question
How do the Vesting and Take Care Clauses create the core of the president's domestic powers?
answer
Power vested in cheetoh; must take care that laws faithfully executed
question
How are appointments used to control agencies?
answer
President picks agency heads
question
What was the appointments clause problem in Buckley v. Valeo?
answer
The President pro temp of the Senate and the Speaker of the House appointed four of the six members of the FEC. This violates the appointments clause as the president appoints with the advice and consent of the Senate.
question
How does the unitary executive theory affect the relationship between the president and agency heads?
answer
If the president chooses he can direct the agency heads to implement various policies to his liking and the agency heads are essentially just figure-heads. In theory the president can even tell lower level employees what to do through the agency head.
question
How does the advice and consent provision in the constitution argue against the unitary executive theory?
answer
By requiring advice and consent of the Senate the agency heads cannot just be figureheads as they require independent approval outside the presidency. Agency heads should use independent judgment when making decisions (the soulution if the president does not approve- fire them).
question
How are principal officers of the U.S. appointed?
answer
Nominated by the president and confirmed with the advice and consent of the Senate.
question
How can principal officers of the U.S. be removed?
answer
The president can get rid of principal offciers at his discretion. Congress can remove principal officers by impeachment.
question
What is a recess appointment?
answer
Presidential appointment when the Senate is not in session. The appointment is valid for one year or if/when the Senate decides to confirm the appointment in the next session.
question
How has the Senate tried to prevent recess appointments?
answer
The Senate rarely takes a long enough recess for the president to attempt a recess appointment.
question
Who is an inferior officer of the U.S.?
answer
Simpely any person who is not a principal officer (clearly defined in the Constitution or Congress) and who is not an employee of the government.
question
Who may appoint inferior officers?
answer
President or Congress may delegate to other officials the power to appoint inferior officers such as agency heads.
question
What is the appointments process for inferior officers?
answer
Are appointed without the advice and consent of the Senate.
question
What do courts look for to tell the difference between principal and inferior officers?
answer
Morrison Definition - look at all of the circumstances to determine (tenure, power, etc.). Edumund Definition - if an officer can be told what to do by some other officer then you are inferior because you have a supervisor.
question
Have the courts second guessed congressional determinations about whether a position is an inferior officer?
answer
...
question
In Morrison v. Olson, what was the attack on the independent counsel law?
answer
Contesting the power of the independent counsel and arguing that they should be classified as a principal officer.
question
Who appoints the independent counsel?
answer
Attorney General
question
How did the court in Olson argue that the president retained enough control to allow the independent counsel law to stand?
answer
Independent cousenl cannot make policy and the attorney general was thought to exercise control over the independent counsel.
question
Why is the independent counsel law inherently in conflict with the notion of presidential control?
answer
Because independent counsel is appointed by Attorney General who is appointed by the President. Independent Counsel is supposed to investigate the President, but technically can be removed by the AG who is under the President's control.
question
Why didn't the drafters of the U.S. Constitution feel the need to lay out clear guidelines for large federal governmental system?
answer
Because the drafters envisioned strong state governments with the federal government mostly settling disputes, etc., between the states
question
Where did the government happen in the early constitutional period?
answer
State and local
question
When did the federal government become a major source of regulation?
answer
WWII
question
What is the modern test for whether the delegation of power to an agency has been properly done?
answer
The test for delegation of quasi-legislative power is whether Congress has given an agency an "intelligible principle" to which the agency must conform in to executing the powers given(J.W. Hampton & Co.). If Congress has given one, then delegation is proper. This test is very broad and allows agencies to take action that has legislative effect based on the agency's policy judgment, as long as Congress has given a some broad policy/standard within which to act.
question
Intelligible principle
answer
[1] "the extent to which the 'essential attributes of judicial power' are reserved to Article III courts, and
[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,
[3] the origins and importance of the right to be adjudicated
[4] the concerns that drove Congress to depart from the requirements of Article III.
[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,
[3] the origins and importance of the right to be adjudicated
[4] the concerns that drove Congress to depart from the requirements of Article III.
question
How to examine intelligible principle
answer
In examining this, the central issues are
1) whether the delegation impairs an individual's interest in having a claim adjudicated by an impartial Art. III judge and
2) whether the delegation preserves the independent judiciary.
1) whether the delegation impairs an individual's interest in having a claim adjudicated by an impartial Art. III judge and
2) whether the delegation preserves the independent judiciary.
question
How is this modern test for whether the delegation of power to agency has been properly done applied by the courts?
answer
1) Does the statute provide enough guidance for the court to review the agency actions to assure that they comply with Congressional intent?
2) The "intelligible principle" test.
2) The "intelligible principle" test.
question
How would you apply this test to an adjudication?
answer
...
question
If the statute delegating the power to the agency is general - what can the court look to in deciding if there is enough background to review the agency's actions?
answer
...
question
If the court cannot find enough evidence of congressional intent, does the court treat it as an unconstitutional delegation or is there now another solution?
answer
...
question
May Congress delegate the power to adjudicate criminal penalties to agencies?
answer
...
question
If a city wants to have traffic tickets adjudicated by an ALJ, rather than a municipal judge, how must the city change the penalties?
answer
Penalties can only be fines - no criminal penalties
question
What rights will the defendant lose when a criminal matter is transformed to an administrative review?
answer
Full due process - particularly right to appointed counsel and 5th amendment
question
If Congress says an officer can only be removed for good cause, but does not set a term of office, how do the courts treat the president's right of removal?
answer
...
question
What is the basic rule for who can remove principal and inferior officers of the U.S. who do not have a term of office?
answer
Generally, whoever appoints them can remove them
question
What if the statute says an officer serves until removed for good cause, but does not specify a term of office?
answer
Treated as if a lifetime appointment such as judges. Unless the officer has essentially "screwed up" then the retain that position indefinetly.
question
How did Humphrey's Executor lead to independent agencies?
answer
Congress was allowed to limit the presidents removal power to good cause because of the legislative power of the agency. These various agencies do not need to listen to president's directive since they can only be fired for good cause.
question
What are some examples of independent agencies?
answer
SEC, FCC, FIC, NLRB
question
What is the policy reason for having independent agencies?
answer
Don't want the President to have total control over those areas
question
How do independent agencies challenge the theory of separation of powers?
answer
They do everything
question
Why are independent agencies called the headless 4th branch of government?
answer
They are outside the direct control of the president and can also have legislative abilties.
question
What branch of government are independent agencies in?
answer
Executive branch, often considered outside of the executive branch even though they are not (treated as the 4th branch)
question
Why are independent agencies usually headed by a commission rather than individuals?
answer
So that the president does not enact control over the board by having a commissionin theory the current president would not have apppointed every member of the commission.
question
How are the terms of the members of a commission usually structured?
answer
Staggered terms
question
When a new president is elected, can he replace his cabinet secretaries?
answer
Yes
question
Can a new president replace the commissioners of independent agencies?
answer
No
question
When can the president remove the head of an independent agency?
answer
Generally, can only replace once their terms expire, or they can be fired for good cause
question
What is the congressional power over agencies, i.e., how are agencies formed, where do they get their legal powers, and how are they financed?
answer
Agencies are formed by statute and Congress gives them their powers. Congress also controls their budget and can limit budget in order to "kill" the agency.
question
What is the key factor that determines whether an agency must be in the executive branch?
answer
If they have enforcement power
question
What is an example of an agency that is controlled by Congress?
answer
Congressional Budget Office
question
What powers can a Congressional agency exercise?
answer
They review, monitor, and supervise of federal agencies, programs, activities, and policy implementation.
question
What was the Great Compromise between the large and small states that lead to the organization of the Congress?
answer
Compromise that House was represented by population, and Senate got two from each state
question
How was this compromise intended to affect the politics of the two bodies?
