Regulatory State Sitaraman 2014

8/20/2019 Regulatory State Sitaraman 2014

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Cases

Statutes/Constitution

Regulations

Policy

1. Introduction to Modern Governmenta. Article 1-Congress

i. Power to lay and collect taxes, provide for common defense and general

welfareii. Regulate commerce with foreign nations

iii. “a!e laws that are necessary and proper for carrying into execution theforegoing Powers"

#. Article $-Presidenti. Commander in Chief of ilitaryii. “Advice and Consent" ma!e treaties with % of &enate, can nominate with

advice from &enate 'Am#assadors, &. Ct. (ustices, other officers) Congress can vetoiii. &ection 1- *esting Clause “+xecutive power shall #e vested in the

president of the .&."iv. &ection -a!e Care Clause "&hall ta!e care that the laws #e faithfully

executed/"c. Article -0udicial ranch

i. &. Ct., Congress can create lower courtsii. All Constitutional cases, cases where .&. is a party

d. 2imits of the Common 2aw3 ort and Contracti. 2imitations on Common 2aw Ad(udications in 4eneral p. 56

1. Retrospective rather than prospective$. Reactive rather than proactive. ncertainty '+specially across states7)8. 9nstitutional Competence6. Political Accounta#ility:. Parties v. 9nterested Participants;. Collective Action Pro#lems

ii. Pro#lems with torts1. Reactive$. 9nconsistent. Always “ex post"

8. 0udges are generalists not specialistsiii. Macpherson v. Buick 1!1"# p. $" %Inconsistent&

1. Plaintiff was in(ured when a defective wheel on his car

fell off, defendant didnealer has no duty to inspect

. Privity rule was anti?uateda. Macpherson changed this rule.

iv. Rotsche v. Buick 1!'(# pg. !) %Common la* is unpredicta+le&1. Plaintiff had an accident. echanic who inspected the

car said pieces were missing, #ut factory records approved the car a. uic! provided evidence of extensive

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inspections the car underwent prior to leaving the factory#. Court decided it was the plaintiffifficult to understanda. @aving more information doesneli#erate decision to a#andon the mar!eta. Regulation can help alleviate shortages.

iv. Paternalism1. 4ov


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#. one-cluda+ility0 Costs of excluding

non-paying #eneficiaries who consume the good are no high that no private profit

maximiing firm is willing to supply the good '=ational &ecurity)$. Be need regulation for these #c the mar!et won


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iv. oral1. 9ndividual people dononorsc. +tc.

8. &enate confirmation hearings are more strategica. 0ust trying to put pressure on a guy you

don


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accounta+ility 'this is a +u88phrase)c. Could wor! to undermine what the

political appointee wants to doi. 2ea! to pressii. &tall until the appointee

is goneiii. 7his is *hy it matters

*hat civil servants think9iii. Agencies and the Constitution

1. Constitution doesnissent '@olmes)

a. Congress could a#olish the position

altogether if it wanted to, so why can


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ii. Commission can act as

master in chancery under rules prescri#ed in court-acts as (udicialvi. Morrison v. Alson 1!$$# %Good cause okay 2or in2erior o22icers&

1. Attorney 4eneral was re?uired to investigate high-level

government officialsa. 9f he found reasona#le reason to

proceed, he had to as! a special court to appoint an independent prosecutor who

could only #e removed for “good cause"$. Bas the independent prosecutor a principal or inferior

officerEa. Principal officers can #e removed at

wish of the President#. Court found *as an in2erior o22icer

+ecause the 3G could remove her had limited statutory duties and limited

-. >id the “good cause" re?uirement violate separation of

powersEa. =o #c it did not expand the power of

courts or Congressi. +xecutive still had the

power to initiate prosecutions and

ii. Bhile 9C was “ensuringthat the laws are faithfully executed" 'so executive)

1. Pre

had some influence over special counsel #c A4 still accounta#le

re can do his duty via A4.(. ( 2actors 2or %in2erior& o22icers

a. &u#ordinate to Principal#. “Certain, limited duties"c. 2imited in (urisdictiond. 2imited in tenure

6. nli!e Myers #c there is no attempt #y Congress to

gain a role in removal of executive officials.a. @ere, president still has some power, so

it


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are unconstitutional.#. Any removal restriction depriving the

President of any executive power is unconstitutional.'. ?egislation

a. he 2egislative and the >rafting of 2awsi. 9nitiate #ill in three ways3

1. 9ntroduce own #ill$. 9ncorporate #ill in other legislation. Add idea as an amendment to other legislation8. ills can #e drafted #y anyone.

a. em#er of committee, staff, lo##yist,

executive #ranch 'must #e introduced #y a mem#er of Congress)i. 2egislative history starts

here 'press release, one pager, posts)ii. After introduced, sent to committee

1. Factors in determining which committee3a. *iews of mem#ers#. +xpertisec. Fullness of doc!etd. 6ho is the chairD

i. his person will lead the

discussion.

e. Eou *ant to +e on the committee9i. People will draft #ills in

a way to influence parliamentarians.4. Most +ills die in committee

a. Chair can o#struct#. Committee can recommend it to not

passc. 9naction

. @ouse can file a ischarge petition a. Forces a #ill out of committee to the

floor for considerationi. 9f over half of the @ouse

votes, it goes out of committee.

1. his ishow you can go over the Chair


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heyRA9&9=4.

hey pro#a#ly didnetermines how and

what procedures will #e used for de#ate 1. 2imits

on amendments$. Drder

of voting on amendments$. After #eing scheduled, #ill goes to floor de#ate

a. Can #e de#ated in Committee of the

Bhole#. o proceed, a voice, standing division,

or recorded vote is heldi. Foice Fote

1. +veryo

ne yells out “yea" or “nay" and presiding officer decides.

