Admin Final Exam

Congress may not grant the executive branch exclusive, unfettered rule making authority. Panama Refining Co.

It is unconstitutional if Congress does not confer an intelligible principle. ALA Schechter.

Congress must articulate an intelligible principle. JW Hampton.

Broad policy guidelines for agencies to conform to, with limiting words. Whitman; Gundy.

They may do so internally unless Congress prohibited it, but agencies may not sub-delegate to outside entities unless explicitly authorized by the enabling statute. U.S. Telecomm. Ass'n v. FCC.

No.

Anyone exercising significant authority pursuant to the laws of the United States. Buckley v. Valeo.

Whether the officer is exercising significantly legal authority. Free Enterprise; Lucia.

If the power exercised is unreviewable by anyone else in the executive branch, they are exercising significant authority as a principal officer. Arthrex.

1. Subject to Removal by a higher executive official.
2. Limited in duties.
3. Limited in jurisdiction/scope of authority and discretion
4. Limited in tenure.

The president, courts, or department heads.

Yes, Congress may do so in the enabling statute of the agency.

The constitution is silent on this matter.

Only be impeachment and conviction. Bowsher.

Any officer exercising purely executive functions may be removed at will. Myers; Humphrey's Executor.

Yes. Seila.

Yes, but only if doing so would impede the President's ability to fulfill its constitutional duties. Morrison.

Depends on whether the agency is acting more like a legislature (Bimetallic) or a court (Londoner).

Liberty and Property

Whether they have a legitimate claim of entitlement to the property guaranteed by statute, rule, or mutual understanding. Roth; Sindermann.

Stigma+ Test. Paul v. Davis.

Notice, opportunity to be heard, and a neutral decision maker.

Under a balancing framework weighing the private interest at stake and the risk of an erroneous deprivation against the government's interest in efficiency and cost-saving. Mathews v. Eldridge.

Yes. Goldberg.

No. Mathews.

1. Exigent circumstances necessary to protect public health/safety (N. Am. Cold Storage)
2. Impractical or impossible (Gen. Elec)
3. Post-deprivation judicial remedy available (Philips).

1. Strict statutory standards with little room for risk of error
2. Deprivation is temporary and remedial.

1. Liberty
2. Welfare Benefit Termination

1. Notice
2. Participation
3. Justification

Agency must publish in the Federal Register:
1. Time, place, and nature of public rule making proceedings
2. Reference to legal authority under which rule is proposed
3. Terms of substance of proposed rule OR description of subjects/issues involved.

The final rule must b e the logical outgrowth of the proposal. Chocolate Mfgrs. Ass'n

The public must have meaningful ability to comment not eh proposed rule, including access to the data the agency relied upon in crafting the proposed rule if applicable. Ruckelshaus.

The agency must justify the difference between the proposed rule and the final rule by providing a concise general statement identifying the major issues of policy considered by the agency, the rationale for reacting to those issues, and its response to "vital questions" or "issues of cogent materiality" that arose in the comments. Nova Scotia Foods.

No. Congress or agencies may use their discretion to impose additional requirements on themselves, but reviewing courts may not. Vt. Yankee.

More extensive than N&C rule making but not as formal as requiring a hearing. Vt. Yankee.

Congress may mandate it in the enabling statute, or the agency may have its own internal rules requiring hybrid rulemaking. Vt. Yankee.

1. Procedural Rules
2. Interpretative Rules
3. Good Cause

Legally binding rules that generally don't alter the rights of the parties, but merely the manner and mechanisms of asserting or adjudicating those rights. Air Transport Ass'n

General statement of policy indicating under what circumstances the agency intends to take investigative or enforcement action and to guide the agency in adjudication.

1. Urgent public health/safety matters
2. Issues that would frustrate ether purpose of the rule
3. Uncontroversial or minor rules

Very narrowly

No. It mentions it as prohibited for adjudication, but not for rule making.

Communications after N&C Rulemaking should not happen but if it does happen anyway then it should be disclosed on the public docket.

If they happen after N&C period closes and form the basis of the ultimate agency action. HBO v. FCC; Sierra Club.

A court may overturn the rule if political pressures overrode the record forming the basis of the agency action. Sierra Club.

No, as long as the public docket may still support the ultimate rule. Extrinsic factors could have influenced the decision without being docketed. Sierra Club.

If there is clear evidence that the rule maker has an unalterably closed mind.

1. Final agency action
2. Ripeness

1. Has legal consequences.
2. Discrete/specific.

Yes b/c it has legal consequences.

1. Fit for judicial decision
2. Hardship to parties

Must have both constitutional standing and statutory standing.

Must be arguably within the zone of interests the statute intends to protect.

The statute asks a standard of review for courts.

Yes, in the enabling statute. There is a strong presumption in favor of review, and the agency must rebut that presumption by offering clear and convincing evidence of congressional intent to preclude.

Arbitrary/Capricious

Four factor analysis
1. Reliance on factors Congress didn't intend
2. Failure to consider important aspects of problem
3. Explanation ran counter to evidence
4. Explanation implausible.

Reasonable mind must accept agency decision as adequate upon review of the entire record.

1. Degree of agency care
2. Agency consistency, formality, and relative experience
3. Persuasiveness of agency position.

Chevron only applies if the regulation has the binding force of law.

1. Clear language/intent
2. Read in xontext
3. Complex statute gets greater deference.

Yes, unless the prior judicial interpretation held the language was unambiguous.

Yes.