Admin law- MC cases

whether the agency's actions were arbitrary, capricous, an abuse of discretion, or otherwise not in accordance with the law- de novo review

1. if "feasible and prudent" alternative route exists

2. if no such route is available, the statutes allow him to prove construction through parks only if there has been "all possible planning to minimize harm"

authorized only when the agency action is taken pursuant to a rule-making provision of the act itself

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

no "feasible" alternative route

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (2)hold unlawful and set aside agency action, findings, and conclusions found to be— (F)unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

in relation to 706(a), there must be a show of bad faith or improper behavior for an abuse of discretion and there was no showing, BUT could reasonably believe that in this case there are no feasible alternative, and

1. can the court hear this case?/ Is it entitled to hear it on the merits after the agency is decided?

2. Assuming it does (it does, what standard of review should the review court apply? How much discretion do we want to grant the agency?
---- 6 different standards
-- arbitrary capricious
--not in accordance with the law
---what does arbitrary and capricious mean?

Hard look doctrine

section 706 of the APA

notice and comment section

1. APA
2. Notice and comment
3. the statute that creates power (securities and exchange act in this case)
4. federal common law
5. the constitution
6. the agency's own rules

1. prove notice on the federal registry and allow comments
2. publish proposed rule
3. concise general

1. Has to be decided on the basis of the administration record

2. accumulated administrative record

starting all over if the decision was unwarranted

1. adjudication

2. enforcing a rule (theres a new issue in the proceeding that was not discussed at the agency level)

the process of determining whether the defendant is guilty or not

Arbitrary or capricious

Legislature cannot delegate the power to make law or fundamental policy decisions.

May allow executive agencies to make rules via statute but must provide sufficient guidelines and standards so that the agencies are merely implementing policy determined by the legislature, not determining the policy themselves. ("intelligible principle")

Exception. Legislature may not delegate to an executive agency the right to define the elements of a crime or to create criminal penalties.

the intelligible guiding principle is to crate freight rates "equal and reasonable"

(No private actors) May, 1935 - The U.S. Supreme Court declared the National Industrial Recovery Act unconstitutional.

NON-DELEGATION DOCTRINE-- It held that Congress had improperly delegated legislative authority to the National Industrial Recovery Administration and delegated authority to private actors and not government agents

1. theme: the blurring of real authority

2. Facts: Benzene (carcinogen) that are high can kill people and set a "consensus standard" for occupational exposure and safety

3. Rule: In promulgating standards regarding exposure levels to carcinogens, the Secretary of Labor must make appropriate findings that exposure presents a significant health risk in the workplace at higher levels in order to set exposure levels at the lowest possible level

4. reasoning: the secretary of labor must make these findings because they are the expert and shouldn't put the burden on the industry. They claim that the lowest level were likely to be appreciable, but that is not shown through substantial evidence

protect public health and safety

protect public welfare

not a fan of letting agencies create law

If the agency is doing the real legislative power, then that is unconstitutional

there can be cases where the agency is making the law

whether there is an intelligible principle or not, the agency can still help make the law, especially issues needing expertise

1. useful because it means the legislature is making the key decisions

2. if there is a key principle at stake, the agency can look for the intelligible guiding principle to help carry out their actions

3. if the agency adopts rules, the court can hold the agency to carry out those rules

if the agency adopts agency level rules, you are bound by those until you adequately explain why you are not

facts:

Rule: Authorizing the AG to enforce the national Sex Offender Regisration and Notification Act against pre-act offenders does not violate the non delegation doctrine under the current intelligible principle standard

1. administrative law occurs-- adjudication

2. notice that rule making is more efficient/better/fairer than adjudication (Chenery II/National Petroleum Refiners)

3. rule making becomes more prominent

4. Formal rule making is too time consuming/costly

5. Opt out for less formal rule making and more INformal rule making

6. informal rulemaking requires such a MINIMAL administrative record that fair judicial review becomes difficult or impossible (Novia Scotia/ Hot Smoked White fish rule-enforcement case/ southern Railway)

7. some courts beef up the procedural/record-making requirements in INFORMAL / N & C rulemaking cases under sections 553 or 706 . . . "hard look" review is okay, but most JUDICIALLY imposed agency procedural requirements beyond the APA/organic statues/agency's own rules (see Arizona Grocery) are not (see Vermont Yankee case

8. too much judicial "hard look" review of agency informal rulemaking may, AT LEAST FROM THE AGENCY'S STANDPOINT, come to seem too time-consuming/costly/burdensome/humiliating for the agency (see State Farm in informal rulemaking; Scenic Hudson in the licensing context).