,::ICI,7

nd usually rigged7ii. Standing ivision

Fote1. +veryo

ne stands for yes or no and they are counted.iii. Recorded Fote

1. @ouse

has electronic version$. &enate

(ust does roll call vote.c. >e#ate must #e #rief and germaned. Any speeches, fili#usters will go in the

record.i. Can also insert things

into the record.1. ,ven

speeches you never gave9ii. Collouy

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1. Drchest

rated conversation #twn two people

“meticulously orchestrated dance" intended to create a

shared meaning.'. :irst the ;ouse

a. egin #y deciding the Rules 'F,7A

G37,)

i. +ssentially a law forhow to pass a law.

1. e.g.

2imits on amendments.ii. Bhat !inds of things are

going to happen.#. Committee of the Bhole will decidec. Also could ma!e it in #y unanimous

consent F,7A G37, 0 Anly need one9#i. DR a motion to suspend

the rules ';G, F,7A G37, 0 need H to pass)1. >e#ate

limited to 8K minutes, no amendments and need a % ma(ority(. 7hen the Senatea. otion to proceed

i. ut can fili#uster 'F,7A

G37,)71. =eed %

to get cloture.$. Can

fili#uster #ills, #ut =D appointments.

f you could fili#uster appointments, spots in government

would (ust stay unfilled7

nd the cost of allowing an appointment 'worst-

case scenario) is much less than #ills.. Can

fili#uster at different points in the process

hy would youE

o eat up time9

8. “al!ingfili#uster" - Actually tal!ing

6. “Regula

r fili#uster" - 0ust threatening to do it.". Pros

rotects the minority. Cons

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ust a waste of resources.

ums up the whole process.J. Bouldn

t reuiring a talking 2ili+uster 'may#e even pu#lic) solve the

pro#lemE

ay#e, #ut +oth parties like the 2ili+uster

t protects whoever is in the minority at the time.iv. 9f #ill passes through +oth houses, we must resolve differences #etween

@ouse and &enate1. Conference3 reconciliation

a. Accept only one versioni. ust eventually agree

on an identical #ill.1. Agree

on amendments

et finally approved #y #oth#. +ventually we get a con2erence report

F,7A G37, J ?;#i. ut houses don


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c. 6hy are people putting out all these +ills including ones that pro+a+ly *on


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$. @elps courts interpret statutes. 9ssue of legitimacy #ecause it is not voted on

g. Speci2icity and elegation i. Reasons why Congress would delegate power to executive agencies

1. Congress is laylimited time$. =ot experts. Passing the #lame8. o avoid political #ias 'rationality)6. &peed H efficiency to meet needs 'agency is faster):. Continuity of an agencysta#ility in the policy

a. Agency really cares so this creates

sta#ility.;. Congress gridloc!s unli!e agency

ii. Conte-tual reason for delegation1. Article 1 allows all laws that are “necessary and proper

for carrying into +xecution the foregoing powers/"iii. Political Structure may affect delegation

1. Bill see more delegation to independent agencies

when preCongress are different parties '3 FIC, F,RS3)iv. ondelegation doctrine - Congress cannot grant its legislative power to

any other #ranch of government 'Dnly enforced twice and #oth times against =9RA)v. Slippery Slope concern

1. >on+2+4A9D=1. Epstein & O’Halloran L Practical reasons rather

normativea. Cg delegates #ecause of lac! of time,

energy, and expertise#. ore complicated the regulation, more

li!ely to regulatec. Can avoid #lame and receive credit

$. Schoenbrod – =ormative reasoninga. Cg should not delegate as fre?uently as

it does#. lame-shifting L delegation promotes

#ad legis #ehavior 'Cg can claim credit and avoid #lame for difficult choicesmade #y agencies)

. Mashaw L failure to reach consensus should not stop Cg

from creating legisa. etter to set in motion lawma!ing than

to #e paralyed #y specificity#. =o effect on pu#lic choice since pu#lic

does not read #ill8. Rubin L delegating is not Cg losing power, #ut Cg

exercising power a. Accounta#ility not lost through

delegation to agency #c agency held accounta#le through exec office and Pres

6. Bressman L focus on how or how well law is #eingmade, rather than who ought to ma!e law

vii. 6hitman v. 3merican 7rucking '1555) “intelligi#le principle" M>C

C9RC9M1. Bhether the re?uirement that =AAN


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viii. 6hitman v. 3merican 7rucking '$KK1) M&PR++ CDRM1. Bhether 1K5'#)'1) is an unconstitutional delegation of

legislative power a. Congress cannot delegate its legislative

power according to the Constitution, so it must lay down an intelligi#le principle

when it gives decision ma!ing authority to an agency$. 9ntelligi#le principles

a. Scalia - comes from Congress

'exclusively)

#. 6illiams - Can come from Agencies. =ondelegation

a. Scalia J Sil+erman - +nsures that

Congress ma!es the important policy choices that are carried into law.#. 6illiams - prevents ar#itrariness,

meaningful (udicial review, Congress ma!es policy decisions.c. Stevens - =ature of power, rather than

the character of person exercising it .i. +PA wielding legislative

power Ofactual argumentii. &imilar to yers -

executive #c it relates to power of pre71. Possi#l

y contra urphy H @umphreys8. &tevens - #oth these provisions allow delegations

a. Art. 99 G 7he executive power can #e

delegated#. Art. 9 G 3ll legislative power c. +asier to admit agencies have #een

granted legislative power to enact regulations6. 9ntelligi#le principle in CAA is satisfactory in light of the

other intelligi#le principles held constitutional. eg. “regulation in the pu#lic interest"a. Cost enefit analysis3

i. Scalia3 Costs aren


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legislation 6hole 3ct#ii. Context following

enactmentiii. 3+surd results will

follow from such a #road meaning otherwise.$. Bhen text and legislative history conflict, which controlsE

a. 3rguments 2or te-ti. ext was passedii. 2eg. history may not #e

accurate anymore+. 3rguments 2or leg. hist

i. ay #e mista!es in the

text that were overloo!ed. &ometimes Congress *ants deli#erate am#iguity.

a. &o the court incentiviing Congress to

write clearer statutes may not wor!.i. A=> it may go directly

against chec!s and #alances.#. 7e-t0Based 7ools

i. Ardinary v. 7echnical Meaning1. i- v. ;edden '1J5) p. $J “omatoes"

a. Bhether tomatoes are a vegeta#le or a

fruit win the context of the 1JJ tariff act.#. After consulting favora#le dictionaries,

court relies on ordinary linguistic and culinary usage over technical definition

#ecause law was aimed at merchants not #otanistsi. omato Q vegeta#leii. Assume industry-

specific #c it is a tari22 statute and doesnealer wgun in loc!ed glove

compartment, $ dealers wa #ag of guns in the trun!d. a(ority3 Fall win statute #c

i. >ictionaries 'other than

lac!


