Leg Reg Exam - Assignment Essays %

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What are the 3 theories of legislation and regulation in interpreting statutes?

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pluralist, public choice, and proceduralist theories

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focuses on the role of social and economic groups in policy-making

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pluralist

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treat legislation as a transaction between buyers (interest groups) and sellers (legislation)

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public choice

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emphasizes the many obstacles that a bill must pass through before it becomes a law

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proceduralist

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what are the 2 main acts of the CRA of 1964?

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Title VI and VII

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prohibits discrimination by any program or activity that receives federal financial assistance

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Title VI

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prohibits discrimination by covered employers on the basis of race, color, religion, sex, or national origin

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Title VII

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elected every two years; represent incorporated territories

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delegates

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elected every 4 years; represent unincorporated territories

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resident commissioners

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What's the difference between delegates and resident commissioners?

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delegates represent those territories that ARE incorporated; whereas, resident commissioners represent territories that ARE NOT incorporated

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What's the only unincorporated territory?

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Puerto Rico

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Do resident commissioners/delegates vote on the House floor?

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What are resident commissioners and delegates able to do?

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introduce bills, make amendments, vote in committees

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What are the major players in the House and Senate?

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Speaker of the House, Vice President, Committees, Staffers, Lobbyists, Congressional Research Service

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What are the four types of committees?

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select, special, standing, joint

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nonpartisan entity that does research for members of Congress

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Congressional Research Service

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What are the two ways to participate in direct democracies?

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initiatives, referendums

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citizen drafted statute or constitutional amendment placed on the ballot for a popular vote

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initiative

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what are the 2 types of initiatives?

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direct, indirect

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initiative that doesn't need to go through the legislature

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direct initiative

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initiative that must be presented to the legislature first, but can go on the ballot if the legislature fails to approve or amends it unsatisfactorily

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indirect initiative

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generally used to reject proposed legislation rather than to pass new legislation

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referendum

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What are the 2 types of referendums?

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popular and legislative

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refers to the right of voters to refer specific legislation the legislature passed to the voters for approval or rejection by collecting signatures on a petition

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popular referendum

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refers to the ability of elected officials to submit proposed legislation or constitutional amendments to the voters for approval or rejection

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legislative referendum

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where do agencies come from?

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not expressly in the Constitution But contemplated in the President having people to help him, giving him the power to appoint officials, some who are senior Heads of Departments and others who are less important; Art. II (s) 2

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What are the 2 types of agencies?

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executive/cabinet level agencies, independent agencies

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what are the agency tools for implementing statutes?

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agency adjudication via the Administrative Procedures Act

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Agencies promulgate ____ and ____, which is how they enforce their measures (codified in the CFR)

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rules, regulations

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what are the 5 specific ways agencies do their jobs?

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substantive rule making, agency adjudication, initiation of litigation, agency guidance, and advice giving/federal assistance

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What are the specific functions of administrative agencies?

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policy making, distribution of benefits, granting of licenses and permits

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Do agencies have rule-making authority with respect to Title IV of the CRA?

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What are the 2 theories behind statutory sources for agencies?

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common law formalism and the legal process theory

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common law embodies reason and rationality, meaning that statutes are intrusions into the domain of reason by willful, political legislatures

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common law formalism

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courts are no better than legislatures in defining the substance of public policy

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legal process theory

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Statutes are ____ while judicial decisions are ____

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prospective, retroactive

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How is statute retroactivity. limited?

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Article 1 (s) 9 and (s) 10 of the constitution: prohibits both state and federal governments from enacting ex post facto laws, applying to criminal statutes only

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What are the types of ex post facto statutes?

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those criminalizing actions that were legal when committed; those altering the nature of a crime so that it is categorized more severely than it was when committed; those increasing the punishment of a crime; those altering the rules of evidence to make conviction easier

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Where a state law has substantially impaired a preexisting contract and the impairment cannot be justified as a reasonable means to address an important social problem, the _____ may be inviolated

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statute

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What are the two bright line rules we need to know about statute retroactivity from Landgraf v. USI

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(1) there is a presumption against retroactive legislation --> prospectivity is the default
(2) basic consideration of fairness dictates that individuals should have notice of what the law is, so they can conform

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What does the canon of retroactivity apply to?

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only civil cases

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A statute does NOT apply retroactively in the absence of _____________ to give the statute retroactive effect

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clear congressional intent

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Why is the canon of retroactivity only a presumption?

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because retroactivity can serve legitimate purposes, like allowing legislatures to respond to emergencies, correct mistakes, prevent circumvention of a new statute, strong public interest requiring retroactivity

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How do the SOL run if the statute has the ability to be retroactive?

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runs backwards

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What are the 3 early theories of statutory interpretation that are no longer used?

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mischief rule, golden rule, and literal rule

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ask, what is the defect the statute is meant to remedy, and interpret the statute in such a way that remedies the defect

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mischief rule

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take the statute together and construe it giving words their ordinary significance unless doing so produces an absurd result

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golden rule

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gives statutes their plain meaning

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literal rule

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What were two other statutory theories implicated in Rector, Holy Trinity v. US?

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expression units est exclusio alterius (the explicit mention of one thing is the exclusion of another) AND whole act rule (no part of a statute is to be rendered superfluous)

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A broadly worded statute may not be interpreted to apply to conduct that was not intended to be ________

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covered by the statute

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What were the 3 early sources of information from which statutory theories were derived?

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intrinsic sources of meaning, extrinsic sources of meaning, and policy based sources of meaning

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those materials that are part of the official act being interpreted

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intrinsic sources

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the materials outside of the official act but part of the legislative process that created the act

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extrinsic sources

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the sources reflecting social and legal choices derived from the common law/constitution

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policy based sources

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What are the 3 legal process theories?

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textualism, intentionalism, and purposivism

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How are intentionalism and purposivism different from textualism?

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the former 2 are intentionalism based

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Describe intentionalist based theories

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the court's duty is to discern the intent of the representative body and interpret statutes to further that intent

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What 2 types of intent are involved in intentionalism theories?

