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Administrative Law
Posted: Sat Nov 26, 2011 7:50 pm
by ph14
Delegation doctrine question: does Benzene survive American Trucking?
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 8:25 pm
by smittytron3k
It would help if you explained why you think American Trucking might have overruled Benzene. I'm fairly certain it didn't. Basically, courts don't police agencies for violations of the nondelegation doctrine (American Trucking--the "intelligible principle" requirement is really open-ended), and even when statutes present serious nondelegation concerns the Court will just read those statutes narrowly to avoid the nondelegation problem (that's the point of Benzene--it's a classic constitutional avoidance move).
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 8:30 pm
by ph14
smittytron3k wrote:It would help if you explained why you think American Trucking might have overruled Benzene. I'm fairly certain it didn't. Basically, courts don't police agencies for violations of the nondelegation doctrine (American Trucking--the "intelligible principle" requirement is really open-ended), and even when statutes present serious nondelegation concerns the Court will just read those statutes narrowly to avoid the nondelegation problem (that's the point of Benzene--it's a classic constitutional avoidance move).
I thought American Trucking said you couldn't cure an unconstitutional delegation by interpreting the statute narrowly?
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 9:05 pm
by smittytron3k
ph14 wrote:smittytron3k wrote:It would help if you explained why you think American Trucking might have overruled Benzene. I'm fairly certain it didn't. Basically, courts don't police agencies for violations of the nondelegation doctrine (American Trucking--the "intelligible principle" requirement is really open-ended), and even when statutes present serious nondelegation concerns the Court will just read those statutes narrowly to avoid the nondelegation problem (that's the point of Benzene--it's a classic constitutional avoidance move).
I thought American Trucking said you couldn't cure an unconstitutional delegation by interpreting the statute narrowly?
2 things:
(1) The agency can't cure it by adopting a narrower construction on its own, but the Court can still construe the statute narrowly under standard constitutional avoidance reasoning (which is what it did in Benzene). Assuming that you're in LegReg, this distinction is really not super important for exam purposes and won't become relevant until and unless you take Admin (where the Constitutional avoidance doctrine becomes one of the major limitations on Chevron deference--agencies are not entitled to deference when they adopt Constitutionally problematic interpretations of the underlying statute).
(2) American Trucking seems to indicate that it is very, very, very hard to have an unconstitutional delegation, so it's hard to imagine that you would then get to this point in the analysis at all.
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 9:12 pm
by ph14
smittytron3k wrote:ph14 wrote:smittytron3k wrote:It would help if you explained why you think American Trucking might have overruled Benzene. I'm fairly certain it didn't. Basically, courts don't police agencies for violations of the nondelegation doctrine (American Trucking--the "intelligible principle" requirement is really open-ended), and even when statutes present serious nondelegation concerns the Court will just read those statutes narrowly to avoid the nondelegation problem (that's the point of Benzene--it's a classic constitutional avoidance move).
I thought American Trucking said you couldn't cure an unconstitutional delegation by interpreting the statute narrowly?
2 things:
(1) The agency can't cure it by adopting a narrower construction on its own, but the Court can still construe the statute narrowly under standard constitutional avoidance reasoning (which is what it did in Benzene).
(2) American Trucking seems to indicate that it is very, very, very hard to have an unconstitutional delegation, so it's hard to imagine that you would then get to this point in the analysis at all.
Great, thank you so much. Dumb question, but how come Chevron doesn't affect this issue?
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 9:49 pm
by smittytron3k
Not a dumb question at all--we actually spent a full 3 hours in Admin on that issue. Basically, courts are often unwilling to give Chevron deference to agency interpretations of their own organic statutes when those interpretations pose serious Constitutional questions or otherwise run up against strong substantive presumptions. The basic argument is that Chevron is a fiction about Congressional intent (that Congress, by legislating ambiguously, intended to delegate that policy choice to the agency), and that Congress would not have intended to delegate to the agency the authority to adopt a questionably unconstitutional interpretation of the statute. This is not always the case, but it's generally true that constitutional avoidance tends to trump Chevron.
Re: Administrative Law Question (delegation doctrine)
Posted: Sat Nov 26, 2011 11:26 pm
by quiver
smittytron3k wrote:Not a dumb question at all--we actually spent a full 3 hours in Admin on that issue. Basically, courts are often unwilling to give Chevron deference to agency interpretations of their own organic statutes when those interpretations pose serious Constitutional questions or otherwise run up against strong substantive presumptions. The basic argument is that Chevron is a fiction about Congressional intent (that Congress, by legislating ambiguously, intended to delegate that policy choice to the agency), and that Congress would not have intended to delegate to the agency the authority to adopt a questionably unconstitutional interpretation of the statute. This is not always the case, but it's generally true that constitutional avoidance tends to trump Chevron.