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reports '#ut what a#out other %)iv. =ot sufficiently

am#iguous for rule of lenity.e. >issent3 falls outside the statute

i. Rule o2 lenity

'am#iguity in statute resolved for defendant)1. reyer

re?uires a “grievous am#iguity"ii. ost o#vious plain

meaningiii. % newspaper reportiv. se in other f irearms

statues 'H .&.C.)iii. 7e-tual Canons o2 Construction0?inguistic 6hole 3ct and 6hole

Code Canon p. $:61. Avervie* o2 7e-tual Canons

a. Ba++itt v. S*eet ;ome '1556) p. $61i. Bhether the &ecretary


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egalies such acts incidental to a lawful activity.

o Congress foresaw indirect #eing illegal.iii. Amendments are made

to have real J su+stantial effect C3A A: I7,RPR,737IA#.iv. a(ority '&tevens) uses

congressional definition of “ta!e" in I '15)

v. >issent '&calia)31. a(ority

H the li!e)ii. 2oo! at shared

attri#utes of the itemsiii. 9f a series of specific

items ends with a general term, the term is limited to su#(ects

compara#le to the preceding specificsd. Expressio unius est exclusio alterius

i. +xpression of one is the

exclusion of another

1. &ee@oly rinity

idn


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language inside of a parenthetical is entitled to less *eight than lang

outside a parentheticaliii. &ee the case of &ir

Roger Casement1. &ee &

v. S-Citement *ideo

ot extending “!nowingly" to the age of the person in the

video would result in ridiculous ype 9 errors.

ed+x examplef. Conunctive v. isunctive L erms

connected #y a dis(unctive “or" should #e given separate meanings, unless

context dictates otherwisei. &ometimes “or" and

“and" used carelessly/context mattersii. Presumes that purpose

of statute is relevantg. ?ast 3ntecedent Rule L limiting clause

or phrase should #e ordinarily read as modifying only the noun or phrase that itimmediately follows.

i. &ee arnhart v.

homas, “+xisting in the national economy" only applied to other gainful

wor!, not the plaintiff


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interpretation of the statute$. Provis

os

lauses that state exceptions or limitations to the

application of a statute. A common issue is whether a

proviso only applies to the rest of its specific provision or

the entire statute

8. 6hole Code Canona. he Bhole Code Rule directs courts to

construe language in one statute #y loo!ing to language in other statutes.

uscarello across gun laws#. In pari materia

i. &tatutes addressing the

same su#(ect should generally #e read as if they were one law1. A later

act can #e regarded as a legislative interpretation of an

earlier act in the sense that it aids in ascertaining the meaning

of words used in their contemporary settingc. In2erences across statutes

i. Bhen Congress usesthe same language in two statutes having similar purposes it is

appropriate to presume that Congress intended the text to have the

same meaning in +oth statutes 'temporal relation is important)d. Repeals +y implication

i. Courts do not favor

repeals #y implication and will not presume them unless the intention of

the legislature to repeal is clear 1. sually

occurs when the later statute expressly contradicts the previous

acte. All of these canons can #e set aside

when there is clear congressional intent which is more validiv. Su+stantive Canons - Rules a#out how the law should loo!1. hese canons can #e overcome #ased on clear

language or other strong evidence that Congress intended otherwise4. Rule o2 ?enity

a. Functions as tie +reaker it is a ?3S7

R,SAR7# in the event a word or provision has more than one interpretation#. Provides reason to pic! the

interpretation that is more favora#le toward criminal defendantsc. S v. Santos '$KKJ) p. $5 “Proceeds

of illegal lottery"i. &antos operated illegal

lottery for $8 years. ets were collected through a networ! of runners.

onies were used to pay runners and lottery winners.ii. Bhether I 156: 'a)'1)


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oth definitions accepta#le. Crimina

l code 'Bhole Code)

efined #oth ways8. Federal

money laundering statute 'Bhole Act)

m#iguity persists6. Apply

the Rule of lenity in the face of am#iguityiv. a(ority3 '&calia) term

wholly am#iguous from statute1. Plaintiff

s attempts to clarify using later statutes is dum#$. Rule of

lenity re?uires court to use “profits"

urpose of rule of lenity

otice

usticeli#ertyv. >issent3 'Alito)

!nowledge of profita#ility1. &hould

have loo!ed at how “proceeds" was normally defined in thecontext 'customary meaning)

$. =either

purpose is aided #y this ruling.

eterrence #y not allowing criminals to fund “luxurious

lifestyles"

nhi#it growth #y not allowing dirty money to fund growth

of criminal empire.

riminals that are not profita#le would get off '. 7;, R?, A: :IF,

a. ost important rule in constitutional law.i. Uou need five votes to

win.1. Dnly

need four agreements.8. Canon o2 constitutional avoidance

a. Re?uires a court to avoid interpretations

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of statutes which render them unconstitutional when other interpretations are

valid+. :actors

i. Am#iguity V grave

constitutional ?uestionc. Bhy have thisE

i. Assume Congress

intends to draft a constitutional lawii. &aves law while

retaining constitutionality1. 9f you

overrule a statute, you stri!e it down.iii. 0udicial restraintiv. Prevents legislative

