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Admin Question

Postby traehekat » Sat Apr 28, 2012 11:14 am

Do you apply a "hard-look" analysis in Step Two of Chevron, or is the question simply whether the agency's interpretation of an ambiguous statute was reasonable? Or are these simply the same things, i.e., in order to determine whether an interpretation is reasonable, you have to give it a "hard look" and apply all the factors you would in a hard-look analysis of an agency's policy decision?

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Re: Admin Question

Postby Pretzel_Logic » Sat Apr 28, 2012 11:18 am

We never used the phrase "hard look"--my prof just said ask if it's reasonable under step two. Which is pretty squishy, but so is admin law. I'm guessing your second analysis is right, you're just using different terminology. The Admin E&E was pretty decent for Chevron analysis if you've got access to that.

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Re: Admin Question

Postby mi-chan17 » Sat Apr 28, 2012 11:22 am

If my admin outline from last semester is right, "reasonableness" is a different kind of look than "hard-look" and Chevron uses the former.

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Re: Admin Question

Postby traehekat » Sat Apr 28, 2012 11:46 am

Well, I'm an idiot. PP slides from class clearly say that Chevron Step 2 is "a hard look at the agency's process of interpretation." Not ENTIRELY sure what that means, though...

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Re: Admin Question

Postby kalvano » Sat Apr 28, 2012 1:44 pm

"Hard look" is a theoretical doctrine. Here are my notes on it -

xi. Hard Look Doctrine
1. Another name for A&C review

Two schools of thought
a. Courts should take a hard look at agency action
b. Agencies should take a hard look at the facts

Clear Error of Judgment—often called Hard Look Review
a. Overton said court will review if clear error of judgment—very difficult to prove this if plaintiff.
b. Even if agency exercised discretion within statutory bounds and considered all the relevant factors
c. Courts have to become familiar with record and see if agency decision is reasonable.
d. No consideration of reasonable alternatives?
i. When is an alternative reasonable?
e. It offers an explanation that runs counter to the evidence before it?
f. The rule is so implausible that cannot be ascribed to agency expertise?

Hard Look Now
1. Agency action to revoke prior rulemaking can be overturned as arbitrary and capricious
2. A&C standard applies to the policy or discretionary determinations embodied in the adoption, modification, or revocation of legislative rules.

Procedural hard look versus substantive hard look

a. Idea that agencies must consider alternatives
b. Respond to counter-arguments
c. Listen to affected interests
d. Offer detailed explanations of their conclusions
e. Process goes to justice regardless of efficiency
i. Democratic values at the heart of the hard look doctrine

a. The Court judges the alternative chosen by the agency to be so irrational that is must be ruled out (arbitrary and capricious)
b. In order to find against an agency you need clear error of judgment, irrational action, the opposite of feasible and prudent
c. Close judicial scrutiny on the merits
d. Courts usually do not condemn agency policy as faulty but will remand because procedure was insufficient
3. Courts must ensure that agencies took a hard look and applied their expertise without substituting the court’s policy judgments for that of the agency

Chevron Step 2
a. Massive agency deference
b. But be clear about the intent of Step 2
i. Does the court test the reasonableness of the interpretation against Congress's intent (Step 1 redux)?
ii. Or is it a form of "arbitrary and capricious" review? (most scholars go with this)
c. Did they reason through it using their expertise, or just use their own personal opinions?

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