Administrative Law Spring 2010 Prof.

David Hodas

CONSTITUTION
Art. II

Art. I

Appointments/Removal Officers: President & Senate Inferior Officers: Pres. & Senate President alone, Courts, Head of Dept. Removal Separation of Powers Issues

Congress
Legislative acts of Congress Bicameral approval Presentment to President No legislative veto

Executive
Appointment/ Removal

Art. III

Courts

Delegation of Confirmation Legislative Power (Intelligible Principle)

Agencies
Appropriations Executive / Independent Policy Choice Wyman-Gordon Londoner or Bimetallic?

Formal v. Informal Adjudication No Supreme Ct decision; Cir. Ct approaches: 1. Presumption in favor of formal adjudication (Marathon Oil, Seacoast Anti-Pollution League) 2. Apply Chevron rule: deference to reasonable agency interpretation if statute is ambiguous (DC Cir)

Rulemaking
APA553(c), 556, 557 Presumption against (FECR)

Adjudication
Formal
Few requirements, e.g. record Not arbitrary or capricious Overton Pk, Vermont Yankee

Formal

APA 553 Notice & Comment (Notice issues; Logical outgrowth rule, concise statement, publication, effective date, etc.) No addl procedures imposed by Ct. (Vermont Yankee) Exceptions to N&C: Subject matter, Procedural, Interpretive rules, Policy Statements; good cause

Informal

Informal

APA 554,556, 557

Procedural Due Process Applies?

Rule Judicial Review

Who?: Standing
Constitutional Injury in fact Causation Redressability Prudential No 3rd Party Claim No generalized grievance Zone of interests Statutory Associational Standing

Order

When?
Finality Exhaustion APA vs. common law Ripeness

Whether?
Preclusion Express Implied Committed to agency discretion
1. Outcome (What agency decided Chenery I) Factual Support Substantial evidence test APA 706(2)(E) or arbitrary/capricious std (informal proceedings) Deference to initial decisionmaker Legal Conclusions

Judicial Review

Chevron
1. Govt Action Fed: 5th Amd.; State: 14th Amd. (also State Constitution) 2. Individualized Claim 3. Deprivation of a Protected Interest: Life, Liberty Property Property Interest: traditional definition expanded to include legitimate claims of entitlement Liberty interest: freedom from restraint, unconstitutional conditions (e.g. give up free speech for govt employment); stigma alone from govt action insufficient, must be coupled with a legal impediment. What Process is Due? Balance: 1. Private interest in the hearing (need for the interest and hardship from wrongful deprivation) 2. Fairness / reliability of existing procedures and value of additional procedures 3. Govt interest in prompt deprivation

Procedural Due Process

Deference to agency expertise when Chevron doesnt apply 2. Procedure (How agency reached decision) Correct procedures followed (e.g. rulemaking procedures invalid for adjudication & vice versa) 3. Decision-making Process (Why) Review based only on reasons given by agency (Chenery I): explanation required Arbitrary / Capricious review APA 706(2)(A) Reasoned / rational decision-making: not arbitrary/capricious or clearly erroneous Appropriate factors considered Inappropriate factors not considered 4. Procedural Due Process Constitutional Issues

Skidmore / Hearst

Agency administers law Congress not spoken to precise issue Reasonable agency interpretation Sufficiently authoritative