#ac!logd. ut to get to this point the court must

first determine whether choosing a particular interpretation would li!ely render

the statute unconstitutionale. Kadvydas v. avis '$KK1) p. K6

“9ndefinite >etention"i. Bhether &C I 1$1

'a)':) authories indefinite detention of aliens admitted to the & #utsu#se?uently removed, or does the statute have an implicit reasona#ly

necessary re?uirement in order to comport with due process under the

constitutional avoidance doctrineEii. a(ority3 “9ndefinite

detention" raises a series of Constitutional pro#lems," therefore the court

has read a reasona#leness re?uirement1. Creates

a month detention periodiii. >issent 'Wennedy)3 the

rule of constitutional avoidance allows the court to choose #etween “fairly

possi#le" constructions, not to rewrite a piece of legislation, especially

where it is contrary to legislative intent, as here.iv. Rule3 issue must +e

unclear in order to apply constitutional avoidance1. “ay"

contains some limits to discretion$. Wenned

y3 >on


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convictions are a su#stantive element at common law H in many

states$. 0udicial

determination is li!ely a violation of due process6. :ederalism clear statement rule - Congress must use

express language when affecting the su#stantive rights of statesa. Prohi#its a court from construing a

statute to interfere with state sovereignty a#sent express language indication that

Congress intended that result

#. 9t is not am#iguity per se, #ut thea#sence of express language that opens up the possi#ility for its application

c. +sta#lishes a principle of legislative

drafting3 whenever Congress intends to alter the federal-state #alance, it must do

so expressly in the statutei. his forces Congress to

ma!e the hard policy choices in the statuted. Gregory v. 3shcro2t 1!!1# p. '1

%Mandatory retirement at )&i. Bhether the provision

of D constitution re?uiring all non-municipal (udges to retire at ;K

violates the A>+A or included in the exclusions of “appointees on a

policyma!ing level"ii. Federalism clear

statement rule assisted the Court in avoiding the constitutional ?uestion

of whether Congress has the constitutional authority to apply the A>+A

to state (udges1. Avoided

constitutional avoidance canon #ecause they don


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1. oscitu

r - close wor!ing relationship$. 0udges

decide law, not policy. =o

oxford comma after “policyma!ing level" so we should read the

two parts together.v. >issent3

1. a(ority

ual

sovereignty led to civil war 8. 0ust

read the text and interpret this statute6. Federal

rules promote uni2ormity 'states history of discrimination)". Presumption against preemption

a. Nuestions of whether a federal statute

preempts other state lawsi. Courts can apply the

preemption narrowly1. Dnly

when necessary

#. Rests on the notion that the historicpolice powers of the &tates are not to #e superseded unless that was the clear

and manifest purpose of Congressi. Federal state #alance

should not #e distur#ed unintentionally #y Congress or unnecessarily #y

the courtsc. his canon functions in a *eaker

2ashion than federalism clear statement ruled. 7*o 7ypes o2 Preemption

i. Con2lict preemption1. Bhen a

$$


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specific clause in a statute conflicts with federal lawii. :ield preemption

1. Bhen

federal gov


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c. 6hy3d. Purposes 2or *hich history *as

createdi. Committee reports

'Audience is mainly court)ii. Floor de#ate 'iddle

ground)iii. Press release 'ost

pu#lic audience)

e. 6hat3 &pecificity of provision X issuef. Contra3 2egislative history

i. =ot the law71. &imply

illuminates intent of the law, helpful clarification. extualists criticie this approach #ecause it is very easy

to cherry pic! support and these sources often don


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organiations in I 6K1'c)')#. Analogous to ta!eharm in &weet @ome

i. Failure to define terms,

so the agencyissent '8)i. Repeal of fair trade laws

cuts against ma(ority.ii. =o evidence exists of

any change warranting a departure from per se.1. Court

#lows X rule of reason$. Change

should #e gradual .iii. Bisconsin Right to 2ife

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factors1. &tare

decisis more rigidly applied in statutory than constitutional cases$. ore

leeway in overruling recent cases deemed wrongly decided. Previou

s cases create “unwor!a#le legal regime"8. 9f a

decision “unsettles" the law it may #e overruled

6. 9f aprevious decision involves property or contract rights, where

reliance interests are involved, argues against overruling a case:. 9s the

rule “em#edded" in our “national cultureiv. All factors lean in favor

of retaining >r. ilesv. Common law rules

should #e changed gradually1. eg.

exceptions for new entry'. :actors to consider 2or changed circumstances

a. &hifts in ma(ority support#. Pu#lic opinionc. Pu#lic policyd. Dther laws passede. Cost #enefit analysisf. =ew facts

i. e.g. changes in

technologyg. Age of statuteh. >ynamic terms that incorporate context

#y referencei. pdating is #uilt into

them.

d. 7heories o2 Statutory Interpretation p. 8K1i. Intentionalism1. &pecific issue$. Goal3

a. Bhat meaning did Congress have in

mind when it wrote the statuteE. 3dvantages3

a. @elps with am#iguity, constitutional,

legislative supremacy, retains original intent, limits (udges placing their own

opinions into law and gives authority to Congress8. 7ools3

a. 2eg. @istory, committee reports, floor

speeches, etc.

6. Criticism3a. Cherry pic!ing leg. history,#. =o unified intent

i. ut there must have

#een some intent to pass #ills1. &ometh

ing did get passed7

nd we should really only care a#out who won.c. Constitution Art. 93 each house can set

$:


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its own rules H proceduresi. And we should follow

these7d. oo many peoplee. >isagreement #t voting parties G loo!

at passing ma(orityii. Purposivism

1. Bhat did they thin! thenE$. 4eneral ?uestionpurpose of law

. Goal3 a. +xamine what pro#lem Congress

sought to address and cure8. 3dvantages3

a. Remains loyal to the outcome Congress

sought to achieve#. &imilar to intentionalism, #ut more

general#road6. 7ools3

a. ext H legislative history:. Criticism3

a. Purposes are often hard to determine

and there are usually several purposes for a piece of legislation

#. Restrained #y text if it mentionspurpose.

. i22erence 2rom ?egal Process Purposivisma. 2PP is what a “Reasona#le Congress"

'made up of reasona#le people Ylol) would have pursued.+. ?PP is a response to the purposivism

pro+lem o2 no unified purposei. Provides a unified

purpose of reasona#le people.iii. ?egal Process Purposivism '@art H &ac!s)

1. “Reasona#le people pursuing reasona#le purposes

reasona#ly"a. ied to a non-specific reasona#le

Congress4. 3dvantages

a. Reasona#leness imputes a reasona#le

purpose to the legislaturei. &olves coherence

pro#lemii. Creates an o#(ective

standard. Criticism3

a. 0udges have a lot of discretion to

determine what is “reasona#le"i. Response - 9n e!ery

type of interpretation the (udge will (ust pic! the evidence that suits hisargument anyway.

8. Be would hope Congress is filled w reasona#le people.a. &o can


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a. Put yourself in their shoes.i. road interpretation

allows statues to survive in spirit, while narrow interpretation can lead to

a#surd results$. Applies to situations congress could have addressed #ut

didn


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#. Courts still have discretion over

dictionaries7c. Congress ma!es mista!es.

i. Briting issues,

scriveneroes not follow original intent of

legislature#. “0udicial Activists"

i. Counter 3 &ometimes

legislature enacts common law concepts into statutes so courts have the

freedom7 'Posner )=. Regulation0Statutory Implementation +y 3genciesa. 7he 3dministrative Procedures 3ct

i. ==' 0 otice J Comment Rulemaking In2ormal Rulemaking#1. Rule - a general or particularly applica#le statement

made #y an agency.a. “rulemaking" includes amending and

repealing rules.#. Rule vs. Drder

i. An order is a final

disposition that is not a rule.

$5


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1. 9ncludin

g licensing

license is an agency form of permission.

icense is a subset of orders.$. Drders

are made through adudication

ules made through rulema!ing.$. Applies any*here B,SI,S5

a. “agic words"i. on the record after

opportunity for agency hearing 'formal rulema!ing)ii. =="0==

#. I66 'a)'1)-'$) exceptionsi. ilitary or foreign affairsii. Agency management or

personnel or pu#lic property, loans, grants, #enefits or contracts.. Prompted from3a. Petition #y private citiens#. Prompting from gov


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66 G didn


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v. Cases in which the

agency is acting as an agent 2or a courtvi. Certi2ication o2 *orker

representatives.'. otice is generally the same as I66

a. Facts H law vs. 4eneral infoi. >ifferent #c it


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re?uests for other info 'a)')4. ,-ceptions +# get used all the time.

iv. =="0==v. @udicial Revie*

1. rial li!e process rules$. Applies to everything e-cept 'I;K1)

a. Precluded #y statute#. Agency action is committed to agency

discretion #y law.. I;K: Can review all relevant

a. Can '1) force agencies to act, or #. '$) hold unlawful or set aside past

agency action.i. Ar#itrary H capricious or

otherwise a#use of discretion or unlawful 'A)ii. nconstitutional ')iii. 9n excess of statutory

(x., authority or limitations or short o2 statutory right. 'C)1. Agency

acting outside its o*n authorityiv. nlawful procedure '>)v. nsupported #y

su#stantial evidence '+)vi. nwarranted #y the

facts to the extent that the facts are su#(ect to trial de novo #y the

reviewing court 'F)+. 3gency ocuments I5 Crash Protection

i. PR1. Changes Proposed3

a. Reversing rollout order #. nifying the datec. Rescinding the order

$. Changes in situationa. Costs higher than expected#. 2arge cars getting phased out

c. Reagand. Pu#lic #ac!lash was unexpected.

ii. :inal Rule1. he actual rule is always very short and at the end.

a. he rest is (ust “helpful #ac!ground"$. &tatute reuired these !inds of restraints

a. &o it had to +e amended.. 9n 15;; they made predictions H assumptions

a. Preventing 5! deaths and :6! in(uriesi. ut many of the

assumptions never came to fruition1. Air#ags

weren


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small percentage.ii. Small cars so un2air

to e-pand these num+ers1. ut

agency itsel2 said more people will #e driving small cars7iii. Sel20selection o2

Ra++it/Chevette study1. +ven

now, people have found a way around these seat#elts.

f they don


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1. People

are willing to pay a lot more to go from 1 #ullet to K than they are

to go from #ullets to $

RR37IA3?

t


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ii. +conomic Analysis and Cost-#enefits1. CA on CA

Pros Cons

ight help identify goal #ased standards

which in turn can spur innovation

any varia#les difficultimpossi#le to ?uantify

Full accounting of everything relating to a certain topic'9dentifies positive investment)

Complex H indirect costs

Promotes democratic accounta#ility >istri#utional fairness

iii. Scienti2ic 3nalysis1. &cientific studies can #e plagued #y intentional or

unintentional #ias, premeditation, and experiment design pro#lems$. Agencies are expected to gather information a#out ris!

“risk assessment" and then determine how to respond to such ris!, “risk management". oxicology, epidemiology, and statistical analysis all have

inherent pro+lems which can #e difficult to account for a. &election #iases and other statistical

errors.

8. &cience is hard. &o are experiments.6. Agencies are often re?uired to use certain scientific

authorities as #aselines or approval for their regulationsiv. Political 3nalysis

1. Agencies often consider ho* the pu+lic is likely to

react to a regulation and *hom a regulation is likely to a22ect$. Agencies also consider the preferences of the President

and mem#ers of Congress when designing regulations. he team design of an agency can also have a

significant impact on the shape of legislation and the level of political controle. 0udicial Review 9*3 Chevron

i. Chevron v. RC '15J8) p. 61 “ost important case in Admin. law"1. Bhether, in the a#sence of legislative directive or history

the +PA administrator


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gency exists to figure out am#iguities

hy impute delegation from an am#iguous termE

elegation isn


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expertise is still useful if no clear Congressional intent6. Court may =D su#stitute its own construction of a

statutory provision for reasona#le agency interpretation

:. reats am#iguities in statutes as implicit delegations of

interpretive authority to agencies 'R,FA?7IA3RE);. &hifts #ac!ground assumption a#out interpretive

authority from courts to agencies 'R,FA?7IA3RE)J. Court defers #oth to policy (udgments and legal

interpretationsa. Agency has primary interpretive

authority5. 9ncentives created #y ChevronE

a. 3gencies kno*3i. Court will review

challenges, and the review will #e governed #y Chevron.1. 3ny

reasona+le arguments *ill stand so long as statute is

am#iguous

ery deferential to agency.4. Ganes

h 0 %i2 it is am+iguous you *ill P7 and say it is

reasona+le&#. 3s an agency la*yer on *hat are you

going to +ase your interpretation Step 1#D3i. &tatuteii. >ictionaryiii. 2eg. history '#ut not for

