Statute (Enabling Legislation): Agencies are creatures of statute and have no inherent power. Agencies must base their exercise of power on an express or implied power granted by statute.
Determine whether the agency was given LEGISLATIVE power (rule-making power):
Delegation doctrine: In order for Congress to create an agency, the enabling legislation must:
Set a relatively clear legislative mandate
Set procedures that guarantee that the agency stayed within the statutory mandate
Provide for judicial review of such agency actions so the court could determine if the agency stayed within the specific mandatory requirements.
Objective: What is the goal of the statute?
Example: prevent inflation, protect right of employees to organize)
Method: What kind of law can the agency make?
Example: prohibit manufacture of motor vehicles, set max prices, mandate
Standard: When can they tell them not to do it?
Example: prices must be fair and equitable, take into account current prices, cost-benefit analysis
This prevents Congress from delegating unfettered, unlimited legislative power to the executive.
It violates separation of powers when Congress fully abdicates its legislative functioning.
No set term of office; can be removed for any or no reason by the President.
Silence on the matter of removal indicates the President has the ability to unilaterally remove the officer.
No board, led by an individual Officer because they serve at the pleasure of the President.
If Executive-Executive Agency, then enabling legislation is presumptively constitutional.
Set term of office; can only be fired for “good cause”.
Good/Just Cause: Any reason given required to fire (other than the Officer refusing to interpret based on the President’s preference). If a statute has a set term of office, this implies “for cause” removal.
Officers are part of the board of directors that run the agency. The board is needed because the agency acts independently of the President and Congress is unwilling to vest this much power in one individual not under the discretion of the President.
The agency violates separation of powers if it:
Impermissibly impedes the president's ability to carry out the executive function.
Unduly Trammels (steppin on da presidency)
So central to the functioning test (basic shit of the presidency)
President hires Officers of the United States subject to a veto by the Senate.
Officer of the United States = all persons who exercise significant authority pursuant to U.S. laws (anyone appointed to board or sole secretary position)
The language "hearing" is present in the enabling legislation
Determine if the grant of judicial power was constitutional:
Union Carbide Integrally Related Test: regardless of whether a cause of action is a private right or a public right, an agency can constitutionally hold Article III power if the cause of action is so closely integrated into the regulatory scheme of that agency.
Determination of “closely integrated”: if the cause of action appears directly in the enabling legislation for that agency for the purpose of making the statutory scheme work.
Agency can hold federal question jurisdiction under Article III over this type of dispute.
The agency’s decisions in these disputes will even be given preclusive effect in federal courts under collateral estoppel and res judicata.
A public right is a civil cause of action where the government is a party.
A private right cause of action is also civil but both parties will be private individuals.
Whether a jury trial is required turns on whether there is a private or public right COA
Public:
Where public rights are litigated, the 7th amendment does not prohibit congress from assigning judicial power to an administrative forum with which a jury would be incompatible. Could have trial by jury but not required.
Private:
is there an analogous common law cause of action that could provide a basis for the 7th amendment applying to this statutory cause of action in Art III courts.
Congress has not yet pronounced on this right to jury trial issue for private rights and following the Union Carbide case which opened up agency proceedings to private rights, there is no clear answer to this question. 7th Amendment only protects common law causes of action. So, if analogous cause of action then jury trial must occur.
Rule: The APA applies to governmental authorities, heads of agencies, or the military outside of the court-martial system that are not one of the following exceptions:
Congress
SCOTUS and inferior courts
President
The office of president is exempt
President is not exempt when doing the work of an agency
State Governmental Agency
Court Martial System
The answer is ALWAYS rulemaking
Rule – §551(4) Is this rule applying prospectively?:
future effect means ONLY prospective legislation is allowed
Rules are almost always prospective in nature
Congress can give retrospective power IF very clearly and specifically in the enabling legislation
Rulemaking §551(5): the agency process for formulating, amending, or repealing a rule
If the agency is exempt under §553, then it is only required to follow notice rulemaking, but if §553 applies, it must follow notice and comment rulemaking.
Always start with § first to see if it is an exempt subject area.
Every rule must be published in the federal register OR the person must have actual and timely notice for the rule to be enforced against the person
Does §553 apply to this agency?
Does §553 apply to this agency?