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specific intent, general intent

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can be defined as the intent of the enacting legislature on a specific issue

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specific issue

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the overall goal or purpose of the legislature

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general intent

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prioritizes the text of the statute at issue by looking for the ordinary, public meaning of the words and phrases in the statute as of the time it was enacted; look at the whole law in statutory context, rather than honing in on isolated words or sections, as faithful agents of the Constitution; most similar to the Golden Rule; would stop with the start of the text without examining other sources

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textualism

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focuses on the specific intent, starting with the text of the statute then examining other sources of meaning; does not need a reason to move beyond the text; faithful agents of the legislature

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intentionalism

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focuses on the general intent and believes that the law is designed to solve certain problems, with every statute having a purpose of enactment; judges should try to resolve the problem with their interpretation of the statute, keeping in mind the statute's purpose; social context is also considered; faithful agents of a well-functioning regulatory regime

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purposivism

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What's the takeaway we should know from Shine v. Shine?

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an obvious mistake in a statute will not be enforced if the result would override common sense and any evident statutory purpose

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What did the Court hold in US v. Locke?

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while it would not allow the literal meaning of a statute to produce a result at odds with the intention of its drafters, with respect to filing deadlines, a literal meaning is appropriate

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What canon do we use in correcting drafting mistakes?

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Scrivener's Error (very narrow)

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How do we apply Scrivener's Error?

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does not give the courts carte blanche to redraft poorly written statutes to correct legislative mistakes; rather, it allows limited authority to fix obvious drafting errors

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What's the general rule when construing statutes while keeping in mind public norms?

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statutes should be construed to be part of a larger body of public norms and values

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What is the plain meaning rule?

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courts presume that the words in a statute have their plain or ordinary meaning

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When does a statute have a plain meaning?

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when there is only one reasonable interpretation that an ordinary speaker of English would take from the text

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Differentiate plain meaning and ordinary meaning

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plain meaning refers to the canon, while ordinary meaning refers to the definition most people think of when hearing the word

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A statute may have a _____ that would not be ordinary when legal authorities impose one

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plain meaning

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When might a plain meaning be different from an ordinary meaning?

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congress has defined the term; the term has been authoritatively construed by the Court; the term has been construed by the specialized community to which it applies; the ordinary meaning is inconsistent with the whole act; the ordinary meaning is inconsistent with the way Congress has used the term in other statutes

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what is the starting point for all statutory interpretation?

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read the statute

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How is the ordinary meaning distinguishable from strict construction?

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strict construction connotes a narrow understanding of words

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How do courts use dictionary definitions?

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offered NOT as evidence but only as aids to the memory and understanding of the court

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Is there a consensus about which dictionary to use for statutory interpretation?

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no (US v. Costello)

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What's the rule on multiple definitions?

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the presence of multiple definitions is not alone enough to show ambiguity; there is no canon that says that the first definition listed is the ordinary meaning

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A term that is undefined in a statute must be given the _____ of the term

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ordinary meaning (Taniguchi v. Kan Pacific Saipan)

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What are the canons per maxims of word association?

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noscitur a sociis, ejusdem generis

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a word is know from its associates; presumption that when a word has more than one meaning, the appropriate meaning should be gleaned from the words surrounding the word being interpreted

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noscitur a sociis

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of the same kind/class/nature; generally a type of Noscitur a Sociis; directs that when general words are near specific words, the general words should be limited to include only things similar in nature to the specific words

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ejusdem generis

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how does ejusdem genesis affect catch-alls?

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when used to interpret a general catch-all phrase, it adds by implication that the phrase is of the same type as those in the list

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What are the grammar canons for statutory interpretation?

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punctuation, serial comma, reddened singula singulis, the last antecedent, whole act rule, rule to avoid redundancy, conjunctive v. disjunctive connectors

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used only as a last resort in construing doubtful statutes; courts will disregard the punctuation of a statute or repunctuate it if need be, to give effect to what otherwise appears to be its purpose and true meaning

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punctuation

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a write should separate each item in a series of items with a comma to make it clear that each item is separate from the others

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the serial comma

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"rendering each to his own;" appropriate when a complex sentence has multiple subjects and either multiple verbs or objects that are incorrectly placed; words are applied to the subjects that seem most properly related by context and applicability; by rendering or associating each object or verb to the appropriate subject, the sentence is correctly understood

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reddendo singula singulis

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a word, phrase, or clause that is replaced by a pronoun or other substitute later in the same sentence or in a subsequent sentence

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antecedent

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when modifying word or phrase is used with a group of obligations or conditions, the modifying phrase is presumed to modify only the condition or obligation that immediately precedes that modifying phrase

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the last antecedent

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if there is a comma between the modifying phrase and the list, the __________applies to all of the antecedents

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modifying phrase

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a provision that may seem ambiguous in isolation is often clarified by the _____________

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remainder of the statute

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_________ is the critical assumption of the whole act rule

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coherence

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what's the presumption of the whole act rule?

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that every word or phrase adds something to the statutory scheme

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the meaning of a term in a statute should be determined in light of the purpose or objective of the statute

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whole act rule

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no provision of a statute should be construed to be entirely redundant; a construction which would leave any part of the language of a statute without effect will normally be rejected

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rule to avoid redundancy

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How is the Rule to Avoid Redundancy related to the Whole Act Rule?

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every word within the statute is supposed to be placed there purposefully and with a certain intent/meaning

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Describe the conjunctive/disjunctive connectors rule

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or = either; and = all

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looks beyond the statute in question to various additional laws addressing an identical or comparable issue

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Whole Code Rule

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What are the substantive policy canons to know?

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statutes in derogation of common law, rule of lenity, presumption against congressional diminishment of American Indian rights, Charming Betsy Canon, presumption against extraterritorial application, and constitutional avoidance

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no statute is to be construed as altering the common law further than its words import; courts should strictly construe statutes in derogation of the common law

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Statutes in Derogation of the Common Law

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When is a statute in derogation of CL?

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when the statute partially repealed or abolishes existing common law rights or otherwise limits the scope, utility, or force, of that common law right

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Which canon have many states abolished?

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statutes in derogation of common law because it results in a power struggle between judicial and legislative branches

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if 2 reasonable interpretations of a penal statute exist, the court should adopt the less penal one

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rule of lenity

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What are the 2 canons of statutory construction applicable to Indian law?

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(1) states may tax NA tribes only when Congress has manifested clearly its consent to such taxation
(2) statutes are to be construed liberally in favor of NA tribes, with ambiguous provisions interpreted to their benefit

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presumption that Congress does not intend to pass statutes that violate international law

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Charming Betsy Canon

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the regulation of conduct beyond the US border

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extraterritorial application

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legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the US

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presumption against extraterritorial application

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if one reasonable construction of a statute would most probably violate the Constitution and another reasonable construction would be constitutional, the court should prefer the latter

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constitutional avoidance

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Congress has the ability to delegate such power to agencies pursuant to the Constitutions N and P Clause so long as Congress provides intelligible principles or standards for agencies to use when exercising that power

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old non delegation doctrine

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focuses on whether the legislature has provided sufficient standards to limit the scope of the agency's authority

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modern non delegation doctrine

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When Congress confers decision-making authority to agencies, it must set forth in a legislative act an______ to which the person or body authorized to act is directed to conform

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intelligible principle

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Why was the legislative veto held unconstitutional?

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(1) employed only a subset of Congress, creating unicameralism
(2) presentment lacking

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In the absence of statutory restrictions, the president has the power to remove executive officials at will --- is a part of what clause?

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the appointments clause

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high level officials in the executive branch and heads of independent agencies who are not supervised by other executive branch officials

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principal officers

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those whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate

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inferior officers

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How are principal and inferior officers appointed?

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Unless Congress otherwise specified, inferior officers are appointed via the same procedure as principal officers (by the president with Senate advice and consent)

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What does the Appointments Clause say about Congress and inferior officers?

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allows Congress to specify through legislation that inferior officers may be appointed by: (1) the president alone, (2) the courts, or (3) the heads of departments

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Under the doctrine of separation of powers, Congress may not retain power over officials charged with executing the laws except by _____________

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impeachment

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the constitution grants the ____ the sole power to remove executive officers

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President

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The President's power to remove an executive branch official is not applicable to officials with ____ or ___ functions

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legislative, judicial

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Which case increased the power of Congress to restrict the President's ability to remove executive branch officials

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Morrison v. Olson

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A president may not be restricted in his ability to remove a _____, who is in turn restricted in his ability to remove an inferior officer, because such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed

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principal officers

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a directive issued by a president to implement or interpret federal law

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executive order

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how does the president have the power to execute executive orders?

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assumed this power pursuant to their authority to take care that the laws are faithfully executed

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Executive orders are not ____ powers

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unfettered

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If a president deviates from congressional intent or exceeds the constitutional powers delegated to the executive, the ____ can be invalidated by the court

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executive order

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governs the process by which the federal agencies develop and issue regulations including requirements for publishing notices of proposed and final rule making in the Federal Register

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Administrative Procedures Act

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the official journal of the federal government that is published daily

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federal register

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What are the four sections of the federal register?

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presidential documents, rules, proposed rules, notices

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contains documents the president must publish (i.e. exec orders and presidential proclamations) and documents the president decides to publish (i.e. presidential memos)

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presidential documents

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contains documents with final legal effect and general applicability to the public that amend the CFR and will be codified in the annual revision; must be a FINAL RULE to be included here

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rules

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contains documents that announce possible changes to the CFR and solicits public comment on proposals, such as notices of proposed, including advanced notices of proposed rule making and petitions for rulemaking

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proposed rules

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contains documents describing official actions and functions of an agency that affect the public or provide important information, but do not amend the CFR

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notices

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What are the other general duties of the APA?

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provides opportunities for the public to comment on notices of proposed rule making; addresses other agency actions; provides standards for judicial review if a person has been adversely affected by an agency's action

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All of the APA is subject to whatever the ______ says

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underlying statute

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What are the 2 ways the APA provides for policy-making?

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rule making and adjudication/orders

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the process for making, amending, or appealing a rule

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rulemaking

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the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy

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rule

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the agency process for the formulation of an order

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adjudication

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Everything that is not a rule by an agency is an _____

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order

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The APA states that none of its provisions limit or repeal additional requirements imposed by ____ or otherwise recognized by ____

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statute, law

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When a statute requires that rules be made on the record after opportunity for an agency hearing, what does the APA require?

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the agency to follow the procedures set forth in (s) (s) 556-557

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Agencies may adopt new standards through _____ based on an adjudication of a particular situation, in addition to issuing prospective rules

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individual orders

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The APA does not explicitly state when agencies must engage in rulemaking or adjudication, but ____ is more common

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rulemaking

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When are both forms of policy making proper?

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as long as the agency has the power to use the selected process

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What resources may prescribe a particular policymaking model for agencies?

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the US Constitution, state constitution, APA, the underlying statute, agency's enabling act

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An agency's enabling act may be the same as the _____

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underlying statute

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In Londoner v. Denver, the court held that because the agency's decision was particularized to the situation of each property owner, ____ requires a hearing with the right to present arguments and evidence

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due process

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Where an agency rule applies to a large number of people, the _____ does not require that each person have an opportunity to be heard regarding the rule's adoption

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due process clause

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There is a _____ against formal hearing

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presumption

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What are the situations in which an agency typically does notice and comment rule making?

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(1) Congress may pass a law that directs an agency to take action on a certain subject
(2) an agency can also survey its areas of responsibility and decide to take action on an issue

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What are the factors for an agency deciding to use notice and comment rule making?

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petitions from corporations/interest groups/public; new technologies; new data on existing issues; requests from other agencies; presidential deliveries; lawsuits filed by states/corps/interest groups/public

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What are the requirements of rule making?

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(1) published notice of the proposed rule making
(2) the opportunity for public comment
(3) consideration of the comments
(4) publication of the final rule, with a concise, general statement of the rule's basis and purpose

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What should published notice of the proposed rule making include?

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a statement of the time/place/nature of public rule making proceedings; reference to the legal authority under which the rule is proposed; and EITHER the terms or substance of the proposed rule or a description of the subjects or issues involved

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what are the lengths of time for notice and comment periods?

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between 30-60 days; for complex rule making, 180 days

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an agency may extend/reopen a comment period when is it not satisfied it's received enough _____ or when the comments that have been received make a good case for ____

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comments; allowing more time

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after the comment period closes, an agency may establish a second period for _____

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reply comments

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allows people to respond to the comments that the agency received at the end of the comment period, creating more public dialog

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reply periods

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when the basis for a proposed rule is a scientific decision, the scientific material which is believed to support the rule should be exposed to the view of interested parties

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Portland cement Doctrine

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a communication by an interested party to an administrator made outside the normal comment process

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ex parte contracts

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What is the structure of the final rule like

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preambles (include summary, effective date, and supplementary information); must identify its legal authority for issuing the rule and publish the regulatory text in full

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sets out the problems the rule addresses, describes the facts and data the agency relied on, responds to major criticisms in the proposed rule comments, and explains why the agency did not select other alternatives

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Supplementary Information of the rule

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All final rules published in the Federal Register have to have _____

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preambles

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a final rule is not invalid for lack of adequate notice IF the rule finally adopted is a logical outgrowth of the original purpose

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AMA Logical Outgrowth Test

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A final rule is generally effective no less than ____ after the date of publication in the Federal Register

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30 days

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Should the agency wish to make the rule effective sooner, it must cite ____ as to why this is in the public's best interest

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good cause

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Significant and major rules are required to have a ____ delayed effective date, while general rules maintain that _____ delayed effective date aforementioned

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60 day, 30 day

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What are the two types of rules made in notice and comment rule making?

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significant rules and major rules

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What are the advantages of rule making?

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better decisions, comprehensive decision making, clarity, fairness, efficiency

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promulgating a rule based on the context of actual court cases (creating case law on an issue)

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adjudication

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Pursuant to (s) 554 of the APA, _____ is required in every case of adjudication stated to be determined on the record after opportunity for an agency hearing, subject to statutory exceptions

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formal adjudication

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absent _____ mandating formal adjudication, the decision of whether to use formal procedures is in the agency's discretion

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clear statutory language

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what are the two types of adjudication?

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formal and informal

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decisions are made using inspections, conferences, and negotiations; a type of adjudication

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informal adjudication

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There is a ____ in favor of formal adjudication

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presumption

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The APA contains a provision, permitting agencies to issue a ____ to terminate a controversy or remove uncertainty

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declaratory order

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considered a third category of agency action but NOT considered policymaking

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interpretive rules

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General notice of proposed rule making shall be published in the federal register EXCEPT when notice or hearing is required by statute, this subsection does not apply to what?

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interpretive rules, general statements of policy, or rules of agency organization/procedure/practice

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an agency rule is subject to the APA's notice and comment requirement if it has the _____

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full force of the law

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What is the four part test to determine if a rule is legislative or interpretive?

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(1) Whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of rules
(2) Whether the agency has published the rule in the CFR
(3) Whether the agency has explicitly invoked its general legislative authority
(4) whether the rule amends a prior legislative rule

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With interpretive rules, there is no ______

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notice and comment period

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____ are non-binding, making them interpretive

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no-action letters

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an agency is required to submit only ______ for notice and comment

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legislative rules

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category in which agencies often make policies internally through operations manuals or internal memos

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policy statements

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the overwhelming majority of policy statements are published on an _____

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agency's website

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a policy statement does not seek to impose, elaborate, or interpret a ____

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legal norm

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a policy statement can be issued at any time without a _____ (exemption (s) 553 APA)

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comment period

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in making policy statements, agencies are obligated to follow their own _____ if they have been formally adopted through notice and comment procedures

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procedural rules

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If a rule was not formally adopted through notice and comment, courts can only invalidate agency action when there was what?

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detrimental reliance by a member of the public AND agency intent to benefit with the adoption of the informal rule

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What are the problems with policy statements?

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sometimes aren't published; due process issues; public policy issues

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What are the types of legislative oversight over agencies?

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delegation, power of the purse, oversight hearings and investigations, congressional review act, informal communications with agency officials, appointments, and legislation providing Congress with a one house veto

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federal agencies only have the power that congress delegates to them

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delegation

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congress can increase, decrease, or withhold funding from agencies

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power of the purse

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What does congressional approval of agency funding require?

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(1) the enabling statute for the agency or another statute that provides authorization of legislative appropriations AND (2) agencies must send their budget requests to the OMB annually for review before congressional approval

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preparation for congressional hearings can severely burden an agency's resources, leaving it with fewer resources to devote to the agency's mission

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oversight hearings and investigations

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stating that agency rules can be rejected by a resolution that passes both House and Senate and is presented to the President

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Congressional Review Act

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What does the incompatibility clause of the constitution say?

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if you are in the house/senate, you cannot simultaneously be a civil servant (work in a federal agency)

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What are the types of executive oversight?

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appointment of principal officers, removal power, OMB, the patronage system

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prior to the passage of the APA, agency decisions were not _____

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reviewable

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what are the 2 primary sources of grant for judicial review?

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agency enabling statutes AND (s) 704 of the APA

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the whole or part of an agency rule, order, license, sanction, relief, or the equivalence or denial thereof, or failure to act

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agency action

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SCOTUS requires that those challenging agency action identify the _____ that is being challenged

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specific agency action

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When is judicial review not available?

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when judicial review is precluded by statute and when agency action is committed to agency discretion

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Actions are committed to an agency's discretion when there are what?