answer
Senate supposed to be less partisan and more expertise
question
How were Senate members initially chosen?
answer
By the state legislatures
question
How did changing to direct election of Senators change the interests Senators represent?
answer
More partisan now
question
What are bicameralism and presentment?
answer
Chadha - Senate then House then signing by President
question
What are the President's options on vetoing legislation, and how may Congress override a veto?
answer
President may veto an entire bill or use a pocket veto by not signing the bill and cannot give it to Congress in a 10 day period. Congress may override a veto by a 2/3 vote.
question
What are the exclusive powers of the House of Representatives?
answer
Impeachment, originate all bills for raising revenue
question
What are the exclusive powers of the Senate?
answer
Try all impeachments, approve or disapprove of presidential appointments, ratify treaties negotiated by the President.
question
What is the only joint power?
answer
Declare war, by joint resolution
question
What is an earmark?
answer
When congress directs an agency to spend a sum of their lump sum on certain aspect that has not been presented through bicameralism and presentment. That's why it's not enforceable.
question
How does an earmark differ from an approbation bill?
answer
No bicameralism and presentment over particular money.
question
Can an earmark be enforced in court if the agency does not follow it? Why not?
answer
No. The way spending was allocated was not a line item.
question
Who legally directs the spending of an earmark?
answer
Agency head
question
What is an executive order?
answer
Orders from the president to agency heads to set policy on discretionary decisions.
question
What are the limits on an executive order? (i.e., what can the president do by executive order without legislation by COngress?)
answer
Executive orders cannot do the following: budgetary allocations, statutory duties, abrogate due process, legislate, and use them to change policy for independent agencies.
question
What does Executive Order 12866 address?
answer
It provides that significant regulatory actions must be submitted for review to the OIRA in the OMB. Rules can't be published to Federal Register unless approved by OIRA. Can delay approving it so long you have to do it. Only applies to major rules. OIRA now has 90 days before providing decision to agency.
question
What are OIRA and OMB and what do they do?
answer
Office of Information and Regulatory Affairs and Office of Management and Budget.
OIRA reviews significant regulatory actions (proposed regulation):
(1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs;
(2) that conflict with other agency actions; or
(3) that raise novel legal issues or policy issues.
OMB reviews executive orders?
OIRA reviews significant regulatory actions (proposed regulation):
(1) that have a major effect on the economy; the environment; public health; state, local, or tribal governments; communities; or existing federal programs;
(2) that conflict with other agency actions; or
(3) that raise novel legal issues or policy issues.
OMB reviews executive orders?
question
What is a line-item veto?
answer
The idea that when a Congressional bill is presented to the president, he can veto certain items contained within the bill without vetoing the entire bill. Not allowed under Clinton v. New York.
question
Why was a line-item veto unnecessary in the founders' vision of operation of federal budget?
answer
The founders' vision provided for Congressional bills for each individual issue and did not provide for COBRA. If the President vetoes a bill today, the government shuts down.
question
What separation of powers issues does a line item veto raise?
answer
Gives Congress executive powers.
question
Did the Court allow a line item veto in Clinton v. City of New York?
answer
No
question
What is an adjudication?
answer
The process used to make an order involving specific indentified parties.
question
What would you look to in order to decide if something is an adjudication?
answer
...
question
Explain how inspections, such as using a restaurant inspection, are a form of adjudications.
answer
Parties are required to comply with a specific rule by providing facts about their compilation.
question
Explain how Federal Loans are also Adjudication?
answer
Parties are required to comply with a specific rule by providing specific facts about their compilation.
question
How does an agency make policy through adjudications?
answer
Show how the agency is gonna act - quasi-jurisprudence
question
Why would an agency want to make an adjudication, rather than making a rule?
answer
Simpler process for simpler minds
question
Why is it easier to assure consistent agency policy through rulemaking than through adjudications?
answer
Adjudications apply to one person;
Rulemaking to broader categories
Rulemaking to broader categories
question
How does an inquisitorial process (agency adjudication) differ from an adversarial (court) trial?
answer
In adversarial trials, we value impartiality and cluelessness.
In inquisitorial process, we value expertise on the subject matter.
In inquisitorial process, we value expertise on the subject matter.
question
What are Article III judges, how are they selected, disciplined, removed?
answer
Article III judges have lifetime tenure. They are appointed, and cannot be fired, only impeached. They cannot be disciplined, except by impeachment.
question
How do these Article III Judge factors change for an Article V Louisiana judge?
answer
Article V judges elected
question
How can an Article III judge enforce a judgment?
answer
Contempt
question
Can an ALJ enforce a judgment?
answer
No, ALJ cannot enforce a judgment, the Agency has to enforce them. ALJ decisions are initial or recommended.
question
Can ALJs be fired?
answer
Yes.
question
Can ALJs be required to meet performance standards for their work?
answer
No.
question
How is an ALJ's decision in the federal system different from an Article III judge's decision?
answer
Finality of the decision
question
Can the agency treat an ALJ decision as final?
answer
Yes.
question
If the agency does not treat the decision as final, what does the agency do with it?
answer
Changes it - this is fine because they arlready have a paper record
question
Do ALJs bind the agency in the federal system?
answer
No.
question
How does the policy for admitting evidence differ between an Article III jury trial and an ALJ hearing?
answer
Current Standard:
APA has no requirement that the FRE be used, but the agency can use them if they choose.
*Congress can also decide that the FRE applies to certain agency or all agency.
APA has no requirement that the FRE be used, but the agency can use them if they choose.
*Congress can also decide that the FRE applies to certain agency or all agency.
question
Does the APA establish the rules for admitting evidence into administrative proceedings?
answer
No
question
Do all agencies use the same standards for evidence?
answer
No
question
What was the Residuum Rule?
How does the "substantial evidence" standard change the Residuum Rule?
How does the "substantial evidence" standard change the Residuum Rule?
answer
The residuum rule was used to let in hearsay if you have some evidence to support it.
The substantial evidence standard determines as a whole whether the record supports the agency's finding.
The substantial evidence standard determines as a whole whether the record supports the agency's finding.
question
What is required for Sec. 554(b) notice?
answer
1. Time,
2. Place,
3. Nature of hearing,
4. Jurisdiction,
5. Legal authority,
6. Matters of fact and
7. Law asserted
2. Place,
3. Nature of hearing,
4. Jurisdiction,
5. Legal authority,
6. Matters of fact and
7. Law asserted
question
What can complicate notice?
What about in immigration cases?
Welfare benefit cases?
What about in immigration cases?
Welfare benefit cases?
answer
If the individual receiving notice is uneducated or poor, they can be hard to locate. The reality is that these individuals often don't have a lawyer to fight to notice issue for them.
In cases such as immigration and welfare benefit, you must make an effort to give that individual actual notice.
In cases such as immigration and welfare benefit, you must make an effort to give that individual actual notice.
question
What is the standard of proof required in an agency proceeding, unless otherwise specified in the law?
answer
Preponderance of the evidence, generally.
In mental health proceedings, it's usually clear and convincing.
In mental health proceedings, it's usually clear and convincing.
question
Who has the burden of proof in an administrative proceeding?
answer
The movant (the individual asking for something).
question
Why does it matter for burden of proof?
"Why is it harder for you to lose a law license than to be denied one in the first place?"
"Why is it harder for you to lose a law license than to be denied one in the first place?"
answer
This matters because if the agency is trying to take away a right you have already been given, they have to prove their case before your benefit is taken away.
question
How has the nature of adjudications changed since the passing of the APA?
answer
We don't use formal anymore; almost all informal under Mathews
question
Why are courts reticent to order formal adjudications?
answer
Cost - they're expensive
question
What is the language from Sec. 554 that triggers a formal adjudication?
answer
"On the record after opportunity for an agency hearing"
question
Assume: The statute enabling the adjudication is ambiguous on the language triggering 554.