&calia)1. &tep 1

reviewed de novo, so (udges may not #e persuaded at all.

o may not use this7iv. Step 4

1. ac! to

same textual sources

an use to show am#iguity$. @ere

you may want to use legislative history

an #e used as evidence of reasona#leness

ven i2 it gives you the *orst choice it is still

a reasona+le choice9c. 2ame duc! executives can use

am#iguity H agencies to accomplish domestic policy goalsi. Agencies *ant to find

clarity, as it ma!es everything easier.1. Am#igu

J


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ity is a clear second choiced. As an agency, which do you loo! to first,

statute or policyDi. Argument for statute

1. Avoids

possi#ly going against Congress$. +asiest

least costly route. ay #e

clearer 8. 9t


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H do not receive classroom instruction should #e considered employee under I $'6) of

the act$. Cedars-&inai held they were not employees

a. But Court overrules this and 2inds

that they should get employee status. ,mployees #ecause3

a. Compensated 'stipend)#. JK[ time wpatientsc. =on listed under exceptions 'expressio

unius) d. =2R is only entity treating them as

studentse. =o gradesexamsf. enefits

8. Students #ecause3a. &till learning#. Corrupt academiac. *ery low pay 'stipend)d. 2eg. history

i. 15;5 #ill failed to pass6. >issent3 Change in rules only #ecause of change in

#oard mem#ership.

iv. Guidance ocs1. I 66'd) 4uidance

a. 9nterpretive rules#. &tatements of policyc. +nforcement manualsd. +xcluded from notice H comment

4. 6hy do agencies like guidance documentsDa. >one facto enforcea#le

c. =o need to consult outside partiesi. 2ess opportunity for

pu#lic input1. &o

agency can go a#out own agendyd. 4reater flexi#ility in amending

i. A rule needs another

rule to change it1. 4uidan

ce documents may re?uire much less.e. 2ittle executive oversightreview

'. 3rguments 3gainsta. oo easy to change

i. contraT “one #ite"doctrine

1. @as to

#e oversight once they create reliance.

Agency gets one #ite of the apple" without oversight.#. Remove incentives for developing clear

H explicit rulesc. =ot entitled to Chevron deference

(. on0+inding

8K


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". Control o2 3gency 3ctionsa. Presidential Control

i. 4enerally1. 7ools

a. Appointments#. Removalsc. Agenda setting 'eg. Reagan and

>eregulation)d. udgets H appropriationse. Review OD

i. D9RA-forces CA on

agencies4. Control Independent 3gencies through

a. Appointment removal of officersi. 4ood cause removal

power #. Can set a policy agenda

i. e.g. Reagan


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:. a(ority 'Ro#erts) - Contrary to 34 and Festing Clausea. nduly limits executive oversight

i. =othing preventing

infinite levels of tenure protections+. :ormalismD

i. lac! H white, clear cut

rules1. *ery

little grey area in formalism

ii. $ layers createsinsulating power

c. 9gnores 2unctionalist argument to !eep

pandoraifferent structures canaddress the various pro#lems in the admin state

ii. +xpertise arguments1. Precom

mitment theory 'lysses H the sirens)

owever, constitutional precommitment

J. >+F9=99D= DF DFF9C+R& - PCAD mem#er is

8$


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considered an executive officer iii. Regulatory Planning and Revie* 0 ,A 14$""

1. 7*o Big ,lementsa. Planning Process

i. Create regulatory plan

of all significant regulatory actions1. Forwar

d that plan to D9RA, reviewed #y *P H agency heads.

K day comment process

hen D9RA circulates it further +. Revie* Process eadlines

i. PR+-=PR - 1K daysii. Dthers - 5K daysiii. &een it #efore H no

change - 86 daysiv. +xtension 'only once) -

K daysv. p. :; '$)'A)-'C)

$. +sta#lished the Bhite @ouse


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rea22irming 14$"")a. 9ncludes scientific integrity#. Regulations as a means of innovation H

integrationi. Bant to incentivie

moving forwardc. &cience

i. &cience is getting more

sophisticated.

d. 9nternet pu#lic participatione. Agency flexi#ilityf. >ifferent view of CA

i. ust #e very clear that

#enefits outweigh costs.g. Retrospective Analyses of +xisting

Rulesiv. AIR3

1. Reagan did the first D9RA resolution$. 1$,J:: illy Clinton

a. CAi. 9nclude ?ualitative

values

ii. =et #enefits. Planning process

a. eeting '*P H advisers)#. Agenda setting 'executive H

independent agencies)i. D9RA effects

1. &econd

chec! on agencies$. Reputat

ion effects

ep. diminished #y lots of reviewsre(ections. D9RA

can really slow things down.ii. Sunstien emo '@ighly

cited legal scholar)1. Clarifyi

ngguidance docs

orces individuals in agencies to read &unstienata

orcing #usinesses to respond

ata may #e s!ewed

usiness gaming the data

88


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owever,

ay deter #adpseudo sciencev. AIR3 Return and Prompt ?etters

1. D9RA can write two !inds of letters to agenciesa. Return ?etters

i. Remit regulation to anagency for more consideration

1. 9n letter

form so interest groups !now they are wor!ing on #ehalf of their

interests+. Prompt ?etters

i. Address an agencyeadline recently

passed8. >efi#rillators

a. PuntG study coming down the pi!e

'official story) 6. ire pressurea. D9RA-reevaluate indirect tire pressure

i. not most cost efficient

rule#. D9RA study

i. 8-5[ --\ not statistically

significant 'no evidence of #enefit)ii. =@&A re(ectsG your

statistics are gar#age". Sunstien

a. D9RA writes very few return lettersi. sually agencies

withdraw regulations they thin! will #e returned#. Agencies 'not D9RA) conduct the CAc. 9ndefinite delay