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deeming statutes and no law to apply

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when the statute suggests that Congress intended the agency to have final authority over a decision

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deeming statutes

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____ is not available when governing statutes are so broad that there is no statutory standard to judge the legality of the agency's action against

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judicial review

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agency decisions not to engage in rule making are ____, but there is a high level of ___ to the agency

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reviewable, deference

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very strong presumption that prosecutorial decisions are unreviewable under the committed to agency discretion by law exception

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prosecutorial discretion

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What are the standards of judicial review under (s) 706 of the APA?

answer

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
(2) contrary to constitutional right, power, privilege, or immunity
(3) in excess of stat jurisdiction, authority, or limitation, or short of stat right
(4) without observance of procedure required by law
(5) unsupported by substantial evidence in a case subject to (s) 556-557 or otherwise reviewed on the record of an agency hearing provided by statute
(6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court

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an agency's practices and recommendations are not a binding interpretation of the statute, but entitled to respect because they constituted a body of experience and informed judgment regarding workplace practices

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Skidmore v. Swift

question

agency recommendations are not a binding interpretation of the statute, but entitled to respect

answer

Skidmore deference

question

The weight of an agency's opinion depends on what?

answer

the thoroughness of the agency's consideration, the validity of the agency's reasoning, the consistency of its interpretation with earlier and later pronouncements, and other persuasive powers

question

unless congress has directly spoken to the precise issue in question, courts should defer to agencies on question of stat. interp. as long as the agency arrived at a reasonable construction of the statute

answer

Chevron deference

question

When reviewing an agency's construction of a statute that it administers, courts consider what 2 questions?

answer

(1) whether Congress has directly spoken to the precise question at issue, and
(2) if not, whether the agency's answer is based on a permissible construction of the statute

question

what's the underlying theory of Chevron deference?

answer

whenever a statute administered by an agency is ambiguous, Congress intends to delegate interpretive authority to the administering agency

question

Describe the application of the Chevron doctrine?

answer

applies only to statutes administered by the agency whose interpretation is at issue AND applies to agency interpretations of stat. provisions that determine the agency's jurisdiction

question

What doctrine helps determine whether Chevron applies or not?

answer

Mead Doctrine

question

When Congress allows an agency to make a decision less formally, Congress does not intend to give the authority to interpret to the _____

answer

agency

question

What happens when an agency wants to change their statutory interpretation?

answer

they can change their mind as long as the prior interpretation was not found to be compelled by clear Congressional intent

question

defined as the judicial doctrine requiring that those ambiguities in a criminal statute relating to prohibition and penalties be resolved in favor of the defendant if it is not contrary to legislative intent

answer

rule of lenity/anti-deference

question

the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation

answer

Seminole Rock deference

1 of 221

question

What are the 3 theories of legislation and regulation in interpreting statutes?

answer

pluralist, public choice, and proceduralist theories

question

focuses on the role of social and economic groups in policy-making

answer

pluralist

question

treat legislation as a transaction between buyers (interest groups) and sellers (legislation)

answer

public choice

question

emphasizes the many obstacles that a bill must pass through before it becomes a law

answer

proceduralist

question

what are the 2 main acts of the CRA of 1964?

answer

Title VI and VII

question

prohibits discrimination by any program or activity that receives federal financial assistance

answer

Title VI

question

prohibits discrimination by covered employers on the basis of race, color, religion, sex, or national origin

answer

Title VII

question

elected every two years; represent incorporated territories

answer

delegates

question

elected every 4 years; represent unincorporated territories

answer

resident commissioners

question

What's the difference between delegates and resident commissioners?

answer

delegates represent those territories that ARE incorporated; whereas, resident commissioners represent territories that ARE NOT incorporated

question

What's the only unincorporated territory?

answer

Puerto Rico

question

Do resident commissioners/delegates vote on the House floor?

answer

question

What are resident commissioners and delegates able to do?

answer

introduce bills, make amendments, vote in committees

question

What are the major players in the House and Senate?

answer

Speaker of the House, Vice President, Committees, Staffers, Lobbyists, Congressional Research Service

question

What are the four types of committees?

answer

select, special, standing, joint

question

nonpartisan entity that does research for members of Congress

answer

Congressional Research Service

question

What are the two ways to participate in direct democracies?

answer

initiatives, referendums

question

citizen drafted statute or constitutional amendment placed on the ballot for a popular vote

answer

initiative

question

what are the 2 types of initiatives?

answer

direct, indirect

question

initiative that doesn't need to go through the legislature

answer

direct initiative

question

initiative that must be presented to the legislature first, but can go on the ballot if the legislature fails to approve or amends it unsatisfactorily

answer

indirect initiative

question

generally used to reject proposed legislation rather than to pass new legislation

answer

referendum

question

What are the 2 types of referendums?

answer

popular and legislative

question

refers to the right of voters to refer specific legislation the legislature passed to the voters for approval or rejection by collecting signatures on a petition

answer

popular referendum

question

refers to the ability of elected officials to submit proposed legislation or constitutional amendments to the voters for approval or rejection

answer

legislative referendum

question

where do agencies come from?

answer

question

What are the 2 types of agencies?

answer

executive/cabinet level agencies, independent agencies

question

what are the agency tools for implementing statutes?

answer

agency adjudication via the Administrative Procedures Act

question

Agencies promulgate ____ and ____, which is how they enforce their measures (codified in the CFR)

answer

rules, regulations

question

what are the 5 specific ways agencies do their jobs?

answer

substantive rule making, agency adjudication, initiation of litigation, agency guidance, and advice giving/federal assistance

question

What are the specific functions of administrative agencies?

answer

policy making, distribution of benefits, granting of licenses and permits

question

Do agencies have rule-making authority with respect to Title IV of the CRA?

answer

question

What are the 2 theories behind statutory sources for agencies?

answer

common law formalism and the legal process theory

question

common law embodies reason and rationality, meaning that statutes are intrusions into the domain of reason by willful, political legislatures

answer

common law formalism

question

courts are no better than legislatures in defining the substance of public policy

answer

legal process theory

question

Statutes are ____ while judicial decisions are ____

answer

prospective, retroactive

question

How is statute retroactivity. limited?

answer

Article 1 (s) 9 and (s) 10 of the constitution: prohibits both state and federal governments from enacting ex post facto laws, applying to criminal statutes only

question

What are the types of ex post facto statutes?

answer

question

Where a state law has substantially impaired a preexisting contract and the impairment cannot be justified as a reasonable means to address an important social problem, the _____ may be inviolated

answer

statute

question

What are the two bright line rules we need to know about statute retroactivity from Landgraf v. USI

answer

question

What does the canon of retroactivity apply to?

answer

only civil cases

question

A statute does NOT apply retroactively in the absence of _____________ to give the statute retroactive effect

answer

clear congressional intent

question

Why is the canon of retroactivity only a presumption?

answer

question

How do the SOL run if the statute has the ability to be retroactive?

answer

runs backwards

question

What are the 3 early theories of statutory interpretation that are no longer used?