1. What is need to argue for a formal adjudication?
1.1 On behalf of a regulated party?
1.2 On the behalf of the agency that is opposing the litigation?
1. What is need to argue for a formal adjudication?
1.1 On behalf of a regulated party?
1.2 On the behalf of the agency that is opposing the litigation?
answer
If you want formal adjudication, argue it means the same
question
Why is the problem of ex parte contacts different for ALJs and Article III judges?
answer
ALJs should be well-versed on the subject matter so we allow certain ex parte contacts.
We want Article III judges to remain impartial, so ex parte contacts are forbidden.
We want Article III judges to remain impartial, so ex parte contacts are forbidden.
question
Discuss ex parte contacts in adjudications, including contact between agency staff, decision makers, parties, and interested persons.
What is the solution to curing ex parte contacts?
What is the solution to curing ex parte contacts?
answer
Grounds for reversal in formal adjudications. However, there is an exception regarding members of the agency. During adjudication communication can happen with agency members and staff.
question
What is substantive due process?
answer
Refers to the limits on what the government can regulate
question
What is an example of a substantive due process question from a United States Supreme Court case?
answer
Privacy rights such as the right to marry, contraceptives, etc. Loving v Virginia, Griswold v. Connnecticut
question
How does it differ from procedural due process?
answer
Procedural due process refers to the procedures by which the government may affect the rights of an individual in a particular case.
question
What employers or actors are subject to constitutional due process claims?
answer
Only government employees have constitutional due process claims against their government employers.
question
What do Londoner v. City and County of Denver and Bi-Metallic Investment CO. v. Colorado, tell us about the difference between the due process for an adjudication versus a rule?
answer
No individual due process right to a rule
question
What is a "taking" under the Takings Clause of the Constitution?
answer
When the government acquries private property for the benefit of the public (a forced purchase)
question
What due process/compensation is required with a taking?
answer
Fair compensation; must be connected to government purpose
question
What is a regulatory taking?
answer
When a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it.
question
Is it a taking when the postman runs over your dog or hits your car? Explain.
answer
Can be.
question
Explain the "facts at issue" predicate for a hearing.
answer
Means there are some facts the parties do not agree upon and some determination must be made regarding veracity of the facts
question
Why do we have hearings?
answer
To determine facts at issue
question
Are you entitled to a hearing just to tell your story?
answer
No, but it is a reason we'll give you a hearing
question
Why didn't the suicidal policeman get a hearing?
answer
There were no facts at issue
question
Is an accidental deprivation a constitutional violation?
answer
Can sue through regulatory process, not a taking - FTCA; not a constitutional violation
question
Even if the basic facts are not in issue, what does Loudermill tell us about facts in mitigation and explanation?
When are mitigation and explanation relevant?
When are mitigation and explanation relevant?
answer
You can get a hearing
question
What is a matrix regulation?
answer
When you use a matrix to determine regulation
question
What was the fight in Goldberg over the timing of the hearing, i.e., what was plaintiff's argument for a pre-termination versus post-termination hearing?
answer
Welfare benefits are essential to this group of people and to terminate these benefits without a hearing would be a violation of their due process right.
question
In Goldberg, what was the informal process for terminating benefits that the plaintiffs wanted to change?
Why was it subject to serious bias problems?
What did plaintiff argue that could help cure this inherent bias?
What sort of proceeding did plaintiffs want the court to look to when it analyzed their constitutional claims?
Why was it subject to serious bias problems?
What did plaintiff argue that could help cure this inherent bias?
What sort of proceeding did plaintiffs want the court to look to when it analyzed their constitutional claims?
answer
It was all on paper;
They were using human testimony that could be biased against the person and nobody would look into it;
Having lawyer,Pretermination hearing;
Full trials with appointed counsel
They were using human testimony that could be biased against the person and nobody would look into it;
Having lawyer,Pretermination hearing;
Full trials with appointed counsel
question
What are the procedural rights established in Goldberg?
How do they differ from the rights given indigent criminal defendants?
How are the rights specifically tailored to the special problems posed in providing due process to an indigent welfare population?
How do they differ from the rights given indigent criminal defendants?
How are the rights specifically tailored to the special problems posed in providing due process to an indigent welfare population?
answer
TImely and adequate notice, oral presentation of argument, oral presentation of evidence, confront/cross of adverse witness, disclosure to the claimant of opposing evidence, right to retain attorney, determination on the record of the hearing, record of reasons and evidence relied on; and impartial decision maker
No appointed lawyer
No appointed lawyer
question
In general, how does right to counsel differ in agency and criminal cases?
answer
Appointed v. right to bring one
question
What was the impact on the state welfare system of creating the Goldberg rights?
answer
High cost to agencies;
Caseworkers seldom terminated benefits
Caseworkers seldom terminated benefits
question
How did the Welfare Reform Act of 1996 eliminate the right to hearing on the termination of welfare benefits?
answer
5 years and then you're done
question
How are the rights different for new property versus old property?
What are you entitled to if legislature abolishes your government job or your welfare entitlement?
What are you entitled to if legislature abolishes your government job or your welfare entitlement?
answer
Old property = traditional land v due process rights.
You get nothing.
You get nothing.
question
Assume that governor and legislature of Louisiana decide to abolish law licenses and allow anyone to practice law.
Do you have any constitutional entitlement to compensation as a licensed lawyer?
Explain constitutional basis for this being different from welfare or job at governmental agency.
Do you have any constitutional entitlement to compensation as a licensed lawyer?
Explain constitutional basis for this being different from welfare or job at governmental agency.
answer
Not a deprivation of your right because you still have it, so no claim.
question
Do private employers owe employees constitutional due process?
answer
No
question
What should a public university learn from Roth and Sinderman?
answer
No policy is the best policy. Don't make implied tenure a thing!
question
What is de facto tenure? How can universities avoid creating it? What problems might this cause for the university?
answer
Implied tenure. Have explicit policy that says no de facto tenure.
question
What is stigma plus?
answer
Need reputation plus more tangible interest
The damage to your reputation must be incident to the termination
The damage to your reputation must be incident to the termination
question
What do Roth and Sinderman tell us about why a university should not comment on the failure to renew the contract of a professor
answer
Gives him a right to sue
question
How can you screw up proper firing and end up paying damages for injuring the employee?
answer
LSU case - can email about it
question
What if government employer gives an employee a bad recommendation that causes him to lose a subsequent job?
Is this stigma plus?
What would the employee have to show to get stigma plus?
Is this stigma plus?
What would the employee have to show to get stigma plus?
answer
Rec letters are never incident to the termination, so no this is not stigma plus
Would have to show that damage to reputation incident to termination of right as well as job
Would have to show that damage to reputation incident to termination of right as well as job
question
Privacy as a protected liberty interest: How did the court change its analysis between the drunkard and the shoplifter cases?
answer
Reputation to stigma plus
question
What are the liberty interests in the prison cases?
answer
Cruel and unusual punishment - courts almost never find this
question
What was the benefit in Matthews?
answer
SSD
question
How were the facts determined for making the benefits determination in Matthews? How is this different from Goldberg?
answer
Scientific/medical documents by professions; not just neighbor testimony - testimony won't provide anything extra here
question
What is the role of the claimant's testimony in Matthews? How is this different from Goldberg?
answer
Unimportant
question
Why did the court believe that a post-termination hearing was OK in Matthews and not in Goldberg?
answer
Idea that he had other benefits in Mathews; not based on income (lies). If you lost disability benefits, have welfare as an alternative you can apply for
question
Did the Matthews courts overrule Goldberg?
answer
Nope.
question
Has Goldberg been applied in cases after Matthews?
answer
No
question
Explain each of the three Matthews factors and how the test works.
answer
C < P x V
C= Cost of added procedures
P= Probability of increased accuracy
V= Value of preventing the error/cost of error for the claimant
C= Cost of added procedures
P= Probability of increased accuracy
V= Value of preventing the error/cost of error for the claimant
question
How is the Matthews analysis different from the due process analysis in criminal cases?
answer
Criminal cases get full due process rights;
Mathews is cost-benefit analysis
Mathews is cost-benefit analysis
question
Why is Matthews a break from the Warren Court?