9. agencies are tempted to de-emphasize (even) informal rulemaking in favor of other authorized procedures, such as "voluntary" product recalls, or the use of (supposed) INTERPRETIVE RULES not requiring notice and comment (as in Community Nutrition/Aflatoxin or Hoctor/big cats)

10. But an undue emphasis on product recalls is "after the fact" of the accident and inefficient, and the overuse or improper use of interpretive rules amd similar devices loses the value of broad insights from various interested parties when formulating agency rules

a party is not entitled to judicial relief for an alleged injury until all prescribed administrative remedies have been exhausted

if congress prescribes an administrative remedy and delegates jurisdiction over a particular matter to an administrative agency, a federal court cannot inset itself as a substitute for the intended role of the administrative agency

1) NRLB does not have jurisdiction over its employment practices BUT the question must be answered by the NLRB in the first place

2) the courts of appeal have appellate jurisdiction over the NLRB, so the district court did not have jurisdiction to grant Bethlehem a preliminary injunction

Presidents could not fire members of regulatory agencies without just cause and does not possess the constitutional authority to remove an executive branch official who exercises quasi-judicial or quasi legislative functions . it would violate seperation of powers

they can fire any pure executive branch members.

1) Neglect of duty
2) inefficiency
3) commit a crime of moral turpitude - malfeasance in office

President Roosevelt fired William Humphrey, a commissioner of the Federal Trade Commission (FTC). Humphrey later passed away. The executor of Humphrey's estate (plaintiff) sued the United States (defendant) for back pay. The executor also alleged President Roosevelt violated the Federal Trade Commission Act, which stated that a commissioner could only be removed for being inefficient, neglecting duties, or wrongdoing.

The leading separation of powers decision permitting congress to limit the presidential removal powers

Supreme Court case ruling that the legislative veto of an administrative regulation was unconstitutional

Chadha, East Indian born in Kenya, remained in the US after his visa expired. The attorney general suspended his deportation. Soon after, under the Immigration and Nationality Act, the House passed a resolution overturning the AG decision (legislative veto) and didn't give a public hearing, report, or meaningful statement.

The one house legislative veto is unconstitutional. the veto procedure msut be severed from the remainder of the immigration and Nationality Act.

the veto is an exercise of legislative power, because it alters the legal rights, duties, and relationships of people outside the legislative branch

legislation must pass by a majority of both the house of representative and the senate

Bills must be presented to the president or final processing or veto.

the house's decison to deport chada is an exercise of judicial, not legislative power. The decision violates the separation of powers


the legislative veto in the act is unconstitutional

The veto satisfies Art. 1's main goals

the AG's recommendation that Chadha stay in the US confers presidential approval

each house had the chance to indicate its disapproval by exercising the legislative veto or its approval by not doing so

The history of immigration and Nationality Act suggests that Congress wasn't willing to permit the executive branch alone to suspend deportation decisions. the legislative veto isnt severable

ended teh use of the formal one house legislative veto

Order made by President Ronald Reagan requiring the review, by the Office of Management and Budget, of all proposals for new executive branch regulations through a cost benefit analysis.

aimed to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations"

revoked in 1993

Federal judiciary courts may make de novo rulings on jurisdictional facts even if Congress has given an administrative court the power to make factual findings.

HOWEVER, factual determinations that implicate constitutional rights or the jurisdiction of the agency itself cannot be delegated to administrative agencies

1) expedite proceedings

2) quickly provide compensation

Rule: (substantial evidence test) A reviewing court may set aside factual findings of the NLRB when such findings are found not to be supported by substantial evidence in the record viewed as a whole.

(how heavily must an agency weigh fact-finding by its own Administrative law judge)

this court established the substantial evidence test

in order to calculate the fair value of a property (nonexlcusive) factors are:

1. the original construction cost
2. the amount spend on permanent imporvements
3. the market value of the company
4. the cost to construct presently compared to the original cost
5. the projected earning capacity at prescribed rates
6. the operating expenses

Rule: The fixing of rates must be based on the fair value of the property being used by a corporation for the public convenience to ensure the corporation receives just compensation for its services. Ratemaking actions which constitute a "taking" are "contrary to constitutional right"

did petitioner Federal Power Commission determine a "just and reasonable" rate pursuant to the Natural Gas Act in it rate order regarding what respondent natural gas company could charge?

answer: yes

HNG sold gas in interstate commerce and was overcharging and the FPC ordered a reduction rate. HNC refused and they went to court

A court should not intervene in an administrative agency's ratemaking process in interstate commerce if the result is just and reasonable.

Allen bought 56 eclectus parrots originally from Indonesia and imported them into the United States. Indonesia prohibited the export of eclectus parrots. Allen did not know of the Indonesian law, or of 19 U.S.C. § 1527, which prohibits the import of any wild bird if exporting the bird is prohibited in the country of origin. United States customs seized the parrots and ordered their forfeiture.

is a question of law one that a court or administrative agency answers by applying legal principles?

yes

Answering a question of law does not require consideration of the facts of a case; rather, it is limited to interpretation of the relevant law. In this case, the question of the definition of "wild" is a question of law.

In this case, the question of the definition of "wild" is a question of law. The term "wild" is in the statute, and the court's role is to determine the term's meaning. The court adopts the government's proposed definition that a bird is "wild" if it is normally found in a wild state. Because there is no evidence that the eclectus parrot is not normally found in a wild state, there is no genuine issue of material fact in this case.

The case concerned the meaning of the term "employees" in the National Labor Relations Act
The NLRB found that newsboys selling Hearst (D) newspapers were employees under the NLRA and therefore Hearst was ordered to engage in collective bargaining with their representative.

Holding: When reviewing an agency decision involving a mixed question of law and fact, courts review (1) the facts found by the agency to determine whether the agency's conclusion has "warrant in the record" and (2) the agency's explanation of its decision to determine whether the decision has a reasonable basis in law.

Rule: A reviewing court must accept an agency's application of a broad statutory term if such application is supported in the record and has a reasonable basis in the law.

fire fighter case-- wanted to be paid OT for the time spent responding to alarms during their over night stays and sued under the Fair Labor Standards Act

1) thoroughness of agency's determination/care
-- ripe consciousness OR just make it up

2) validity of the agency's reasoning
--- how valid is the result of reasoning
-- not deferential

3) consistency
-- new evidence changed their mind
--did the mind change for political reasons?

4) persuasiveness/expertise

interpretive- not binding

substantive/legislative-- binding

section 553 process

the EPA must set national air quality standards

congress added additional standards for those who would not join.

"source of air pollution"--> any device that gave off air pollutants

Bubble policy- an entire factory or facility can be a single source

NRDC- challenged the bubble policy

If a statute administered by an agency is silent or ambiguous with respect to a specific issue, a reviewing court may not simply impose its own construction on the statute.

1. congress didn't express any intention regarding the bubble concept

2. the EPA's use of the concept was a reasonable policy choice

1) show what the agency has done to reach their opinion

2) if they went through formal rule making or adjudication
--- if yes--> stage 2

3) if you go through

is an agency's interpretation of its own statute that's contained in an opinion letter entitled to chevron deference?

answer-- NO

no- merely entitled to respect if they have the power to persuade

examples
-opinion letters
-policy statements
-agency manuals
-enforcement guidelines

an agency's interpreation of its own statute contained in an informal document isn't entitled to chevron deference, unless it is in a rule or regulation, capable of carrying out the force of law

issue: whether tariff classification ruling by the US Customs Service deserves judicial deference


holding:

A tariff classification has no claim to judicial deference under Chevron because there is no indication that Congress intended such a ruling to carry the force of law

Administrative implementation of a particular statutory provision qualifies chevron deference when it appears that 1. Congress delegated authority to the agency generally to make rules carrying the force of law, and that agency interpretations claiming deference was promulgated in the exercise of that authority.

an example of cheveron stage 0

fact - imposed 4% tariff on
diaries but nothing on day planners

customs issued a ruling letter on planners as diaries to get tariff

mead wanted a second ruling letter explaining why the change and customs said no

issue-- is a tariff ruling letter by the US Customs service entitled to the same level of deference given to agency rulemaking adjudication?

holding-- agency decisions are entitled to deference ONLY IF congress has delegated the authority to make rules carrying the force of law.

adjudicaiton, notice and comment rule making, comparable indication of congressional intent

the chevron test applies

Agency decisions may be entitled to persuasiveness based on the Skidmore factors

that chevron applies if there's an explicit delegation of authority, and skidmore applies if there isn't

Used rarely-informal rule making
1. is it a broad issue or merely interstitial issue?
-- narrow issue
--theory: counsel is in favor of more deference for broad issues

2. whether expertise plays a role
-- if it is involved-- high level chevron deference
--no- low level

3. importance of interpretation for the administration of the statute
--- a term that affects other sections

4. administrative complexity
-- if it is something that runs through the agencies' role, let them do it-- CHEVRON

5. quality of duration for consideration
---- key difference: not penalizing a change of mind because the evidence has changed

THE AGENCY'S INTERPRETATION IS LAWFUL


Here, the statute does not unambiguously forbid the SSA's interpretation of the Act.

Additionally, the agency's construction is permissible because without some duration requirement the Act would be unable to meet its basic objectives. The relevant regulation also reflects the agency's longstanding interpretation.

Furthermore, Congress has frequently amended or reenacted the provisions at issue without alteration.

BEFORE CHEVRON
Clear statement doctrine
The Right to International Travel Case (Passports)

SC squirms out of Chevron analysis (pre-Chevron, of course) and adopts "clear statement principle" making a clear statement required re: Constitutional issues (construe statute narrowly to avoid Const question) - right to travel is question of liberty requiring due process for its denial

Clear Statement Doctrine (CSD): Idea is that Congress must provide a "clear statement" for courts to allow certain results to be reached.
If there are 2 ways of interpreting statute one way raises the possibility that statute is unconst. 2nd way of interpreting statute will not raise any const. issues The ct. will choose the interpretation that is less controversial.
-BEFORE Chevron.

"Hard look" case because there was a factor that they should have considered more

Comed wanted to add more electricity but there is a concern of the hudson river

COST-BENEFIT ANALYSIS
Comed wins

NYC housing program

Not much due process available

90,000 applicants 10,000 units with no explanation on why you do not get one

Lack of objectivity, clarity, fairness

Court commands the program to give clear and definite rules- can even be a lottery

discourages, arbitration, favortism

Fook Hong Mak entered into the US on a "transit authorization" and was only supposed to stay for 8 days but ended up staying for 6 months

INS found him and wanted to deport but Fook hong Mak wanted the AG to look at his case specifically

No rule requires a case by case approach

there is a rule for a reason: fairness

an agency is reqiured to follow its own rules until such time the agency properly changes that rule

EXCEPTION: an agency does not need to follow its own rule when there is a benefit to not follow the rule and no one gets hurt

Railroad tried changing rates for shipping goods and give rebates to those who are overcharged and give a range of rates, but the only rates the commission can allow are REASONABLE rates

exception to the arizona grocery principle

deals with a criminal case and the IRS eavesdropping on a conversation in order to gather information

HOWEVER the agency has an internal rule that says you can't eaves drop unless you have permission

wants the evidence included anyway

in the AZ grocery case if the agency's adjudication or rulemaking is wrong or is not followed correctly the agency has to start over

BUT HERE if the agency follows its rule the criminal prosecution goes down the drain, which will hinder rule making becuase it would no longer be predictable

then the agency will stop making rules,, which will provide less guidance and will not be binding

(the limited possibilities of estoppel against agencies)

FACTS: Hansen, P, was erroneously told by Connelly, an employee of the SSA that she was ineligible for benefits. She subsequently filed for them and received them. She then sued SSA to recover the lost benefits.

H: Court says NO ESTOPPEL. Claims Manual is not a regulation - It has no legal force, and it doesn't bind the SSA. Generally extremely difficult to get estoppel against the government. Why? Tp stop conspiracy, Encourage free advice, and Fear of litigation curtailed.

RULE OF LAW: Misinformation provided by a government official combined with a showing of misconduct (even if it's not violation of a legally binding rule) is NOT sufficient to require estoppel.

Facts: Londoner contended the Denver City Council denied him due process by imposing an assessment of paving costs without notice and an evidentiary hearing. Only allowed him a chance for written objection.

allows hearing because there are specific number of people that is limited enough of those affected

could gather information from different people

Does NOT allow a hearing

deals with raising the property valuation of everyone in Denver by 40%

Congress and state legislatures have more discretion to deny the right to a hearing then does an agency

Londoner is very specific affecting a limited number of people in different ways

Bi Metallic is a range of people with similar issues

Using rule making power to facilitate enforcement of the agency mandate through later adjudication


Made rule making fair for everyone because it is more efficient than trying to prove every case and more fair because a rule immediately binds all competitors together

if the agency just had adjudication case by case, there can be a competitive advantage for the cases that go last

1) has to be notice
2)there has to be an opportunity to comment
3) there has be a meaningful review of those comments.

formal rule making is now rare and informal rule making is preferred

look at the language regarding the hearing to know what hearing must take place

In order for congress to implement formal rule making:
-- THERE AGENCY"S DECISION SHOULD BE MADE ON THE BASIS OF THE RECORD

sometimes informal rulemaking can be too informal

where to apply hard look

1. informal rule making
--notice and comment
-- concise general statement of the bases and purpose of the rule
2. informal adjudication
-overtonpark

Electric utilities case

the court in this case says that court cannot based on its own reference cannot go beyond hard look

the reviewing court cannot make an agency change its interpretive rule by notice and comment-- all they can do is provide reasonable reasons

(what counts as/ what qualifies as an interpretive rule)

deals with wild animals

what does it mean to be "structurally sound"?

6ft vs. 8ft for fences
and Hoctor would get sanctioned

the agency failed to submit the rule to the public for N&C but agency argued it as an interpretive rule

in this case it was arbitrary because no reason to conclude a fence height is 8' would make it structurally sound

legislative:
Notice and Comment procedure-- agency issues a public notice and accepts public comments

If promulgated, a public statement must explain the basis and purpose

Interpretive Rule:
interpretations of existing rules

agency can best explain how rules should be applied, clarifying legislation

(post deprivation hearings)
Chicken case- take them away pre or post hearing?

Balancing interest test and allowing chicken to stay so if they are are not bad. soon after, they find out they are an immediate health hazard and have to get rid of completely and does not require a prior hearing because the owner of the product can sue after the fact and be made whole should it be determined the food was in fact wholesome

property is deprived-- welfare

Goldberg factors- what happens at a hearing

1. nuetral decision maker
--generally cannot be the person who kicked you off in the first place, but can perhaps be somehow involved

2. have to make it public and write it all out in case there is an appeal

3. need to have an oral aspect

4. have the opportunity to present evidence and cross examine witnesses
-- has to be based solely on the administrative record

5. has to be PRE deprivation and not POST deprivation if the defendant relies on the property at question

due process of law- 3 factor test

requires fundamental fairness/meaning hearing at a meaningful time IF

1. required before then pre deprivation hearing

2. allow after, then post deprivation/termination hearing

3. The claimant is going to want a pre deprivation hearing

formal hearing

informal hearing

(when does the hearing take place regarding the taking away of the property interest)

1. pre deprivation
2. post deprivation

no hearing needed-- you are entitled to one, but sometimes there is nothing to be heard

Roth was a professor at Wisconsin state university (property interest) not rehired and given no reason

no hearing- just because you want to teach does not mean it is a property right and the weight/interest on the property of being a teacher is not enough

texas professor who had a contract that wrote-- no formal tenure, but was assumed so long as the employment was mutually beneficial to the college and employee.

once you have a property interest in your job, they cannot fire you without a proper hearing

An interest is a property interest for due process purposes if there are mutual understandings supporting a claim of entitlement to a benefit which may be invoked at a hearing may be invoked at a hearing.

The holding in this case is limited to the concept that an implied contract right may be defined by a state as a property right under the federal constitution, and , therefore, Sindermann (P) must be given an opportunity to prove the legitimacy of his claim.

General rule: without having to show standing you have access to records, held by administrative agencies.

if it is for private interest-- no subside
if it is for public interest-- may get subside

Policy consideration
-- sunshine doctrine: ensure fairness of government decision making

checking up on competitor

as a civil. tool in criminal and civil litigation

anything written

1.national security
2. internal personnel rules and practices
3. another statute that mandates non-disclosure
4. confidential business information
5. attorney client privilege and work product material
6. personal information
7. investigatory records
8. bank records
9. geological surveys

3 factor balancing test

1. the interest of the claimant
-- if trivial--> post deprivation becomes more appropriate
--if NOT-- post deprivation becomes less appropriate

2. the government's interest
-- 2 diferent types
------1. the more the government gives to those who don't deserve the benefits is less money giong to those who do deserve it
-------2. assuring that those who are eligible get those benefits

2. the effectiveness of the hearing
--cost benefit analysis of the accuracy and cost of hearing
-- if the difference between the two are significant then go with the government's procedure
-- if the claimant's procedure is a little more expensive but more correct then go with the claimants procedure

IN THIS CASE- does not need an elaborate hearing because all they need to look at is an X-Ray

General rule:
--brought against the state rather than a federal actor
-- brought against a person acting under color of state law and they violate someone's federal rights, you are subject to federal liability

Exceptions
-- if the right is written down but not enforced, can't be a foundation of a 1983 action

-- if some other statute provides a detailed and exhaustive remedial scheme, then you cant use 1983 for your remedy

damages
--compensation for any lose, reasonable attorney fees for prevailing non-state party

defenses
-- something was done against policy

-- city cannot use qualified immunity

ways to get judicial review

1. constitutional claim
2. if refusal is explainable because of the corruption, then there may be review
3. if the agency had completely advocated its enforcement responsibilities
4. if the agency mistakenly thinks they do not have jurisdiction of the case
5. if the statute itself provides guidance, and if you violate that guidance the court will step in

causation and redressibility

1. causation
-- sufficiently clear attribution of cost
-- injury has to be fairly traceable tot he charged conduct
-- if the injury is caused by someone else not in the case--NO STANDING

2. repressibility
--has to be a good chance that if you win the lawsuit, the condition that you are complaining about will be compensated or go away

3. sufficiently close linkage to injury and causation
--proximate cause

walt disney case

trying to build a theme park in a national park

do they have standing?

no-- no causation or sufficiently close linage to the injury

ripeness-- 2 factors
1. are the issues in the case currently fit for judicial resolution (by a court)

2. whether there will be a hardship to the parties if judicial resolution is delayed (having to hire a lawyer is not a hardship)

1. futility/inability to grant relief

2. facially unconstitutional
-- not a problem with the agency, but with the constitution

a court has technical jurisdiction but the agency receives primary jurisdiction

sole surviving son of a family whose father died in ww2

-- if you fail to exhaust your administrative remedies, you waive your claims

Rule: The doctrine of primary jurisdiction does not apply to suspend judicial proceedings on a common law cause of action where the issues to be decided by the court and these to be decided by an agency are not absolutely inconsistent.

fixed rule: predictability and consistency

exception: unpredictable but sensitive

deals with parade permits

issue: whether there was too much unguided discretion that is subject to biase

Ct held: it is vague because there are no narrow, definite, and objective standards

chevron stage 1 case about color additives-- chevron stage 1 because the statute is clear and it is not always directed toward the most reasonable outcome

(chevron stage 2) deals with medical students and whetehr they are exempt from paying SS because they are students but getting paid a stipend.

no clear and specific intent- not stage 1

chevron stage 2 because it went through notice and comment

barnhart

1. if agency has been granted law making authority by Congress through formal rule making/adjudication

2. if the agency determination was reach through 553/informal rule making (notice and comment)

there are times when an agency acts without the force of law, but the actions receive deference

--highly technical advice concerning a voluminous statute

-- sometime it is better to get the law settled, then it is to keep changing things get the law settled correctly

delas with the Nixon price freeze to deal with inflation for a limited time

the statute is

(1) constitutional
(2)no need for intelligible principle to be expressly stated-- look at legislative history
(3) the statute has fairness and eqity

HOWEVER-- if the agency makes it own rules it has to be approved by congress, and this was not, therefore is a violation of the non-delegation doctrine

two standards

1. fact and policy (more deference)

2. question of law (less deference)

1. arbitrary and capricious,

2. fails to meet statutory requirements

3. fails to meet procedural requirements

4. fails to meet constitutional requirements

5. substantial evidence/ substantial evidence in the record as a whole

6. de novo review