This is my understanding as well. When an agency interpretation pushes the limits of Congress’ constitutional power, the Court expects a clear indication that Congress intended that result.
See Solid Waste Agency of Northern Cook County v. Army Corp of Engineers.
Re: Administrative Law Question (delegation doctrine)
Posted: Sun Nov 27, 2011 2:30 am
by wiseowl
lol i am so screwed in this class
Re: Administrative Law Question (delegation doctrine)
Posted: Sun Nov 27, 2011 2:32 am
by beach_terror
wiseowl wrote:lol i am so screwed in this class
Re: Administrative Law
Posted: Sun Nov 27, 2011 8:13 pm
by ph14
So I am a bit confused with judicial review of fact and the substantial evidence test. Can anyone clarify?
A bit more specifically, Universal Camera and how it works with the ALJ and such.
Re: Administrative Law
Posted: Sun Nov 27, 2011 8:40 pm
by kalvano
ph14 wrote:So I am a bit confused with judicial review of fact and the substantial evidence test. Can anyone clarify?
A bit more specifically, Universal Camera and how it works with the ALJ and such.
The ALJ makes a decision and that decision must usually be appealed to a higher level within the agency before judicial review may be sought. The initial decision of the ALJ is part of the record of the agency proceedings that are reviewed in court. Therefore, when an agency reverses the decision of a trier of fact on appeal within the agency, the reviewing court must take the reversal into account in deciding whether the agency’s decision is supported by substantial evidence. The ALJ’s decision weighs against the agency’s decision.
Universal Camera: Agency reversal of ALJ credibility findings: Because witnesses appear only before the ALJ, a special problem arises when an agency reverses an ALJ’s decision that’s based, in whole or in part, on witness credibility. SCOTUS has said that the reviewing court must take the initial decisionmaker’s opinion into account when deciding whether the agency’s conclusions are supported by substantial evidence. Finally, if a COA reviews a Federal District Court and the DC finds substantial evidence, the appellate court can’t overturn the DC unless the standard was misapprehended or grossly misapplied.
Re: Administrative Law
Posted: Sun Nov 27, 2011 9:48 pm
by c3pO4
i hope you guys aren't in my admin law class. i don't understand anything you just talked about.
Re: Administrative Law
Posted: Sun Nov 27, 2011 11:55 pm
by Extension_Cord
Can an administrative law be borrowed to establish a duty + breach in torts?
Im totally aware this is a random question.
Re: Administrative Law
Posted: Sun Nov 27, 2011 11:58 pm
by ph14
Extension_Cord wrote:Can an administrative law be borrowed to establish a duty + breach in torts?
Im totally aware this is a random question.
For negligence per se? I'd think an administrative regulation could for NPS purposes.
Re: Administrative Law
Posted: Mon Nov 28, 2011 12:06 am
by Extension_Cord
ph14 wrote:Extension_Cord wrote:Can an administrative law be borrowed to establish a duty + breach in torts?
Im totally aware this is a random question.
For negligence per se? I'd think an administrative regulation could for NPS purposes.
Yeah, thanks. I did a hypo earlier and it said admin law, I wrote out that it could be borrowed but wasn't completely sure.
Re: Administrative Law Question (delegation doctrine)
Posted: Mon Nov 28, 2011 12:48 am
by shock259
wiseowl wrote:lol i am so screwed in this class
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:00 pm
by ph14
So I am a bit confused as to when you would apply each of arbitrary and capricious, substantial evidence, de novo, review, as well as a decision judged to be committed to agency discretion.
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:12 pm
by beach_terror
ph14 wrote:So I am a bit confused as to when you would apply each of arbitrary and capricious, substantial evidence, de novo, review, as well as a decision judged to be committed to agency discretion.
Just because I'm doing substantial evidence right now, it only applies to (and correct me if I'm wrong) agency
adjudication that reviews fact finding - and I think it only applies to formal adjudication (so 554/556/557) - will report back when I'm through this section later tonight.
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:16 pm
by ph14
beach_terror wrote:ph14 wrote:So I am a bit confused as to when you would apply each of arbitrary and capricious, substantial evidence, de novo, review, as well as a decision judged to be committed to agency discretion.
Just because I'm doing substantial evidence right now, it only applies to (and correct me if I'm wrong) agency
adjudication that reviews fact finding - and I think it only applies to formal adjudication (so 554/556/557) - will report back when I'm through this section later tonight.
Please report back. I thought it applied to reviews of fact for formal adjudications and rulemakings. But I definitely could be wrong.