How is it a response to the effect of Goldberg?
How is it a response to the effect of Goldberg?
answer
More conservative
question
How does the Matthews analysis dovetail with discretionary decisionmaking as a defense to tort claims against the agency?
answer
If it was within agency discretion, and they did CBA and took away your rights on purpose, too bad, you gots no rights
question
What is the Matthews analysis in the school suspension and paddling cases? (Use these cases to show how the rights diminish as the injury caused by the punishment decreases.)
answer
CBA (cost of not doing v. cost of doing it?)
De minimis test
De minimis test
question
Why are courts more deferntial when universities are resolving academic matters than matters that are common to all business?
answer
Expertise
question
What are alternative remedies to due process claims?
answer
Defamation or contract claims
question
Why are these alternatives to due process sometimes better for your client? Disadvantages of an alternative remedy?
answer
Attorney's fees
question
What is the standard for disqualifying an administrative decisionmaker for bias?
How will this be harder or easier that disqualifying an Article III judge?
How will this be harder or easier that disqualifying an Article III judge?
answer
Irrevocably closed mind
Harder to DQ a Article III Judge
Harder to DQ a Article III Judge
question
Why is separation of functions a problem for agencies, such as the FCC, where decisions are made by the commissioners themselves?
What does APA section 554(d) provide in these circumstances?
Does this mean that there are no separation of function requirements in these hearings?
What does APA section 554(d) provide in these circumstances?
Does this mean that there are no separation of function requirements in these hearings?
answer
It's a problem if commissioner relies on prosecutor to write opinion
Members can talk to other people;
Members can talk to other people;
question
What happened in Texaco, Inc. v. FTC that allowed defendants to challenge the decisionmaker?
How might this have affected the comments by the EPA Secretary about the BP spill?
How might this have affected the comments by the EPA Secretary about the BP spill?
answer
FTC Chair made a speech and promised that oil company would be found in violation - def too much.
question
What did the Pillsbury case tell us about the limits on Congressional meddling in adjudications?
answer
If enough time passes, agency can no longer disqualified for bias
question
What does Pillsbury tell us about the allowable limits of congressional case work?
answer
Just can't tell the agency how to act
question
1. Why do legislatures authorize agencies to make rules, as opposed to doing everything by statute?
2. What are political reasons to leave it to the agency?
3. What about expertise?
2. What are political reasons to leave it to the agency?
3. What about expertise?
answer
1. Efficiency;
2. It does not harm political careers;
3. Agencies presumably have more expertise and time than congress
2. It does not harm political careers;
3. Agencies presumably have more expertise and time than congress
question
How does a detailed statute like the Americans with Disabilities Act affect the room for rulemaking? Why might Congress not want to give much room for rulemaking?
answer
Less room in more specic statutes; may be a politically hot topic and we want to confine them
question
How does a detailed statute like the Americans with Disabilities Act affect rule-making?
Why might Congress not want to give much room for rulemaking?
Why might Congress not want to give much room for rulemaking?
answer
Less room in more specic statutes; may be a politically hot topic and we want to confine them
question
What is the advantage to giving the agency broad authority?
answer
Flexibility to deal with issues
question
Why would a health agency need broad authority to respond to a public health emergency such as bird flu?
answer
To act quickly and take steps needed at the time
question
What are risks to legislative control when the legislature gives the agency broad authority?
answer
Separation of powers
question
Explain how rulemaking improves the efficiency of government and makes it easier for regulated industries and individuals to know their duties.
answer
...
question
How can you use rulemaking to narrow the issues in adjudications? What is an example from disability law?
answer
Don't have to argue it in adjudication
question
What are the key parts of the APA definition of a rule?
answer
551(b)
question
Does the APA allow retroactive rules?
answer
No; problematic with penalties (such as EPA penalties that go back in time)
question
Could Congress enable retroactive rules? What legal issues might it raise?
answer
No idea, but probs nah; ex post facto, due process issues
question
How do we know whether we are looking at a rule or an adjudication?
answer
Rule is broad; adjudication is specific
question
The city council sets a tax rate for real property. Rulemaking or adjudication and why? DO you get a hearing to contest the rate?
answer
Rule; nope
question
The tax assessor's office sets the value of your house for property tax purposes. Rulemaking or adjudication and why? Do you get a hearing to contest the valuation?
answer
Adjudication; yes but do Mathews for CBA so maybe nah
question
What are the key factors to argue in questions of whether a proceeding is an adjudication or a rulemaking?
answer
Specificity
question
Why is there no right to individual due process in rulemaking?
What is the substitute for individual due process in rulemaking?
Is this constitutionally required?
How would you argue this?
What is the substitute for individual due process in rulemaking?
Is this constitutionally required?
How would you argue this?
answer
Inefficient; notice and comment or formal adjudication, basically legislation and you don't get DP for that; yes, because this is quasi-legislative, must go through bicameralism and presentment or some adequate substitute
If we say no constitutional requirement, argue that this is a legislative rule and you do not have DP rights OR argue alternatively that this is an executive agency making an interpretion
If we say no constitutional requirement, argue that this is a legislative rule and you do not have DP rights OR argue alternatively that this is an executive agency making an interpretion
question
What is a legislative rule?
answer
Notice and comment or formal rule
question
What is the legal effect of a legislative rule that has been properly promulgated?
answer
Legally binding on all parties
question
After a legislative rule has been in place for several months, are there limits on challenging it in court?
answer
Not if it's unconstitutional; have to attack procedure pretty quickly
question
What is rulemaking ossification? How does it drive agencies to use more non-legislative rules?
answer
How a rule is made; don't want to go through notice and comment
question
What is the risk to the agency if it uses an interpretive rule and the court says it should have been a legislative rule?
answer
Has to start over...boo!
question
What is a non-legislative/interpretive rule?
What else are these called?
What else are these called?
answer
Interpret law; orders
question
What is the legal effect of an interpretive rule?
answer
None
question
How would you argue that an interpretive rule is not covered by 553, even though they are mentioned in 553?
answer
It's an exception
question
What is the benefit to the regulated parties of having interpretive rules?
answer
Guidance on how the agency will act
question
What factors do the courts consider when determining whether an interpretive rule is really a legislative rule, requiring notice and comment?
answer
Substantial impact and legally binding/force of law test
Does it create a right or impose an obligation?
1) In the absence of a rule, could the agency enforce the law?
2)Interpret legal or make policy?
Does it create a right or impose an obligation?
1) In the absence of a rule, could the agency enforce the law?
2)Interpret legal or make policy?
question
Explain the factors for or against an interpretive rule requiring notice and comment
I.e., that it is really a legislative rule.
