Law School of Harvard University / 2012-2013 Legislation and Regulation 3 Fall, 2012 Prof.

David Barron Available for download: Friday, Dec. 21 at 8:30 a.m. must be electronically submitted by: Friday, Dec. 21 at 4:30 p.m. Instructions 1. This examination contains three questions of equal weight. The exam mode is TAKEHOME. 2. You may use any materials you wish in answering these questions. 3. Your answers should be your own work and in your own words. 4. Make sure to offer your evaluation of the relative merits of the competing arguments that can be made with respect to the issues you discuss. 5. Please use the Answer Separator when starting a new question. 6. Please make sure to allocate your time carefully. 7. Read and think about the questions carefully before beginning to write. 8. Be organized; be clear; be succinct. 9. There is NO page or word limit. Extraneous discussions are not encouraged. It is possible to write an excellent exam that has a total of 3000 words, however, exams of longer or shorter length may be excellent as well. 10. Exam4 will automatically put your Anonymous ID and word count on the exam copy. Good Luck! 2012-2013 by the President Page and 1 Fellows of Harvard College.

Law School of Harvard University / 2012-2013 Question One In the wake of Hurricane Sandy, the federal government wanted coastal cities in New York and New Jersey to adapt to the new risk of flooding that the rise in sea level poses. To that end, it enacted the Urban Adaptation to Sea Level Rise Act (UASLRA). The Act sets up a new agency: the Interim Sea Level Rise Adaptation Agency (ISLRAA). Section 101 of the new Act provides: The Secretary of Housing and Urban Development will appoint the Administrator of the Interim Sea Level Rise Adaptation Agency. The Administrator may be removed by the President upon receipt of a report from the Secretary of Housing and Urban Development to the Senate that sets forth the basis for the removal. Section 101 does not specify what would count as a permissible basis for removal. The Secretary of Housing and Urban Development is appointed by

the President with the advice and consent of the Senate and serves at the pleasure of the President. Section 102 provides: The Administrator may, on the basis of prudence, feasibility, and the best available scientific evidence, and after hearing, establish an independent commission. The commissioners shall be appointed by the Administrator and shall be removable for willful abuse. Such commission, if established, shall issue a report that revises existing rules promulgated under the Coastal Zone Management Act (CZMA) so as the ensure that urban centers in New York and New Jersey are well adapted to sea level rise. Once the report containing such revisions is issued, the revised rules shall govern unless and until they are revised or rescinded by the agency ordinarily responsible for issuing rules under the CZMA. Upon issuance of the report, the tenure of the Commission and the ISLRAA, as well as of the Administrator, terminates. The Secretary of the Interior is ordinarily charged with issuing rules under the CZMA. The Secretary of the Interior is appointed by the President with the advice and consent of the Senate and serves at the pleasure of the President. Section 103 provides: A report issued by the commission established pursuant to Section 102 need not be issued in compliance with the Administrative Procedure Act. Immediately upon enactment of the UASLRA, the Secretary of Housing and Urban Development appointed the Administrator of the ISLRAA. After consulting with experts on her staff, the Administrator of ISLRAA took the following action. She issued a document entitled Order, with Statement Explaining Reasons for Establishing a Commission. The order provided the following brief explanation: I have adjudged that there is potentially a need for revised rules under the CZMA and accordingly have exercised my authority consistent with section 102. The document then concluded as follows: After a 21-day period for the receipt of written comments, the commission referenced in Section 102 shall be established to issue a report in accord with that Section. The Administrator received numerous written comments during the 21-day period. At the end of that period, she reviewed the comments she had received (which included comments supporting the creation of the commission, opposing it, and offering names of potential appointees) and then appointed the commissioners. The Commission then studied the problem for a few months and issued its report. It revised certain rules that had been promulgated by the Secretary of Interior under the Coastal Zone Management Act (CZMA). Those rules had established the requirements that states and localities must meet in order to secure federal approval from the Secretary of the Interior for their coastal land use development plans. Under the CZMA, state and localities must submit land use plans in coastal zones to the Secretary of Interior. Those coastal land use development plans only have force and effect if the Secretary approves them, and, according to the CZMA, in the absence of such approval,

the Secretary must approve all individual private proposals for land use development in coastal zones. The Commission provided in its report that the coastal land use development plans that urban centers in New York and New Jersey must submit under the existing rules could secure the Secretary of Interiors approval only if those plans included assurances (1) that areas within Zone A of existing federal flood control maps would be barred from accepting any new development (other than the rebuilding of structures destroyed or damaged in Hurricane Sandy) for the next ten years and (2) that state and local land use development regulations would be implemented during that time to ensure that existing development within Zone A would be resilient to Category One strength hurricanes. Accordingly, the Commissions revisions to the rules that had governed the federal approval process are now in place and will remain so unless and until the Secretary of the Interior revises or rescinds them in the exercise of his ordinary rulemaking authority under the CZMA. A landowner with substantial property holdings located within Zone A of the federal flood control map for New York City has come to you for legal assistance. You should assume she would have standing to bring legal challenges in federal court in consequence of the adverse economic impacts she would suffer from the Commissions revisions to the CZMA rules. She has raised two distinct types of legal concerns that she would like you to address. First, she would like to know what constitutional separation of powers challenge or challenges she can make to the lawfulness of the revised rules set forth in the Commission report, how strong you think those challenge(s) would be, and why you evaluate their strength as you do. Second, she believes the Administrator established the Commission without providing the process that was required by the APA and/or by the UASLRA. Accordingly, she would like to know what legal arguments would support that procedural challenge, how strong you think those arguments would be, and why you evaluate their strength as you do. Please write a memorandum that complies with her request for your legal assistance. Question 2 Faced with the growing problem of childhood obesity, Congress passed (and the President signed) an amendment to the Food, Drug, and Cosmetics Act. The antichildhood obesity amendment provides: Sec. 101: The Secretary of Health and Human Services may establish regulations for the use of vending machines containing snack foods in the nations elementary schools in order to ensure that, on the basis of the best nutritional science,

dietary options for students are healthy and will not undermine efforts to reduce the problem of childhood obesity. In response to this legislation, the Secretary issued the following proposed regulation in a notice of proposed rulemaking: Regulation 201. No elementary school, public or private, may host a vending machine containing any snack foods (including beverages) unless said machine dispenses only water. The proposed Regulation 201 was the subject of voluminous comments during the comment period. Among the comments were those from the Association of Independent Schools (AIS), an association of private schools that operate throughout the country. The AIS comment stated: There is no precedent for federal regulation of food provision by independent schools. They receive no federal funding for the food options they provide, and many of them do not operate cafeterias. They instead require students to bring their lunches from home. Vending machines may be a vital supplement to the food choices made available to students, and there is no basis for concluding that the Congress intended, for the first time, to permit this degree of intrusive federal regulation of private schools. Furthermore, vending machines provide an important source of revenue for private independent schools, revenue that cannot be easily offset. The differential funding sources between private and public schools underscores the overreach inherent in extending the regulation to encompass private independent schools. The Beverage Trade Association (BTA) also submitted a comment objecting to the rule. It stated: 2012-2013 by the President Page and 4 Fellows of Harvard College.

Law School of Harvard University / 2012-2013 The inclusion of beverages in this regulation is clearly impermissible. There is no respect in which a beverage is a food. It is a drink. