the President's oversight. Cases involving administrative officials are when you get into the balancing more. Look at the legislative history and the regulatory framework for the agency and balance it against the President's need to control the discretion pursuant to his duty to make sure the laws are faithfully executed.

Make sense?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 17, 2011 11:02 pm

a. Universally interpreted as the “stigma plus” test – Under this test, loss of some tangible gov’t benefit is not protected by DP (untenured gov’t job) plus official stigmatization, which is not protected by DP, adds up to ‘stigma plus’ which is protected by DP

Nice addition, Supreme Court.

delusional
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Re: Administrative Law

Postby delusional » Sun Dec 18, 2011 12:10 am

beach_terror wrote:Despite everyone being done with their admin final it seems, I'm going to continue posting in here anyways.

Essentially, the test for Presidential removal power is now the Court's statement in Morrison that "the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." So likely, [deleted] conclusion is still valid and any other purely executive officer because they don't have any functions that call for their isolation from the President's oversight. Cases involving administrative officials are when you get into the balancing more. Look at the legislative history and the regulatory framework for the agency and balance it against the President's need to control the discretion pursuant to his duty to make sure the laws are faithfully executed.

Make sense?

Not done yet, and I have a question about Morrison. Is the "impeding the president's ability" only a factor because they are investigating the executive branch? Because isn't any other investigation theoretically the president's job, and therefore he should need absolute power, like in [deleted]?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sun Dec 18, 2011 12:17 am

delusional wrote:
beach_terror wrote:Despite everyone being done with their admin final it seems, I'm going to continue posting in here anyways.

Essentially, the test for Presidential removal power is now the Court's statement in Morrison that "the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." So likely, [deleted] conclusion is still valid and any other purely executive officer because they don't have any functions that call for their isolation from the President's oversight. Cases involving administrative officials are when you get into the balancing more. Look at the legislative history and the regulatory framework for the agency and balance it against the President's need to control the discretion pursuant to his duty to make sure the laws are faithfully executed.

Make sense?

Not done yet, and I have a question about Morrison. Is the "impeding the president's ability" only a factor because they are investigating the executive branch? Because isn't any other investigation theoretically the president's job, and therefore he should need absolute power, like in [deleted]?

Not entirely sure what you're getting at here. The "impeding the president's ability" bit is part of the test because, at the end of the day, the POTUS is responsible that the laws are faithfully executed. However, since delegations are permissible, if the POTUS has too much power then he can influence them through threatened removal, which violates the separation of powers. So the Court just balances the President's need against the congressional scheme. TBH, this is one of those areas where, since the regulatory state is clearly unconstitutional, there can't really be an easy answer. Might have that wrong though.

Hopefully that was somewhat responsive. If not rephrase and maybe I can help.

delusional
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Re: Administrative Law

Postby delusional » Sun Dec 18, 2011 12:23 am

beach_terror wrote:
delusional wrote:
beach_terror wrote:Despite everyone being done with their admin final it seems, I'm going to continue posting in here anyways.

Essentially, the test for Presidential removal power is now the Court's statement in Morrison that "the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." So likely, [deleted] conclusion is still valid and any other purely executive officer because they don't have any functions that call for their isolation from the President's oversight. Cases involving administrative officials are when you get into the balancing more. Look at the legislative history and the regulatory framework for the agency and balance it against the President's need to control the discretion pursuant to his duty to make sure the laws are faithfully executed.

Make sense?

Not done yet, and I have a question about Morrison. Is the "impeding the president's ability" only a factor because they are investigating the executive branch? Because isn't any other investigation theoretically the president's job, and therefore he should need absolute power, like in [deleted]?

Not entirely sure what you're getting at here. The "impeding the president's ability" bit is part of the test because, at the end of the day, the POTUS is responsible that the laws are faithfully executed. However, since delegations are permissible, if the POTUS has too much power then he can influence them through threatened removal, which violates the separation of powers. So the Court just balances the President's need against the congressional scheme. TBH, this is one of those areas where, since the regulatory state is clearly unconstitutional, there can't really be an easy answer. Might have that wrong though.

Hopefully that was somewhat responsive. If not rephrase and maybe I can help.

What I mean to suggest is, Shouldn't the "not impeding the president" rationale only apply in a really narrow situation, such as when the executive branch is under investigation? Because any other investigation, or any other purely executive function, is the president's job and its delegates serve at his will. Therefore, the only time an executive function is not specifically the president's job, is investigating himself (or those close to him).

delusional
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Re: Administrative Law

Postby delusional » Sun Dec 18, 2011 12:29 am

Also, here's some things I've been trying to figure out.

What is Skidmore? Is it simply that when agencies don't have Chevron deference, they still have expertise deference, if they give good advice?

If Nova Scotia hadn't failed on the "statement of basis and purpose" wouldn't it have failed on Chenery 1 or arbitrary and capricious also?

What stops agencies from doing everything via informal adjudication? Or, at the very least, a helluva lot more via informal adjudication?

If the APA was read to require a formal hearing from the words "hearing" in a organic statute, is it arguable even post Chevron and post Dominion Energy that the agency is attempting to interpret the APA rather than the organic statute? (I know there's a circuit split on Dominion Energy type stuff - is this it?)

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sun Dec 18, 2011 12:47 am

delusional wrote:If the APA was read to require a formal hearing from the words "hearing" in a organic statute, is it arguable even post Chevron and post Dominion Energy that the agency is attempting to interpret the APA rather than the organic statute? (I know there's a circuit split on Dominion Energy type stuff - is this it?)

The Dominion Energy split, IIRC, is that some circuits post-Chevron read Florida East Railway as what requires or doesn't require a formal adjudication (this was a rulemaking case), other circuits defer to the agency's interpretation of the statutory language as to what it means in light of the APA.

I don't think the APA is ever really "interpreted" like you're suggesting. The agency is interpreting what its statute says (e.g. a "really cool hearing") in light of the APA's "on the record" requirements. Dominion Energy deferred because legislative history isn't conclusive. So, AFAIK, unless the organic statute mirrors the APA, if the circuit uses Chevron deference then basically the Agency's interpretation will win out as long as it satisfies Chevron.

God damn, this class is confusing.

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sun Dec 18, 2011 1:32 am

nickwar wrote:Substantial evidence -- I was under the impression that only formal _____s were subject to substantial evidence. Ie, must have had a hearing on the record in order for a court to review the agency's reasonableness of interpreting the record.

SE applies to adjudications that are subject to 556/557 or otherwise reviewed on the record of an agency hearing provided by statute (adjudication)

A&C applies to oral/written hearings that fall short of the 556/557 requirements (adjudication)

If you read Data Processing, Judge Scalia concludes that SE = A&C.

pdiddy89
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Re: Administrative Law

Postby pdiddy89 » Mon Sep 03, 2012 12:41 pm

smittytron3k wrote:ph14, are you in Admin or LegReg? I always assumed you were in LegReg based on the questions you were asking (i.e. about Benzene and American Trucking).

FWIW, mine is organized (per the syllabus) as:

Adjudication
Agency Interpretations of Law
Oversight of Agency Policymaking
Judicial Review of Agency Action


I think everyone ought to know that the above poster is not a real person.

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kalvano
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Re: Administrative Law

Postby kalvano » Mon Sep 03, 2012 2:35 pm

pdiddy89 wrote:
smittytron3k wrote:ph14, are you in Admin or LegReg? I always assumed you were in LegReg based on the questions you were asking (i.e. about Benzene and American Trucking).

FWIW, mine is organized (per the syllabus) as:

Adjudication
Agency Interpretations of Law
Oversight of Agency Policymaking
Judicial Review of Agency Action


I think everyone ought to know that the above poster is not a real person.



Solid necro.

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beach_terror
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Re: Administrative Law

Postby beach_terror » Tue Sep 04, 2012 1:47 pm

What in the fuck did I learn in admin last year. Reading this thread is like reading a foreign language.

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ph14
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Re: Administrative Law

Postby ph14 » Fri Apr 19, 2013 3:53 pm

Figured it out.
Last edited by ph14 on Sun May 05, 2013 1:52 pm, edited 1 time in total.

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JamMasterJ
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Re: Administrative Law

Postby JamMasterJ » Sun May 05, 2013 12:36 pm

bit of a necro, but can anyone tell me how you approach a question where an agency is making an interpretation of law (Chevron), but there is also suspicion about the adequacy of the procedure (A/C)? Do you generally say:
this is Chevron's domain
Step 0
Step 1
Step 2
OK - outcome's reasonable BUT arbitrary and capricious procedurally?
OR:
this is Chevron's domain
Step 0
Step 1
Step 2 - there was arb/cap, they didn't analyze this huge comment about X (think State Farm) - so it's substantively invalid for failing Hard Look?

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kalvano
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Re: Administrative Law

Postby kalvano » Sun May 05, 2013 12:55 pm

Chevron is specifically for an agency's statutory interpretation. So do that first, because if they interpreted the statute wrong, then that's that. If they did it correctly, then move on to other questions.

Also, if you're unclear on review, just look at recent decisions in the D.C. Circuit, almost all they do is administrative law, and they will run down the review checklist in orderly fashion.

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JamMasterJ
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Re: Administrative Law

Postby JamMasterJ » Sun May 05, 2013 1:10 pm

kalvano wrote:Chevron is specifically for an agency's statutory interpretation. So do that first, because if they interpreted the statute wrong, then that's that. If they did it correctly, then move on to other questions.

Also, if you're unclear on review, just look at recent decisions in the D.C. Circuit, almost all they do is administrative law, and they will run down the review checklist in orderly fashion.

thanks for the tip - so you're saying that process and substance are reviewed separately, right?

also, if you have tips on particular cases, that would be great - I tried several Google combinations adn a narrowed westlaw search to no avail.

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kalvano
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Re: Administrative Law

Postby kalvano » Sun May 05, 2013 1:40 pm

Chevron is specific to an agency's interpretation of a statute. So if that's not what's going on, then it's a different review standard.

And I just pulled up the most recent cases on Westlaw and found a couple. Most of them have the "standard of review" section.

waxecstatic
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Re: Administrative Law

Postby waxecstatic » Sun May 05, 2013 1:48 pm

kalvano wrote:Chevron is specific to an agency's interpretation of a statute. So if that's not what's going on, then it's a different review standard.

And I just pulled up the most recent cases on Westlaw and found a couple. Most of them have the "standard of review" section.


How about the trigger language? If we're reading a fact pattern, and then we're asked to be counsel for someone wishing to challenge an agency's decision, where exactly do we begin in assessing adjudication or rulemaking and what APA procedures must be followed. I know adjudication is simply decision-making that is retrospective in nature and applies to specific people relating to specific facts, and that rulemaking is essentially rulemaking, forward looking, applies to all persons in a class equally, but where exactly do I go from there?

I know what the concepts are but just trying to figure out language, and what APA procedures to be used in dissecting a problem and determining the validity of an agency's actions.

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3|ink
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Re: Administrative Law

Postby 3|ink » Sun May 05, 2013 1:57 pm

Assuming the question doesn't tell you the grounds that you will be challenging the decision, just keep an eye out for obvious problems:

1. Identify what kind of decision was rendered. Adjudication? Rulemaking? Hybrid? Formal? Informal?
2. Did the agency do what was required of that sort of decision as required by case law?
3. Did the agency action violate the constitution? DP?

Once you've found grounds to challenge the action, prioritize your challenges based on least chance of agency deference. For instance, if there was a procedural error, the scope will be De Novo. Then make sure you have standing.

These are just the broad strokes. There's probably more to it than this.
Last edited by 3|ink on Sun May 05, 2013 2:17 pm, edited 1 time in total.

waxecstatic
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Re: Administrative Law

Postby waxecstatic » Sun May 05, 2013 2:15 pm

3|ink wrote:Assuming the question doesn't tell you the grounds that you will be challenging the decision, just keep an eye out for obvious problems:

1. Identify what kind of decision was rendered. Adjudication? Rulemaking? Hybrid? Formal? Informal?
2. Did the agency do what was required of that sort of decision as required by case law?
3. Did the agency action violate the constitution? DP?

Once you've found grounds to challenge the action, prioritize your challenges based on lease chance of agency deference. For instance, if there was a procedural error, the scope will be De Novo. Then make sure you have standing.

These are just the broad strokes. There's probably more to it than this.


Thanks! That helps a lot and puts things in more practical terms.

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kalvano
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Re: Administrative Law

Postby kalvano » Sun May 05, 2013 2:47 pm

On an exam, always make sure to argue whether the agency exceeded the scope of its authority statute, as well.

But really, the Chevron language will be obvious. "Based on our reading of XYZ statute..." or something like that. The important thing is to differentiate between an agency interpreting a statute and making a rule or adjudication.




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