I.e., that it is really a legislative rule.
answer
(a) Whether in the absence of the rule there would not be an adequate basis for enforcement action or other agency action to confer benefits or ensure the performance of duties
(b) Whether the rule interprets a legal standard or whether it makes policy
(c) If the agency is interpreting a legislative rule, whether the claimed interpretative rule is consistent with the legislative rule it is supposedly interpreting
(d) Whether the agency contemporaneously indicated that it was issuing an interpretative rule
(e) Whether the person signing the agency document had the authority to bind the agency or make law
(b) Whether the rule interprets a legal standard or whether it makes policy
(c) If the agency is interpreting a legislative rule, whether the claimed interpretative rule is consistent with the legislative rule it is supposedly interpreting
(d) Whether the agency contemporaneously indicated that it was issuing an interpretative rule
(e) Whether the person signing the agency document had the authority to bind the agency or make law
question
What do the Hoctor and Picciotto cases tell us about how to argue the distinction between legislative and interpretive rules?
answer
Hoctor - 8 foot fence case
question
How is a general policy statement different from an interpretive rule?
answer
They're not - TRICK QUESTION
question
What is prosecutorial discretion and how does it fit in this analysis?
answer
Prosecutorial discretion means they don't have to follow the policy statements
question
Can a non-legislative rule modify a legislative rule? What is the result if they conflict?
answer
Anon-legislative rule cannot modify a legislative rule and if the rule conflicts, the legislative rule must be followed
question
What are the limits on providing incentives to comply with non-legislative rules?
answer
Don't do it? The incentives cannot be coercive
question
Why did the court in Chamber of Commerce v. U.S. Dept. of Labor find that promising to reduce inspections for complying firms was improper?
Could the agency have required compliance if it had promulgated the rule as a legislative rule?
Could the agency have required compliance if it had promulgated the rule as a legislative rule?
answer
Can't actually change enforcement
question
Does publication matter in deciding if a rule is a legislative rule?
answer
No
question
1. Must interpretive rules be published in the Federal Register (FR)?
2. What does failure to publish indicate?
3. What if the rule is published online, but not put in the FR?
2. What does failure to publish indicate?
3. What if the rule is published online, but not put in the FR?
answer
1. No
2. Nothing
3. If it's not a legislative rule it doesn't have to be in FR
2. Nothing
3. If it's not a legislative rule it doesn't have to be in FR
question
What is a formal rulemaking?
answer
Like a trial
question
When is a formal rulemaking required?
answer
Only when it says on the record after opportunity for a hearing
question
Why is formal rulemaking disfavored by the courts?
answer
Expensive
question
What are the requirements for notice and comment (informal) rulemaking?
answer
Must publish in federal register
question
What has to be published in the register?
answer
See statute list; notice which contains the proposed rule
question
What does the agency have to do with comments?
answer
Respond to them
question
Why can't the record in rulemaking be supplemented in most cases when the rule is challenged in court?
When can it be supplemented?
When can it be supplemented?
answer
Cannot be supplemented b/c of notice (not enough opportunity);
Supplementation can occur so long as there is explanation as to why the original notice was adequate
Decisions cannot be based off anything you added
Supplementation can occur so long as there is explanation as to why the original notice was adequate
Decisions cannot be based off anything you added
question
When does the APA allow legislative rules to be made without notice and comment? (Exclude formal rulemaking.)
answer
Emergency and impracticality; interim final rules; secrecy; military and foreign affairs
question
What are the options for getting comments for emergency rules?
answer
Do it later
question
What are the requirements for proving proper notice of the contents of a rule? (Be specific, using Chocolate Manufacturers Ass'n as an example.)
answer
Logical outgrowth test
question
How does the notice provision in rulemaking change the issues in ex parte communications as compared to adjudications or Article III trials?
answer
In rulemaking, ex parte communications pretty lax. Anything prior to the notice doesn't matter, but after could have an issue if anything goes beyond the notice. The issue there is not the ex parte communications, just that agency went beyond the scope of the notice
question
When are ex parte communications an issue in rulemaking?
answer
When it changes the scope of the notice
question
Discuss the limitations on ex parte communications and political influence in rulemaking. What was the issue in Volpe and how was the ex parte issue resolved on appeal?
answer
Everything done publicly with public comments. Issue in Volpe was congressional pressure re rulemaking - it's hard to prove congressman changed the scope of the rule
question
Are contacts with the President ex parte contacts? Are they improper?
answer
No and no
question
How are the problems of bias and prejudice different in rulemaking as opposed to adjudications?
answer
We don't care about bias in rulemaking because you need science
question
What is the standard for disqualifying the secretary for bias in rulemaking? Is it likely to happen?
answer
Irrevocably closed mind; nope
question
What did Vermont Yankee tell us about the power of courts to change the procedures for rulemaking?
answer
Can't
question
How would you argue that there is no constitutional right to public participation in rulemaking?
answer
Constitutionally adequate substitute for bicameralism and presentment vs. this is executive and you don't have right to comment because its just enforcing rules of Congress
question
In broad terms, what does Executive Order 12866 requrie an agency to consider when making rules?
answer
economic impact of $100 million or more, have to review; CBA
OIRA has 90 days to review and can add a 30 day extension
OIRA has 90 days to review and can add a 30 day extension
question
After Chadha eliminated the legislative veto, how did Congress assure it would have advance notice of new rules? What must it do if it wants to legally (as opposed to politically) block or change a new rule?
answer
Passed Congressional Review Act; gives them time to alter statute if they want to do something - must be sent to them 60 days before notice; change enabling statute
question
What is an unfunded mandate? Why are these politically controversial? Examples?
answer
...
question
How would you use Skidmore and Hearst in argumentation over the applicable standard for a court to review the agency's finding in a given case?
answer
...
question
How do you use the two Chevron steps in arguing a case?
answer
...
question
What is step one in the court's analysis in Chevron?
answer
Whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter
question
What is step two in the court's analysis in Chevron?
answer
If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute
question
How does Chevron deference fit with the political control of agencies?
answer
...
question
Does the plain language of the Food and Drug Act appear to give the agency jurisdiction over tobacco?
answer
Yes
question
Why does the Food and Drug Act seem to require that tobacco would have to be banned if it was under the authority of the FDA?
answer
...
question
What does it mean to say that the court used a Chevron step zero in Brown and Williamson. What did the Court look to before it analyzed what the plain language means? How would you use this technique in other cases?
answer
...
question
How did the Mass v EPA court use the same type of analysis from Brown and Williamson to determine congressional intent?
answer
...
question
How did the Mass v. EPA court handle the standing issues, in particular, redressability?
answer
...
question
Why did the court in King v. Burwell not want to leave the decision about the ACA to the IRS?
answer
...
question
Why does the King v. Burwell court's search for congressional intent resemble Brown and Williamson?
answer
...
question
What does it mean when the court says a decision is too important to leave to the agency? Can a statute be unintentionally ambiguous?
answer
...
question
What was the agency action in Mead? How much process and finality is involved with that action? How does this lead to a different result from Chevron? What is the general principle in Mean that you can use in other cases?
answer
...
question
What are the Barnhart factors for evaluating agency persuasiveness?
answer
Importance of interpretation to agency policy,
Period of time agency held the view,
Legal expertise of the agency,
Complexity of the problem
Period of time agency held the view,
Legal expertise of the agency,
Complexity of the problem
question
How do you use the series of cases we have discussed from Skidmore to Barnhart as tools for arguing either side of any statutory interpretation case?
answer
...
question
What is the key to a successful argument by the agency?
answer
...
question
How can an agency bind a regulated party without using a notice and comment regulation, while limiting the avenues for judicial review? (Look at Public Citizen v. DHHS)
answer
...
question
What does Auer/Seminole Rock tell us about deference to an agency's interpretation of its own regulations?
answer
...
question
How would you argue that the world of rulemaking has changed since the Seminole Rock case?
answer
...
question
Assume that a court interprets a statute before an agency promulgates regulation under the statute. What would the court need to say about the interpretation to preempt a subsequent regulation by the agency that would conflict with the court's interpretation? Assuming the court did not say this, must the court defer to the agency if the agency goes against the court's original ruling when it promulgates the regulation?
answer
...
question
In areas where more than one agency has legal authority over a regulated activity, which one, if any, does the court defer to?
answer
...
