Leg Reg

Due process requires notice + a hearing when determining individual parcel-holder's tax assessment (when something affects an individual in some capacity, entitled to notice and a hearing)

Notice + a hearing not required to increase tax assessment on all Denver landowners. (when the government does something to a big group of people, procedural due process does not apply)

NPRM rules

Arbitrary and capricious standard

Rules of a hearing

Agency decisions

Rules for formal adjudications

Does away with formal rulemaking! The more rigorous formal rulemaking applies if and only if Congress says "on the record after opportunity for an agency hearing." Any other language does not trigger that formal rule making processes

§ 706: No studies => prevented relevant comments => not considering all relevant factors.

§ 553(b): No studies = no opportunity

Also requires a response to commercial feasibility --> must respond to all relevant comments

Notice is adequate if the changes in the original plan are in character with the original scheme, and the final rule is a logical outgrowth of the notice and comments already given. ...

A final rule qualifies as a logical outgrowth if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice and comment period.

Have to show prejudice for Chocolate Manufacturers really to apply

The choice between rulemaking and adjudication lies within the agency's discretion (agencies can make rules through adjudication on a case-by-case basis)

1) Reaffirming Chenery; 2) Agencies are free to change their mind in adjudication as long as there is no argument for detrimental reliance; 3) We don't want to agency to adopt rules in the types of situations that are so fact dependent

Test for whether something is a general statement of policy is whether the policy statement "has the force of law."

Whether something is a general statement of policy depends on: 1. Binding vs. flexible language ("must" vs. "may"); 2. Force of law?; 3. Practical effect on the ground?; 4. Binding on agency staff? (Agency tying its hands?)

When deciding whether something is an interpretive rule, look to: 1. Basis for enforcement in the absence of the rule?; 2. Published in the Code of Federal Regulations?; 3. Based on specific statutory provisions or general legislative authority?; 4. Rule repudiates or is irreconcilable with a prior legislative rule?

How "flat" is the rule? Can the "interpretive" rule be derived from the underlying statute or regulation through a process of interpretation as opposed to arbitrary policymaking?

An administrative order may only be sustained based on the grounds upon which the agency acted in exercising its power

The agency must "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Agency action is arbitrary and capricious if the agency:
a. Relied on factors Congress had not intended it to consider;
b. Failed to consider an important aspect of the problem;
c. Offered an explanation that runs counter to the evidence before the agency;
d. Is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Strong signal that hard look review is not impossible hard look review this is a limit to how much the court can ask

Need reasons to justify switch to a new policy.

1) Nielsen states she "declines to disturb" the Duke memo so this is not a new agency action and under Chenery I, Nielsen cannot raise new reasons. Nielsen memo not a new decision, merely an "elaboration". 2) The Nielson memo was arbitrary and capricious. (1) Duke did not consider whether to preserve the "deferred action" part of DACA. (2) Duke also did not consider reliance interests.

If the pretext is egregious, court could strike it down

Degree of deference to agency interpretation of a statute it administers depends on:
1) the thoroughness evident in its consideration;
2) **validity of its reasoning (well this seems non-deferential)
3) its consistency with earlier and later pronouncements; and
4) all those factors which give it power to persuade, if lacking power to control.

Step 1: Did Congress speak directly to the issue? If yes, that interpretation prevails. If no, go to step 2. Step 2: Is the agency interpretation a permissible reading of the statute?If yes, agency interpretation prevails.

Establishes the major question exception to Chevron

Establishes test for whether Chevron even applies. 1. . Did Congress delegate authority to the agency generally to make rules carrying the force of law? 2. Was interpretation promulgated in the exercise of that authority? If no on either question, agency only gets Skidmore deference.

The only way that Congress can alter legal rights is through bicameralism and presentment. The problem is that the legislative veto did not satisfy the requirements of bi-cameralism and presentment.

The other main school of thought on how to use the canons of construction. Purposivists believe statutory interpretation should seek to achieve the broader purposes of a statute. Purposivists believe the words chosen by Congress are imperfect, and if the precise words chosen don't align well with the policies, then the words should bend to the policies, not vice versa.

Congress should limit their focus to the text of the statute itself, which is the best evidence of how Congress decided to implement its overarching goals

This is how the legislative process works and my preferred theory of interpretation better reflects that process.

Textualists: The legislative process is messy but it is precisely for that reason that we should assume the inconsistencies and omissions are intentional. Someone put them there for a reason, and we can't know whether the statute would have passed without them.

Purposivists: The legislative process is messy! And language is imprecise. We should not assume that every omission or inconsistency is intentional. Legislators vote based on the overall goals of the statute (and rarely read every last word)

This is how the legislative process should work and my preferred theory of interpretation is more likely to encourage it to behave that way

Textualists: Congress should draft statutes carefully, and textualism encourages this. It also furthers "rule fo law" values (predictability, accountability, transparency etc.)

Purposivists: It is hard enough to legislate as it is. Courts should not make it harder.

If something is not EXPRESSLY stated then it was not intended to be included.

Of the same kind. In an enumeration of certain things or conditions which also contains a catch-all phrase, the latter is limited to things or conditions of the same type as those enumerated. Thus, a listing of physical properties which contains the phrase, "and any other thing," would not be construed to apply to intangible matters.

Meaning of a word in a series is affected by others in same series; or, a word may be affected by its immediate context.