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:41 pm
by beach_terror
ph14 wrote:beach_terror wrote:ph14 wrote:So I am a bit confused as to when you would apply each of arbitrary and capricious, substantial evidence, de novo, review, as well as a decision judged to be committed to agency discretion.
Just because I'm doing substantial evidence right now, it only applies to (and correct me if I'm wrong) agency
adjudication that reviews fact finding - and I think it only applies to formal adjudication (so 554/556/557) - will report back when I'm through this section later tonight.
Please report back. I thought it applied to reviews of fact for formal adjudications and rulemakings. But I definitely could be wrong.
According to my book 706(2)(E) only applies to cases subject to 556/557 or "otherwise reviewed on the record of an agency hearing provided by statute." I think A&C (706(2)(A))then applies to informal, substantial evidence to formal, with A&C being more deferential supposedly. We aren't doing judicial review of agency rulemaking, so I can't reply to your statement, sorry!
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:42 pm
by kalvano
STANDARDS OF JUDICIAL REVIEW UNDER THE APA
APA §706 and Standards of Review
There are 3 standards of review under the APA:
Arbitrary and capricious;
Substantial evidence; and
De novo
A&C - Look at what the gov has-you don’t even look at the other party’s record. What info did the agency head have when he made his decision? The absence of an explanation of a reg is arbitrary and capricious
SE - Relevant evidence that a reasonable mind might accept as adequate to support a conclusion; thus, even if a court disagrees w/ an agency’s findings, it must affirm them if they are reasonable
How to Decide Which Provision Applies
Arbitrary and capricious applies to all agency action
Substantial evidence applies only to formal adjudication and formal rulemaking but this applies only to cases subject to §§556 and 557 or otherwise reviewed on the record of an agency hearing provided by statute
De novo is only available when, under traditional admin law principles, a party is entitled to trial de novo in the reviewing court
If substantial evidence or de novo review is available, it governs
The Record on Review
The record on review consists of the material the agency had before it when it made its decision
The reviewing court looks at the whole record, not just the evidence supporting the agency’s decision
Post Hoc rationalization - Whatever is given to the court has to be what was in front of the agency when it made its decision. Can’t give the court something the agency never looked at when it made its decision.
SE Test - Review of Questions of Fact
Substantial evidence review of the “whole record” - court must look at the whole record, not only the evidence supporting the agency’s decision. A decision might fail the substantial evidence test, even though it’s supported by some evidence, when that evidence is overwhelmed by other evidence to the contrary.
A&C Test - Review of Policy Question
A&C requires that agencies make decisions that are:
(1) Based on a consideration of the relevant factors, including alternatives to the agency’s proposal suggested by the record. Agencies must consider those factors made relevant under the correct legal standard.
(2)Without a clear error of judgment - as proof that agencies considered all relevant factors, courts require agencies to explain their decisions on major issues that are raised during the decision making process.
(3)Under the correct legal standard - on judicial review, courts require agencies to apply the correct legal standard to the policy questions decided.
Conducting An A&C Review
Courts must keep in mind that:
While the inquiry is “searching and careful”, the standard of review is a narrow one and the court isn’t empowered to substitute its judgment for that of the agency
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:42 pm
by ph14
beach_terror wrote:ph14 wrote:beach_terror wrote:ph14 wrote:So I am a bit confused as to when you would apply each of arbitrary and capricious, substantial evidence, de novo, review, as well as a decision judged to be committed to agency discretion.
Just because I'm doing substantial evidence right now, it only applies to (and correct me if I'm wrong) agency
adjudication that reviews fact finding - and I think it only applies to formal adjudication (so 554/556/557) - will report back when I'm through this section later tonight.
Please report back. I thought it applied to reviews of fact for formal adjudications and rulemakings. But I definitely could be wrong.
According to my book 706(2)(E) only applies to cases subject to 556/557 or "otherwise reviewed on the record of an agency hearing provided by statute." I think A&C (706(2)(A))then applies to informal, substantial evidence to formal, with A&C being more deferential supposedly. We aren't doing judicial review of agency rulemaking, so I can't reply to your statement, sorry!
Doesn't 556/557 apply to formal rulemaking in addition to formal adjudication?
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:43 pm
by beach_terror
Thanks kalvano! I was right to the extent of what we've covered in my class so far (thank god). Looks like it extends to rulemaking as well.
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:46 pm
by ph14
beach_terror wrote:Thanks kalvano! I was right to the extent of what we've covered in my class so far (thank god). Looks like it extends to rulemaking as well.
+1. Thanks Kalvano, you're a lifesaver.
Re: Administrative Law
Posted: Wed Nov 30, 2011 9:47 pm
by kalvano
How long do you guys have before the exam? Enough time to order a supplement and read through it or no?