question
How do you analyze the deference issue when an agency first raises an interpretation during litigation?
answer
...
question
When might an agency's views during litigation might be entitled to some deference?
answer
...
question
If you represent the agency, how do you present your arguments to persuade the court to support the agency interpretation?
answer
...
question
If you are opposing the agency, how do you present your arguments against deference to the agency?
answer
...
question
An agency promulgates a rule that is appropriate for most workplaces, but one industry segment cannot comply because of the structure of their workplaces. Can the agency avoid having the court finding the rule is arbitrary and capricious by promising not to enforce the rule against these employers? What would you advise your client if the agency makes this offer? What would you want from the agency?
answer
...
question
The Americans with Disabilities Act is very detailed and does not leave the enforcement agencies much room for discretion in setting standards in many areas. Why did Congress write the law this way? How does this effectively limit the court's deference to the agency?
answer
...
question
Many laws give very broad authority to agencies with few specific details. This gives the agencies broad discretion. What are the reasons, good and bad, why Congress might not want to give specific direction to agencies? How does this broaden the court's deference to the agency? What is the limit on broad delegations of authority?
answer
...
question
Analogizing to Article III trial practice, why do appeals courts view review of facts differently from the review of law?
answer
...
question
Putting aside the various standards of review, are appeals courts more likely to defer to determinations of fact or law?
answer
Fact
question
What is a hybrid question of law and fact? How do courts review these? How do you use the differing standards of review to support your arguments pro or con in a hybrid case?
answer
...
question
When a hearing officer is overruled by the agency, how should the reviewing court treat the ALJ's opinion? What does the agency need to do if it wants to overrule the ALJ finding? When are the ALJ's findings most persuasive to the courts? When the agency wants to overrule the ALJ on this sort of evidence, such as the credibility of a witness, what would the agency need to show in the record?
answer
...
question
Are agencies in Louisiana able to overrule ALJs in the central panel?
answer
...
question
What did the court find was arbitrary and capricious about the Secretary's actions in Overton Park?
answer
...
question
What does an agency have to do after Overton Park to justify its decisions?
answer
...
question
Did Overton Park change the standard of review of the underlying decision, or only of the completeness of the record? How does this review of the completeness of the record fit with the Chevron line of cases on deference to agency interpretation of law? How does "hard look" review fit into these two approaches?
answer
...
question
What is the general rule on amending the agency record when it is on appeal to the courts? When may the court allow the record to be supplemented by the agency?
answer
...
question
What does the case withdrawing seat belt regulation tell us about procedure for withdrawing a rule? Why did the court require this process, rather than just allowing the rule to be withdrawn?
answer
...
question
How is the seat belt case the logical result of Overton Park?
answer
...
question
How could you argue that State Farm is a hard look case?
answer
...
question
What does the Seatbelt Saga teach us about the politics of agency regulations and the role of lawyers?
answer
...
question
What is the procedure for a non-rule rule? What is the analysis if the agency makes a finding that no regulation is necessary on the energy use of kitchen appliances, and that finding then preempts states from passing their laws or regulations on the subject?
answer
...
question
Is a non-rule rule a final agency action that can be reviewed? How would you argue that this requires notice and comment, and, if so, what would need to be published in the record?
answer
...
question
In the OSHA bloodborne pathogen case, how did the court resolve the allegation that it was arbitrary and capricious to make a rule covering dental practice without providing specific factual information about dentists?
answer
...
question
What are the limits on mandamus that make it of limited use?
answer
...
question
What is the problem with proving that agency action has been unlawfully or unreasonably withheld - how is the choice to act a discretionary function?
answer
...
question
What might be valid reasons for the agency to not act?
answer
...
question
What legal process got the plaintiffs into court in Mass v. EPA?
answer
...
question
What is the statute of limitations for challenging an agency action other than rule? Why is this seldom a problem for enforcement actions? How can you use a petition requesting a rulemaking to start the clock when it has run on a rule?
answer
...
question
When can you claim equitable estoppel for relying on agency advice? Can you get damages for relying on bad advice? What can it be a defense for?
answer
...
question
How does the formality of the advice from an agency matter? Example of when you can rely on the advice?
answer
...
question
Can you rely on an agency mistake about the law or regulation? Jurisprudentially, why not?
answer
...
question
If an appeals court disagrees with an agency's interpretation of law in an adjudication, can the agency relitigate the same interpretation in other adjudications with different parties?
answer
...
question
If an appeals court finds that the agency has promulgated an improper rule, can the agency keep using the rule in other circuits? Does the basis for overruling the regulation matter? If not, why is it different from the court overruling adjudication?
answer
...
question
What is the effect of a nationwide injunction?
answer
...
question
What does the 4th amendment require for a search warrant?
answer
Probable cause
question
What is the Silver Platter Doctrine in criminal law?
What are the limits on the doctrine?
What are the limits on the doctrine?
answer
When a third party turns information over to law enforcement;
law enforcement can't use third party as a tool to obtain information without a warrant
law enforcement can't use third party as a tool to obtain information without a warrant
question
In the context of private data aggregators, how does the Silver Platter Doctrine undermine constitutional protections? How might you argue that there are constitutional limits on the use of third party aggregator data in criminal prosecutions?
answer
All your data is in the hands of third parties so limited privacy interest
question
Should the SIlver Platter Doctrine be affected if third parties sell data to the police? What if the police say that they will pay for new types of data if Equifax collects it?
answer
Nope; doesn't matter
question
What were the See and Camara courts concerns that lead to their modifying the Frank rule? Why would requiring a classic 4th Amendment warrant make it impossible to do most agency searches?
answer
Frank was too borad; said no warrant required for administrative searches
Camara said area warrant was required in administrative searches
See expanded area warrant requirement to commercial businesses
Camara said area warrant was required in administrative searches
See expanded area warrant requirement to commercial businesses
question
What is the area warrant that the See Court created to solve this problem and how does it differ from criminal law warrants? Give examples of factors that might be used to justify an area warrant.
answer
Emergency/exigent circumstances exceptions;
A) Probable cause to issue a warrant must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Can be based upon:
1) Passage of time
2) Nature of the building
3) Condition of entire area
A) Probable cause to issue a warrant must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Can be based upon:
1) Passage of time
2) Nature of the building
3) Condition of entire area
question
Using the Burger factors, be prepared to analyze a hypothetical to determine if a business meets the standards for being pervasively regulated.
answer
A) Pervasively regulated area - Burger (ex. Liquor, Guns, mining, auto dismantling)
1) Substantial government interest
2) Warrantless inspections must be necessary to further the regulatory scheme
3) Scheme must have bounds that give us some constitutional protection (constitutionally adequate substitution for a warrant)
(a) Detailed enough you're on notice you could be inspected
(b) Detailed enough inspector knows what is/not allowed
1) Substantial government interest
2) Warrantless inspections must be necessary to further the regulatory scheme
3) Scheme must have bounds that give us some constitutional protection (constitutionally adequate substitution for a warrant)
(a) Detailed enough you're on notice you could be inspected
(b) Detailed enough inspector knows what is/not allowed
question
What is third party reporting? Common examples?
answer
When a third party reports your actions; such as reporting by therapist when you threaten to harm someone or calling DCFS on Justin
question
What are the three traditional legal privileges that prevent obtaining information from third parties for use in criminal prosecutions?
answer
Attorney Client; Priest; and spousal
question
What is first party reporting? Common examples?
answer
When you file your taxes
question
When can a first party reporting law be unconstitutional?
What amendment does it violate and why?
What does Marchetti v. United States tell us about requiring individuals to keep records of illegal activities?
What amendment does it violate and why?