§553 does NOT apply to actions involving
Military or US foreign affairs;
Agency management or personnel
Public property (like parks);
Loans, grants, benefits (This is a big one because benefit programs make up a lot of agency involvement);
Contracts (just government contracts, not all contracts);
§553 applies to substantive rules that are not within the exempt subject matter
IT WILL BE A SUBSTANTIVE LAW ON THE FINAL
Substantive rules: any rules that create rights, assign duties or impose obligations, the basic tenor of which is not already outlined in the law itself
Interpretative rules = agency statement issued to advise the public of the agency’s construction of a statute that it has the power to administer
First notice: the agency must have published notice of the proposed rule in the federal register
Comment period: the agency must give interested persons an opportunity to make comments (usually 30 days)
2nd publication/final notice: after consideration of the relevant matters presented, the agency must publish a final notice in the federal register
2. The first notice must also include a reference to the legal authority under which the rule is proposed.
3. The first notice must also include an invitation to comment. This is a statement of the time, place, and nature of the public rulemaking proceeding.
4. And a citation to any known data (research/studies) that the agency is relying on to support the rule and information on how to access that data.
The first notice must set for the proposed rule in the federal register.
This includes the terms and substance of the proposed rule. This is required so people are actually informed on what the rule is so that they can make an informed comment. Not doing so would prevent the presentation of relevant comments and could suppress meaningful comments, which is basically the same thing as rejecting comments altogether.
The first notice must also include a reference to the legal authority under which the rule is proposed.
This means that the agency must cite to the enabling legislation applying the delegation doctrine.
This is required so people can make sure that the agency has the legal authority to make the rule.
The first notice must also include an invitation to comment. This is a statement of the time, place, and nature of the public rulemaking proceeding.
This is satisfied with the physical mail address or the electronic address. Allows people to know where to send a comment and how to send the comment.
If there will be an oral hearing, the invitation to comment must include the time and place of the hearing.
There is not a limit on the number of times a person can comment or on who can comment. An interested person, not necessarily a US cit.
Congress intended a meaningful opportunity to participate, so this information is required. The comment period is usually 30 days, but the timing can vary based on the intricate nature of the rule
This is required so people can find the data and use it in their comments.
Comment period: the agency must give interested persons an opportunity to make comments (usually 30 days)
Depending on complexity, there may be more time allotted for review
Agency is required to allow submissions of written data, views, and arguments
The agency also has the option to hear oral presentation of comments
The agency must then consider the relevant matter presented
Final notice must include the rule adopted (the text);
The agency must set for a concise general statement of its purpose AND;
- summary of the comment
- if it relied on facts, the agency must provide the factual basis the rule is based on
- Must reply to major issues that were rejected – must respond to why the agency disagreed with other submissions and proposals
Should touch on all the major issues raised during comments.
It does not have to discuss every fact or opinion included
But it has to be a meaningful statement that enables the reader to see the major issues raised during the comment period
the agency must provide the factual basis the rule is based on
The agency must set forth the facts found to be true and they must show that they considered the relevant facts that support the standards.
They must rationally show the rule is a logical outcome of that analysis. The challenging party has to prove beyond debate that the outcome was not rationale.
ARBITRARY AND CAPRICIOUS
They are still bound by §552.
Rule must be published once in the federal register and then it has the force and effect of law.
If there has been no publication, the rule cannot be enforced against a person unless that person has actual and timely notice of the rule.
Whether the agency was engaged in rulemaking within the scope of its constitutional authority
The rationality of the basis and the purpose of the agency’s rule. Arbitrary, capricious, abuse of discretion: Challenging the analysis in the agency’s published concise, general statement of the rule’s basis and purpose
Chevron Two Step Test
Step 1: Did Congress speak directly to the precise question at issue in the enabling legislation?
Yes: if the intent of Congress is clear and unambiguous, then the court must give effect to the expressed intent of Congress and they can:
Accept the agency’s interpretation as reasonable, OR
Substitute its own judgment (de novo)
No: if it is ambiguous, go to step two
Chevron Two Step Test
Step 2: If there are two or more reasonable interpretations, the court must determine if the agency’s interpretation is based on a permissible or reasonable construction of the statute.
If It is permissible or reasonable: then the court is bound to apply that construction and cannot substitute its own review (executive BINDS the courts)
If it is ambiguous, and the agency has adopted a reasonable interpretation: the court is BOUND by that interpretation even if the court does not agree with it!
If it is impermissible: the court may substitute its own judgment in de novo review notwithstanding the agency’s contrary interpretation
If the agency stayed within the scope of their enabling legislation as required by the delegation doctrine, AND
If the delegation doctrine (Yakus analysis) is met, then this will be satisfied
The agency must articulate a satisfactory explanation. The court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.
Factors:
Show within the four corners of the published final notice that they considered relevant factors;
Did not consider irrelevant factors or factors that congress has not intended it to consider;AND
Can provide a rational connection between the facts presented and the conclusion reached
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
