Documente Academic
Documente Profesional
Documente Cultură
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
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
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
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