What does Marchetti v. United States tell us about requiring individuals to keep records of illegal activities?
answer
5th Amendment;
government can't require individuals to keep records of illegal activities
government can't require individuals to keep records of illegal activities
question
How do you distinguish a reporting requirement and a subpoena? What can require the creation of new records?
answer
(a) Subpoenas Directed to specifically named persons rather than categories of people
(b) Subpoenas May require a person to produce documents or testimony (subpoena ad testificandum)
(c) Agency needs specific statutory authority to issue subpoenas
(d) Subpoenas Enforceable through judicial contempt proceedings
(i) Sometimes, agency subpoenas work somewhat like subpoenas issued under court authority
(b) Subpoenas May require a person to produce documents or testimony (subpoena ad testificandum)
(c) Agency needs specific statutory authority to issue subpoenas
(d) Subpoenas Enforceable through judicial contempt proceedings
(i) Sometimes, agency subpoenas work somewhat like subpoenas issued under court authority
question
Your client has been served with an administrative subpoena. What are the options for dealing with the subpoena if your client does not want to comply? What are the Morton Salt factors for contesting a subpoena?
answer
Comply, Fight, Ignore
(a) Subpoena must fall within agency authority Richards factor (Does the agency have proper purpose)
(b) Subpoena cannot be too indefinite or overly burdensome
(c) Must seek information relevant to a proper subject of investigation for the agency
(a) Subpoena must fall within agency authority Richards factor (Does the agency have proper purpose)
(b) Subpoena cannot be too indefinite or overly burdensome
(c) Must seek information relevant to a proper subject of investigation for the agency
question
If you are required to keep a record of a legal activity, such as employee wage and hour laws, can you refuse to produce it because it might incriminate you for not paying your withholding taxes?
answer
No
question
What is the constitutional test for self-incrimination? Can a corporation claim the privilege against self-incrimination?
answer
Nope
question
Is forcing your client to give a blood sample a self-incrimination issue?
answer
No, it's a fourth amendment seizure issue
question
Why doesn't self-incrimination apply in administrative proceedings?
answer
Because it only has to do with criminal due process; only applies in civil proceedings which could result in future criminal liability
question
What is the usual result if your client claims a 5th amendment privilege in an administrative proceeding and refuses to testify? If your client does provide the testimony, may it be used against him in a criminal proceeding? When might a criminal court exclude testimony provided in an administrative proceeding?
answer
Sanctions; yes;
question
How can the DA or the court cure self-incrimination conflicts?
answer
Offer immunity
question
What do we mean when we talk about the original jurisdiction of the United States Supreme Court? Are federal agency actions within the original jurisdiction of the United States Supreme Court
answer
APA gives the judiciary right to review but no, they do not have original jurisdiction
question
Where does jurisdiction for actions that are not part of original jurisdiction come from?
answer
Statutes
question
What is the case and controversy requirement? Can case and controversy be waived by Congress? Why does this prevent advisory opinions from federal courts?
answer
Standing; no; in advisory opinions, there's not conflict or case in front of the court
question
Injury
Causation
Redressability
Causation
Redressability
answer
Injury in fact; concrete and particularize; actual and imminent - fear can be used as an injury, risk, procedural
Causation - there must be a causal connection between the injury and the conduct complained of; fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court
Redressability - must be likely that the injury will be redressed by a favorable decision; remedy must address the problem
Causation - there must be a causal connection between the injury and the conduct complained of; fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court
Redressability - must be likely that the injury will be redressed by a favorable decision; remedy must address the problem
question
What does an association have to show to get standing?
answer
Must show they have at least one member who actually has standing
question
What are the limits on the remedies in association standing cases?
answer
Can't get damages; just injunction or declaratory judgment
question
Why is associational standing important to vindicate individual rights?
answer
Individual may not be able to get standing; but helps to have association; association provides money for this maybe
question
What are the issues with getting standing to challenge agency actions that affect animals?
What if you want to challenge regulations on lab research animals?
What if you want to challenge the regulations on keeping animals in the zoo?
What if you want to challenge regulations on lab research animals?
What if you want to challenge the regulations on keeping animals in the zoo?
answer
Animals don't have standing;
No standing;
One of the few cases where you have standing
No standing;
One of the few cases where you have standing
question
What is the agency required to do when it gets a petition requesting rulemaking?
answer
...
question
What is the special problem with redressability for procedural injuries?
How have the courts relaxed the traditional notions of causation for procedural injuries, i.e., what are examples of how you can show redressability when you cannot prove that the result would have changed if you were given the proper procedure?
How have the courts relaxed the traditional notions of causation for procedural injuries, i.e., what are examples of how you can show redressability when you cannot prove that the result would have changed if you were given the proper procedure?
answer
You just get an injunction; you don't really
question
What did the court find was reviewable in Overton Park where the Secretary's decisions were "committed to agency discretion by law"?
answer
...
question
What are the limits the court has imposed on Congressional authority to take away the judicial right of review of agency actions? Does the original jurisdiction of the United States Supreme Court come into your answer?
answer
...
question
Why were plaintiffs unable to get standing in Clapper v. Amnesty International?
What did they say their injury was?
Why was this not Geerston Seed?
How would you use Snowden's disclosures to argue to the court they should rethink this case?
What did they say their injury was?
Why was this not Geerston Seed?
How would you use Snowden's disclosures to argue to the court they should rethink this case?
answer
They claimed fear as injury and cost of avoidance;
question
What is collateral estoppel? What does a party have to show in order to show that an action is collaterally estopped? What if the agency has lost on the legal point against other parties in a different circuit?
answer
...
question
Does Congress have standing to sue to overturn its own laws?
What is the separation of powers issue?
What is the proper remedy for a congressman who does not like a law?
What doctrine would the court likely use to abstain in these cases?
What is the separation of powers issue?
What is the proper remedy for a congressman who does not like a law?
What doctrine would the court likely use to abstain in these cases?
answer
No;
They have their own bicameralism and presentment process to overturn;
Political question
They have their own bicameralism and presentment process to overturn;
Political question
question
What is non-acquiescence and what policy issue does it raise?
answer
...
question
What is the general rule on which actions are reviewed by district courts and which actions are reviewed by circuit courts? What is it that circuit courts are not in a position to do which district courts may do? Can Congress direct review that would otherwise go to the appeals court to the district court?
answer
...
question
What was the role of the petition for rulemaking in Mass v. EPA?
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Entire basis for getting standing; reasons for denying standing were arbitrary or capricious
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As soon as you convince the court that you have a right to review, you have to show the court that there is a final agency action to review. Why is this a constitutional requirement?
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What is a facial challenge to a regulation or agency policy? Why are facial challenges disfavored by the courts?
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What additional information does the court get when it requires the plaintiff to wait until there is enforcement?
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How would you analyze the finality question in challenges to non-legislative rules?
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In Mass v. EPA, what was the evidence before the court that showed that Congress had been aware of global warming? How did this affect the court's analysis in the case?
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Treaties/protocols/science;
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What was the final agency action problem in the Standard Oil adjudication?
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What was the standing problem before the court in Mass v. EPA? Which elements were at issue? What role was the state playing in the representation of its citizens? How did the court resolve the standing issue?
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Problem was whether Mass could show standing; they showed a particularized standing because they were losing land. States have a special interest in the case. Government says causation issue. THis was a procedural injury, remember that. State was playing a quasi-sovereign role in representing its citizens.
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In Mass v. EPA, what might the agency have said that would have satisfied the court and have avoided this case? What was the conflict with DOT? What was the problem these rules might cause for the Department of State?
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Just that it was not the politically correct time to do it - then it would've been discretionary and political question; DOT regulates cars (DOT does have regulation but it doesn't mean EPA can't regulate these areas if it affects air pollution); international relations, maybe
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Parents of children with ADHD are suing the FDA to force it to take enforcement action against a Louisiana physician who is selling a crayfish based ADHD treatment over the Internet. Assume this is within the FDA's legal powers, but FDA does not think it is worth the effort. How would you defend the agency's refusal to act in this case?