answer

mischief rule, golden rule, and literal rule

question

ask, what is the defect the statute is meant to remedy, and interpret the statute in such a way that remedies the defect

answer

mischief rule

question

take the statute together and construe it giving words their ordinary significance unless doing so produces an absurd result

answer

golden rule

question

gives statutes their plain meaning

answer

literal rule

question

What were two other statutory theories implicated in Rector, Holy Trinity v. US?

answer

expression units est exclusio alterius (the explicit mention of one thing is the exclusion of another) AND whole act rule (no part of a statute is to be rendered superfluous)

question

A broadly worded statute may not be interpreted to apply to conduct that was not intended to be ________

answer

covered by the statute

question

What were the 3 early sources of information from which statutory theories were derived?

answer

intrinsic sources of meaning, extrinsic sources of meaning, and policy based sources of meaning

question

those materials that are part of the official act being interpreted

answer

intrinsic sources

question

the materials outside of the official act but part of the legislative process that created the act

answer

extrinsic sources

question

the sources reflecting social and legal choices derived from the common law/constitution

answer

policy based sources

question

What are the 3 legal process theories?

answer

textualism, intentionalism, and purposivism

question

How are intentionalism and purposivism different from textualism?

answer

the former 2 are intentionalism based

question

Describe intentionalist based theories

answer

the court's duty is to discern the intent of the representative body and interpret statutes to further that intent

question

What 2 types of intent are involved in intentionalism theories?

answer

specific intent, general intent

question

can be defined as the intent of the enacting legislature on a specific issue

answer

specific issue

question

the overall goal or purpose of the legislature

answer

general intent

question

answer

textualism

question

focuses on the specific intent, starting with the text of the statute then examining other sources of meaning; does not need a reason to move beyond the text; faithful agents of the legislature

answer

intentionalism

question

answer

purposivism

question

What's the takeaway we should know from Shine v. Shine?

answer

an obvious mistake in a statute will not be enforced if the result would override common sense and any evident statutory purpose

question

What did the Court hold in US v. Locke?

answer

while it would not allow the literal meaning of a statute to produce a result at odds with the intention of its drafters, with respect to filing deadlines, a literal meaning is appropriate

question

What canon do we use in correcting drafting mistakes?

answer

Scrivener's Error (very narrow)

question

How do we apply Scrivener's Error?

answer

does not give the courts carte blanche to redraft poorly written statutes to correct legislative mistakes; rather, it allows limited authority to fix obvious drafting errors

question

What's the general rule when construing statutes while keeping in mind public norms?

answer

statutes should be construed to be part of a larger body of public norms and values

question

What is the plain meaning rule?

answer

courts presume that the words in a statute have their plain or ordinary meaning

question

When does a statute have a plain meaning?

answer

when there is only one reasonable interpretation that an ordinary speaker of English would take from the text

question

Differentiate plain meaning and ordinary meaning

answer

plain meaning refers to the canon, while ordinary meaning refers to the definition most people think of when hearing the word

question

A statute may have a _____ that would not be ordinary when legal authorities impose one

answer

plain meaning

question

When might a plain meaning be different from an ordinary meaning?

answer

question

what is the starting point for all statutory interpretation?

answer

read the statute

question

How is the ordinary meaning distinguishable from strict construction?

answer

strict construction connotes a narrow understanding of words

question

How do courts use dictionary definitions?

answer

offered NOT as evidence but only as aids to the memory and understanding of the court

question

Is there a consensus about which dictionary to use for statutory interpretation?

answer

no (US v. Costello)

question

What's the rule on multiple definitions?

answer

the presence of multiple definitions is not alone enough to show ambiguity; there is no canon that says that the first definition listed is the ordinary meaning

question

A term that is undefined in a statute must be given the _____ of the term

answer

ordinary meaning (Taniguchi v. Kan Pacific Saipan)

question

What are the canons per maxims of word association?

answer

noscitur a sociis, ejusdem generis

question

a word is know from its associates; presumption that when a word has more than one meaning, the appropriate meaning should be gleaned from the words surrounding the word being interpreted

answer

noscitur a sociis

question

answer

ejusdem generis

question

how does ejusdem genesis affect catch-alls?

answer

when used to interpret a general catch-all phrase, it adds by implication that the phrase is of the same type as those in the list

question

What are the grammar canons for statutory interpretation?

answer

punctuation, serial comma, reddened singula singulis, the last antecedent, whole act rule, rule to avoid redundancy, conjunctive v. disjunctive connectors

question

answer

punctuation

question

a write should separate each item in a series of items with a comma to make it clear that each item is separate from the others

answer

the serial comma

question

answer

reddendo singula singulis

question

a word, phrase, or clause that is replaced by a pronoun or other substitute later in the same sentence or in a subsequent sentence

answer

antecedent

question

answer

the last antecedent

question

if there is a comma between the modifying phrase and the list, the __________applies to all of the antecedents

answer

modifying phrase

question

a provision that may seem ambiguous in isolation is often clarified by the _____________

answer

remainder of the statute

question

_________ is the critical assumption of the whole act rule

answer

coherence

question

what's the presumption of the whole act rule?

answer

that every word or phrase adds something to the statutory scheme

question

the meaning of a term in a statute should be determined in light of the purpose or objective of the statute

answer

whole act rule

question

no provision of a statute should be construed to be entirely redundant; a construction which would leave any part of the language of a statute without effect will normally be rejected

answer

rule to avoid redundancy

question

How is the Rule to Avoid Redundancy related to the Whole Act Rule?

answer

every word within the statute is supposed to be placed there purposefully and with a certain intent/meaning

question

Describe the conjunctive/disjunctive connectors rule

answer

or = either; and = all

question

looks beyond the statute in question to various additional laws addressing an identical or comparable issue

answer

Whole Code Rule

question

What are the substantive policy canons to know?

answer

question

no statute is to be construed as altering the common law further than its words import; courts should strictly construe statutes in derogation of the common law

answer

Statutes in Derogation of the Common Law

question

When is a statute in derogation of CL?

answer

when the statute partially repealed or abolishes existing common law rights or otherwise limits the scope, utility, or force, of that common law right

question

Which canon have many states abolished?