i. D9RA can continually

hold upsend #ac! regulationsd. Coordinating role among agenciese. Pu#lic participation

i. Appeases constituents,

no new informationf. D9RA doesn


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political1. %3ggre

gator o2 in2ormation&;. Done ruling '1J6J handout)

a. D9RA slow wal!ing +PA oone rule#. =ovel issues G prevents agencies from

setting precedents H putting forward legal theories willy nillyc. Dpen-door policyd. CA of utmost importance

e. Revie* o2 guidance docsi. Bhite house is a “they,"

not an “it"2. Some decisions kicked all the *ay to

pre8J. 9mproved disclosure is #ecoming a #igger concern for

agencies attempting to meet government transparency standardsa. Full disclosure ma!es it possi#le for

more govt data to #e peer reviewed!. AIR3 revie* supported +/c

a. 9ncreases agency accounta#ility to the

political offices#. Avoids agencies losing sight of their role

in the #igger picture of govt1). Critics say AIR3 process imposes a cost0+ased veto

that merely inhi+its or delays necessary and +ene2icial agency regulationsvi. Real challenges for agencies

1. 4etting rest of executive #ranch to “#uy in"$. 9ntentional slow wal!ing process. =itpic!ing H fact chec!ing from D9RA

vii. Presidential directives1. Can assert control of agency action #y issuing pre-

regulatory directives in the form of official memos to executive heads$. end to promote rapid agency response

a. 4arner more pu#lic attention than letters

promulgated #y D9RA+. @udicial Control

i. 9n general1. Courts can only review agency action ex post #y

examining challenges to agency decisionsa. ost significant agency action is su#(ect

to (udicial review$. APA specifies the scope of (udicial review in I;K$

a. Ar#itrary and capricious standardii. F7 Eankee uclear v. RC '15;J) p. J86 “no onday morning

?uarter#ac!ing"1. =R>C challenged a license granted to the power plant

#c the agency used informal rather than formal rulema!ing

$. 2icensing process re?uired two permitsa. Construction permit H#. Dperating permit

i. =R>C opposed to * U

getting this one.. ;y+rid rulemaking3 informal rulema!ing V formal

ad(udicationa. Arose from court imposed additional

re?uirements on otherwise informal rulema!ings#. Practice ended as a result of *

Uan!ee.

8:


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8. Bhether the Atomic +nergy Commission]s proceeding

could #e overturned #y the court when the commission met the minimum re?uirements of

APA I 66a. o ( o2 the statute sets out a

ceiling on udicial control not a 2loor.i. Canominant carrier 'ie AH) must file tariffs, FCC exempts

non-dominant carriers$. Bhether the congressionally delegated authority in I

$K allowing the FCC to “modify" any re?uirement for common carriers includes the

authority to ma!e tariffs permissive when I $K states “every common carrier/

8;


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shall...file" tariffs.'. Scalia Maority#5 A

a. =ot supported #y the meaning of

“modify"i. “odify" only refers to

minor changes#. 1$K days exception

i. ariff must exist for 1$K

days to matter

1. 9fCongress !ept the extension exception, why would they freely

allow you to remove the restrictionsE

ould #e hiding elephants in mouseholesc. Fundamentally changes regulatory

regimed. Oignores I $K'c) entirelye. odify is clear, meant in narrow sensef. Policy argument

i. Congress should

address, court only interprets statutes8. &tevens >issent Otreats it as a step $ case

a. hemesi. Flexi#ility of regulatory

stateii. Changed circumstances

1. ar!et

has changed from monopoly to competitive+. Permissi+le

i. Purpose of the statute

'antitrust)ii. lac!


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$. =o

&calia responseii. :3 v. Bro*n J 6illiamson 7o+acco Corp. '$KKK) p. ;:5

1. Bhether the F>A has the authority to regulate to#acco

products as a “drug" or “device" under the F>CA as to#acco products are customarily

mar!eted$. DA would #e re?uired to #an them as mis#randed.1. >anger

ous to health H no directions for use

herefore, F>A must #an if under its purview

ut such action is #arred #y statutec. 6hole Code

i. &ix other to#accostatutes passed since F>CA1. his

implies that cigarettes will exist.$. =one

give F>A authority. F>A

claimed it did not have (x over to#acco repeatedly

ongress relied on what F>A was saying, so itissent '8)

a. a(ority focus on “intended"i. 9ntent does not have to

mean “claim"1. 9ntent

can #e inferred from circumstances#. Follows the purpose of the statute

'reducing deaths from to#acco)c. 9ndustry documents fitting the drug H

device definitionsi. Addictive and designed

to enhance addictiond. Re(ects whole code argument

i. =ot inconsistent withF>A (xG does not preclude F>A authority

e. >enial of (x G changed circumstancesi. Change of

Administration policy1. =ew

health studies, to#acco companies !new of danger and lied

a+out it.f. road delegation of power to F>Ag. a(ority opinion “counterintuitive"

iii. Similarities +/t MCI J Bro*n J 6illiamson 3lso po*er a*ay 2rom

85


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agencies#1. &tatutory scheme defeats agency interpretation$. +lephants in mouseholes

a. H B G to#acco regulation 'elephant)#. C9 G eliminating tariffs 'elephant)T

“modify" 'mousehole). Maor uestion doctrine - Courts will not infer that

agencies can determine ma(or policy a#sent clear legislative intent8. Chevron step 1 cases

a. =o clear congressional intent#. +xcluding things from definition rather

than defining authority altogether.6. >elegationT intelligi#ile principle 'Bhitman)

a. Can say anything as long as it isn


51/59

ere, 16! per year, so can


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. Similarities +et*een Mead and 6hitmana. Bhitman - oth loo! for outer limits on

agency action 'intelligi#le principle)i. B - Congress must

provide intelligi#le principleii. - Court will not

supply reasoned #asis for agency action#. B - Constitutional 2evel

i. Congress must providec. - &tatutory level

ii. Motor Fehicle M2r.s 3ssid agency considerE

i. Factors Congress said

not to consider ii. Factors that should

have #een consideredc. 9s explanation so implausi#leE

(. ;olding5 ecision *as 3JC.