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Your corporate client is concerned about a new agency guideline that seems to require it to engage in costly relabeling of its main product line. You have filed a challenge to the guideline. The enabling law is silent on the right to judicial review of the agency's actions. The agency says there is no final agency action because this is just an interpretation of the statute that does not change legal rights. The agency has asked the court to dismiss your challenge as premature, arguing that your client will get its day in court if the agency brings an enforcement action against your client.
What is your response to the agency position that there is no statutory provision allowing a challenge until the agency applies the statute?
How does the later Block case modify this Abbott driven claim to reviewability? How would you restate Block as a zone of interests case?
What is your response to the agency position that there is no statutory provision allowing a challenge until the agency applies the statute?
How does the later Block case modify this Abbott driven claim to reviewability? How would you restate Block as a zone of interests case?
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Judicial review is presumed. (Abbot Labs). So if the statute is silent, we assume Congress wanted judicial review based on APA.
Block may have said you don't have standing because not the beneficiary of the statute. Zone of interest just means the statute must cover you.
Block may have said you don't have standing because not the beneficiary of the statute. Zone of interest just means the statute must cover you.
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Ranchers do not want their irrigation water used to help endangered species. They contest the EIS (environmental impact statement) supporting the release for the endangered species. (Bennett v. Spear, 520 U.S. 154 (1997). Standing or not and why?
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How was the zone of interest different between a trade organization who wanted the EPA to have more rigorous standards for waste treatment (Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C. Cir. 1989)) and a company contesting whether a CFC replacement met the statutory requirements? (Honeywell International, Inc. v. EPA, 374 F.3d 1363 (D.C. Cir. 2004))
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How did Lexmark simplify zone of interests analysis so that it is just another example of statutory construction?
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What is exhaustion of remedies?
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What are the APA requirements for exhaustion of remedies?
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What does Portela-Gonzalez (the civilian employee of the Coast Guard who was contesting her firing) tell us about common law exhaustion as compared to APA exhaustion?
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Put exhaustion of remedies into the larger administrative law context: Why is failing to exhaust your remedies (if required and not within an exception) a fatal error that the court cannot correct on equitable grounds, i.e., why does it mean standing fails?
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What are the exceptions to exhaustion of remedies?
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Why might you choose to go through the agency appeals process even if you could go directly to court under an exception, or because exhaustion is not required for your case?
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What is administrative issue exhaustion?
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If you are given a fact situation, how would you analyze it to determine whether the court might waive issue exhaustion and what your argument should be? How would the Matthews analysis fit in your argument? Jurisprudentially, how do you argue that it is OK to waive the failure to present all the issues, given that exhaustion itself cannot be waived?
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What is the futility doctrine and what do you have to do to successfully invoke it?
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What is ripeness?
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How is ripeness used in the analysis of whether there is an injury that satisfies standing requirements?
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Why is a final action required before a case can be ripe?
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Thinking about Abbot Labs with Toilet Products, how do you analyze whether a case with a final agency action is ripe?
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What are the equitable factors that you have to show to get pre-enforcement review?
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What is the key legal issue the court will be concerned with when deciding whether a case is ripe for pre-enforcement review?
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Thinking about the FDA food action level example, why is the action ripe as to consumers, but not ripe as to food processors?
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Why is getting an injunction critical to pre-enforcement review? What are the factors the court should consider in reviewing a request for an injunction in a pre-enforcement challenge case?
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What are possible agency arguments against granting an injunction?
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How do you analyze whether compliance orders are ripe? What did the court look to in Sackett v EPA to determine that the order was ripe? As counsel to an agency, what would you tell them about how to structure compliance orders after Sackett to avoid the courts finding them ripe for review?
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When does the primary jurisdiction doctrine come up?
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How do the primary jurisdiction doctrine and exhaustion doctrine differ?
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What factors do you argue to the court when there is a primary jurisdiction question?
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What is federal sovereign immunity?
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Why you can't sue Uncle Sam
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Prior to the FTCA, what did you have to do to get compensation for a tort by a federal government employee?
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Had to petition your legislator who had to get a bill passed by Congress which would reimburse you for your claim
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What damage claims does the constitution itself allow?
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Takings and Contracts Clause
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What sort of actions does the FTCA cover?
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Tort
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Where do we look for the law to determine the government's liability for a given claim?
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State tort law
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What types of torts are excluded under the FTCA?
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Military, in a foreign country (law enforcement before Bivens)
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How does Bivens plug a hole in the original FTCA? (Which actions does it cover that were excluded in the original FTCA?)
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Essentially a 1983 for federal officers. If they're not excluded under FTCA, can maybe sue under Bivens
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How was the FTCA amended after Bivens?
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Military no longer excluded
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Can you collect pre-judgment interest or punitive damages under the FTCA? (Ignore the section on death claims)
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No
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What is the procedural prerequisite before going to court under the FTCA?
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Exhaustion of remedies, essentially. Present claim to agency and wait for response. If no response in 6 months, go to court.
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What is the prescription/statute of limitations period for an FTCA claim?
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2 years
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When can you go to court after filing your claim under the FTCA?
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After 6 months if no response, or after receiving a response
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What is the legal effect if you go to court without exhausting these requirements?
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No standing, case dismissed. Pray SOL hasn't run out.
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What is the discretionary function exception?
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If the agency had discretion in doing something, and made a decision to do something, you can't sue them. If agency had the power and did it on purpose, tough luck!
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Why is the discretionary function exception necessary to protect the other political and judicial controls on agencies?
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They're already inefficient - let's not make it worse
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What would be the consequences for agency political control if the only defenses were those ordinarily available in state tort claims, i.e., standard of care rather than the discretionary function defense?
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They would spend all their time in court
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What if the government knowingly and intentionally injures people, as with the Allen case?
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That's fine, and preferred
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What were the lessons of Berkowitz and Varig Airlines? On following regulations and statutes? On drafting regulations to allow flexibility?
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If you don't follow statutes, you're liable.
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How is sovereign immunity different in Louisiana from the federal model?
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We don't have it
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How does LA-FCA modify this rule?
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Creates sovereign immunity in certain situations
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How does the discretionary function defense in the LA-TCA compare to that in the FTCA?
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LA reads the exception more narrowly
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How does the procedure for filing an LA tort claim different from filing under the FTCA?
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You get to go straight to court
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What if the state refuses to pay an LATCA verdict?
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Too bad.
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Which branch must an agency belong to:
1) If the agency can make law - rulemaking authority - or enforce the law - adjudications, orders, or criminal prosecutions?
2) If the agency does not have these powers, i.e., it can on do studies and make recommendations, such as the CBO?
3) If the president appoints the head/heads of the agency?
1) If the agency can make law - rulemaking authority - or enforce the law - adjudications, orders, or criminal prosecutions?
2) If the agency does not have these powers, i.e., it can on do studies and make recommendations, such as the CBO?
3) If the president appoints the head/heads of the agency?
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1) It must be in the executive branch, even if it is an independent agency.
2) It can be in either the legislative or judicial branch.
3) It is in the executive branch.
2) It can be in either the legislative or judicial branch.
3) It is in the executive branch.
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What is a Cabinet Agency?
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An agency, such as DOJ, headed by a presidential appointee, confirmed by the Senate, who can be removed at will.
(No good cause.)
(No good cause.)
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What is an Independent Agency?
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An agency headed by a single member or a group, appointed by the president, confirmed by the Senate. Each member has a term of office and can only be removed for good cause before the term of office expires. (find examples)
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What is the Internal Commission?
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A board, appointed by the president, with terms of office and removable only for good cause that is inside another agency.
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