answer

statutes in derogation of common law because it results in a power struggle between judicial and legislative branches

question

if 2 reasonable interpretations of a penal statute exist, the court should adopt the less penal one

answer

rule of lenity

question

What are the 2 canons of statutory construction applicable to Indian law?

answer

question

presumption that Congress does not intend to pass statutes that violate international law

answer

Charming Betsy Canon

question

the regulation of conduct beyond the US border

answer

extraterritorial application

question

legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the US

answer

presumption against extraterritorial application

question

if one reasonable construction of a statute would most probably violate the Constitution and another reasonable construction would be constitutional, the court should prefer the latter

answer

constitutional avoidance

question

answer

old non delegation doctrine

question

focuses on whether the legislature has provided sufficient standards to limit the scope of the agency's authority

answer

modern non delegation doctrine

question

When Congress confers decision-making authority to agencies, it must set forth in a legislative act an______ to which the person or body authorized to act is directed to conform

answer

intelligible principle

question

Why was the legislative veto held unconstitutional?

answer

(1) employed only a subset of Congress, creating unicameralism
(2) presentment lacking

question

In the absence of statutory restrictions, the president has the power to remove executive officials at will --- is a part of what clause?

answer

the appointments clause

question

high level officials in the executive branch and heads of independent agencies who are not supervised by other executive branch officials

answer

principal officers

question

those whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate

answer

inferior officers

question

How are principal and inferior officers appointed?

answer

Unless Congress otherwise specified, inferior officers are appointed via the same procedure as principal officers (by the president with Senate advice and consent)

question

What does the Appointments Clause say about Congress and inferior officers?

answer

allows Congress to specify through legislation that inferior officers may be appointed by: (1) the president alone, (2) the courts, or (3) the heads of departments

question

Under the doctrine of separation of powers, Congress may not retain power over officials charged with executing the laws except by _____________

answer

impeachment

question

the constitution grants the ____ the sole power to remove executive officers

answer

President

question

The President's power to remove an executive branch official is not applicable to officials with ____ or ___ functions

answer

legislative, judicial

question

Which case increased the power of Congress to restrict the President's ability to remove executive branch officials

answer

Morrison v. Olson

question

answer

principal officers

question

a directive issued by a president to implement or interpret federal law

answer

executive order

question

how does the president have the power to execute executive orders?

answer

assumed this power pursuant to their authority to take care that the laws are faithfully executed

question

Executive orders are not ____ powers

answer

unfettered

question

If a president deviates from congressional intent or exceeds the constitutional powers delegated to the executive, the ____ can be invalidated by the court

answer

executive order

question

governs the process by which the federal agencies develop and issue regulations including requirements for publishing notices of proposed and final rule making in the Federal Register

answer

Administrative Procedures Act

question

the official journal of the federal government that is published daily

answer

federal register

question

What are the four sections of the federal register?

answer

presidential documents, rules, proposed rules, notices

question

contains documents the president must publish (i.e. exec orders and presidential proclamations) and documents the president decides to publish (i.e. presidential memos)

answer

presidential documents

question

contains documents with final legal effect and general applicability to the public that amend the CFR and will be codified in the annual revision; must be a FINAL RULE to be included here

answer

rules

question

answer

proposed rules

question

contains documents describing official actions and functions of an agency that affect the public or provide important information, but do not amend the CFR

answer

notices

question

What are the other general duties of the APA?

answer

question

All of the APA is subject to whatever the ______ says

answer

underlying statute

question

What are the 2 ways the APA provides for policy-making?

answer

rule making and adjudication/orders

question

the process for making, amending, or appealing a rule

answer

rulemaking

question

the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy

answer

rule

question

the agency process for the formulation of an order

answer

adjudication

question

Everything that is not a rule by an agency is an _____

answer

order

question

The APA states that none of its provisions limit or repeal additional requirements imposed by ____ or otherwise recognized by ____

answer

statute, law

question

When a statute requires that rules be made on the record after opportunity for an agency hearing, what does the APA require?

answer

the agency to follow the procedures set forth in (s) (s) 556-557

question

Agencies may adopt new standards through _____ based on an adjudication of a particular situation, in addition to issuing prospective rules

answer

individual orders

question

The APA does not explicitly state when agencies must engage in rulemaking or adjudication, but ____ is more common

answer

rulemaking

question

When are both forms of policy making proper?

answer

as long as the agency has the power to use the selected process

question

What resources may prescribe a particular policymaking model for agencies?

answer

the US Constitution, state constitution, APA, the underlying statute, agency's enabling act

question

An agency's enabling act may be the same as the _____

answer

underlying statute

question

answer

due process

question

Where an agency rule applies to a large number of people, the _____ does not require that each person have an opportunity to be heard regarding the rule's adoption

answer

due process clause

question

There is a _____ against formal hearing

answer

presumption

question

What are the situations in which an agency typically does notice and comment rule making?

answer

(1) Congress may pass a law that directs an agency to take action on a certain subject
(2) an agency can also survey its areas of responsibility and decide to take action on an issue

question

What are the factors for an agency deciding to use notice and comment rule making?

answer

question

What are the requirements of rule making?

answer

question

What should published notice of the proposed rule making include?

answer

question

what are the lengths of time for notice and comment periods?

answer

between 30-60 days; for complex rule making, 180 days

question

an agency may extend/reopen a comment period when is it not satisfied it's received enough _____ or when the comments that have been received make a good case for ____

answer

comments; allowing more time

question

after the comment period closes, an agency may establish a second period for _____

answer

reply comments

question

allows people to respond to the comments that the agency received at the end of the comment period, creating more public dialog

answer

reply periods

question

when the basis for a proposed rule is a scientific decision, the scientific material which is believed to support the rule should be exposed to the view of interested parties

answer

Portland cement Doctrine

question

a communication by an interested party to an administrator made outside the normal comment process

answer

ex parte contracts

question

What is the structure of the final rule like

answer

preambles (include summary, effective date, and supplementary information); must identify its legal authority for issuing the rule and publish the regulatory text in full

question

answer

Supplementary Information of the rule

question

All final rules published in the Federal Register have to have _____

answer

preambles

question

a final rule is not invalid for lack of adequate notice IF the rule finally adopted is a logical outgrowth of the original purpose

answer

AMA Logical Outgrowth Test

question

A final rule is generally effective no less than ____ after the date of publication in the Federal Register

answer

30 days

question

Should the agency wish to make the rule effective sooner, it must cite ____ as to why this is in the public's best interest

answer

good cause

question

Significant and major rules are required to have a ____ delayed effective date, while general rules maintain that _____ delayed effective date aforementioned

answer

60 day, 30 day

question

What are the two types of rules made in notice and comment rule making?