6$


53/59

a. =o consideration of mandating air#ags#. oo ?uic! to discount safety #enefits of

automatic restraintsi. Failure to

provideanalye evidencec. &tudies offered insufficient evidenced. sed Ra##its H Chevettes study even

though agency itself said this study wasno more everything7 AW+ 2D=4+Ri. &tudiesii. Bor!iii. eetings

#. Consider #roader ranges of alternatives1). Comparisons o2 State :arm and Previous Cases

a. Chevron3 Power to agenciesi. &tep $ G Constraint on

Congressional delegation 'must #e reasona#le)ii. 9nterpretation of

am#iguous terms#. &tate Farm3 Power to courts

i. Constrains agency

discretion ii. Applies to any =HC,

informal rulema!ing, 'including guidance documents)1. >oes

not apply to formal ad(udications 'su#stantial evidence standard)

or formal rulema!ingc. &tate FarmT C9 H HB

i. All limit agency power

while increasing Court power 1. &tate

Farm G explanation insufficient

6


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$. C9 H

HB G unclear ii. All also address the

past actions of Congress H the agency.1. HB G

Dther statutes address issue$. &tate

Farm G @istory of regulation'. 7ensio

n +et*een e-pertise J changed circumstances.d. State :arm J Mead

i. “#uc!ets" in ead1. =HC -

I$. Ad(udic

ation - I. 4uidan

ce docs, etc. - A7 may+e#

morphous test for if Congress would have wanted these

in. ii. oth give us a #roader

“totality" to determine what we want.iii. oth loo! to Congress

diddid not want them to do.1. ead

G Force of 2aw$. &tate

Farm G Factors to considernot consider 11. Approaches to &tate Farm H Chevron

a. &tate Farm is the reasona#le element of

Chevron $ '>D=rawing on State :arm H other decisions, to survive (udicial review, at

minimum agency must 'p. 8K)31. ase decision on relevant factors H no irrelevant factors$. Consider all important aspects of the pro#lem. Consider alternatives within the am#it of existing

regulation8. a!e rational connection #etween the evidence H its

conclusion

68


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6. Dffer a plausi#le policy, even if not the one that a court

would adopt:. 0ustify changes in course from prior policy;. >isclose scientific or other data upon which it reliedJ. Consider comments su#mitted in response to the =PR

iv. CA - Can function as a #ac! door around * Uan!ee, can send agency

#ac! to do more proceduresv. Skidmore '1588) p. ;68

1. Bhether employee


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pproval mechanisms li!e passing new laws.#. Appropriations

i. Can withhold or restrict

money '=ot as hard as new legis., #ut still difficult)1. Approp

iations are yearly, so a continuous form of control$. >iscon

nect #t appropriations committee and su#stantive mandatecommittee

c. ?egislative Fetoi. &tatutory provisions that

ena#le Congress to reverse an agency decision without enacting a new

statuteii. IS v. Chadha '15J)

p. ;$:1. An

immigrant


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ii. 4orsuch+PA example1. Bhat led to her fall from officeE

a. A#olished enforcement office#. anned haardous waste re?uirement.c. Aloof manner

i. Wept office in rival >D9d. @it list 'allegedly)

i. orale !iller regardless

o2 i2 it *as truee. eetings with industry repsf. &taff with no environmental

e-perience.4. Moral o2 the story 0 Be nice to people9

a. 9f you try to win people over, you will

pro#a#ly encounter less hostility when you do stuff they don7g. 9nsider politics

i. For others1. +ndors

e their #ill so they will support you in futureii. For yourself

1. hin!

House o )ards.4. Policy

a. essage sendingi. +ffect on industry wide

practices1. a!ing

an example out of someone#. +ffect on regulators

i. Pressure for new

regulationsc. Change the narrative

i. 9n turn, change pu#lic

opinion

d. 9nformatione. 2egal conse?uences 'per(ury)f. Foundation-#uilding for the future

i. &etting up the scene for

future legislation, etc.g. ransparencyh. @arass 'prevent anything from getting

done)i. >eplete political capitalii. 2ost time

i. Raise the salience of an issue

6;


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'. Botha. &hift #lameaccounta#ility

i. *ertically or horiontally#. Pressure regulatorsc. 9ncrease salience of issued. uild narrative

8. Bhen will we see oversight hearingsEa. >ivided govivert attention #y press

i. Flood the media with

stories the day of the hearing.#. >istance yourself

i. hrow agency under the#us

c. 9ssue narrowingi. ut &enators do what

they want". ;o* e22ective are oversight hearings at controlling

agency actionDa. irect v. Indirect Control

i. Congress really only

has indirect control1. =ew

legislation or appropriations are the only direct control it hasii. Courts H +xecutive

have direct control.+. 3genda0Setting

i. Pre can #e

aggressiveproactive with his agendaii. Congress ta!es longer iii. 0udicial has to *ait 2or

a case.c. :orm v. Su+stance

i. Pre controls 2ormii. Congress controls

su+stanceiii. Courts control

su+stance d. ,-pertisei. Congress can ensure

agencies are using their expertise #y31. sing

statutes to force studies, etc.$. Confirm

ation hearingsii. Pre has

appointmentsremovalse. ,- 3nte v. ,- Post

6J


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i. Congress has mostly e*

anteii. Courts have only e*

post

Regulatory State Sitaraman 2014

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