answer

significant rules and major rules

question

What are the advantages of rule making?

answer

better decisions, comprehensive decision making, clarity, fairness, efficiency

question

promulgating a rule based on the context of actual court cases (creating case law on an issue)

answer

adjudication

question

Pursuant to (s) 554 of the APA, _____ is required in every case of adjudication stated to be determined on the record after opportunity for an agency hearing, subject to statutory exceptions

answer

formal adjudication

question

absent _____ mandating formal adjudication, the decision of whether to use formal procedures is in the agency's discretion

answer

clear statutory language

question

what are the two types of adjudication?

answer

formal and informal

question

decisions are made using inspections, conferences, and negotiations; a type of adjudication

answer

informal adjudication

question

There is a ____ in favor of formal adjudication

answer

presumption

question

The APA contains a provision, permitting agencies to issue a ____ to terminate a controversy or remove uncertainty

answer

declaratory order

question

considered a third category of agency action but NOT considered policymaking

answer

interpretive rules

question

General notice of proposed rule making shall be published in the federal register EXCEPT when notice or hearing is required by statute, this subsection does not apply to what?

answer

interpretive rules, general statements of policy, or rules of agency organization/procedure/practice

question

an agency rule is subject to the APA's notice and comment requirement if it has the _____

answer

full force of the law

question

What is the four part test to determine if a rule is legislative or interpretive?

answer

question

With interpretive rules, there is no ______

answer

notice and comment period

question

____ are non-binding, making them interpretive

answer

no-action letters

question

an agency is required to submit only ______ for notice and comment

answer

legislative rules

question

category in which agencies often make policies internally through operations manuals or internal memos

answer

policy statements

question

the overwhelming majority of policy statements are published on an _____

answer

agency's website

question

a policy statement does not seek to impose, elaborate, or interpret a ____

answer

legal norm

question

a policy statement can be issued at any time without a _____ (exemption (s) 553 APA)

answer

comment period

question

in making policy statements, agencies are obligated to follow their own _____ if they have been formally adopted through notice and comment procedures

answer

procedural rules

question

If a rule was not formally adopted through notice and comment, courts can only invalidate agency action when there was what?

answer

detrimental reliance by a member of the public AND agency intent to benefit with the adoption of the informal rule

question

What are the problems with policy statements?

answer

sometimes aren't published; due process issues; public policy issues

question

What are the types of legislative oversight over agencies?

answer

question

federal agencies only have the power that congress delegates to them

answer

delegation

question

congress can increase, decrease, or withhold funding from agencies

answer

power of the purse

question

What does congressional approval of agency funding require?

answer

question

preparation for congressional hearings can severely burden an agency's resources, leaving it with fewer resources to devote to the agency's mission

answer

oversight hearings and investigations

question

stating that agency rules can be rejected by a resolution that passes both House and Senate and is presented to the President

answer

Congressional Review Act

question

What does the incompatibility clause of the constitution say?

answer

if you are in the house/senate, you cannot simultaneously be a civil servant (work in a federal agency)

question

What are the types of executive oversight?

answer

appointment of principal officers, removal power, OMB, the patronage system

question

prior to the passage of the APA, agency decisions were not _____

answer

reviewable

question

what are the 2 primary sources of grant for judicial review?

answer

agency enabling statutes AND (s) 704 of the APA

question

the whole or part of an agency rule, order, license, sanction, relief, or the equivalence or denial thereof, or failure to act

answer

agency action

question

SCOTUS requires that those challenging agency action identify the _____ that is being challenged

answer

specific agency action

question

When is judicial review not available?

answer

when judicial review is precluded by statute and when agency action is committed to agency discretion

question

Actions are committed to an agency's discretion when there are what?

answer

deeming statutes and no law to apply

question

when the statute suggests that Congress intended the agency to have final authority over a decision

answer

deeming statutes

question

____ is not available when governing statutes are so broad that there is no statutory standard to judge the legality of the agency's action against

answer

judicial review

question

agency decisions not to engage in rule making are ____, but there is a high level of ___ to the agency

answer

reviewable, deference

question

very strong presumption that prosecutorial decisions are unreviewable under the committed to agency discretion by law exception

answer

prosecutorial discretion

question

What are the standards of judicial review under (s) 706 of the APA?

answer

question

answer

Skidmore v. Swift

question

agency recommendations are not a binding interpretation of the statute, but entitled to respect

answer

Skidmore deference

question

The weight of an agency's opinion depends on what?

answer

the thoroughness of the agency's consideration, the validity of the agency's reasoning, the consistency of its interpretation with earlier and later pronouncements, and other persuasive powers

question

answer

Chevron deference

question

When reviewing an agency's construction of a statute that it administers, courts consider what 2 questions?

answer

(1) whether Congress has directly spoken to the precise question at issue, and
(2) if not, whether the agency's answer is based on a permissible construction of the statute

question

what's the underlying theory of Chevron deference?

answer

whenever a statute administered by an agency is ambiguous, Congress intends to delegate interpretive authority to the administering agency

question

Describe the application of the Chevron doctrine?

answer

applies only to statutes administered by the agency whose interpretation is at issue AND applies to agency interpretations of stat. provisions that determine the agency's jurisdiction

question

What doctrine helps determine whether Chevron applies or not?

answer

Mead Doctrine

question

When Congress allows an agency to make a decision less formally, Congress does not intend to give the authority to interpret to the _____

answer

agency

question

What happens when an agency wants to change their statutory interpretation?

answer

they can change their mind as long as the prior interpretation was not found to be compelled by clear Congressional intent

question

answer

rule of lenity/anti-deference

question

the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation

answer

Seminole Rock deference

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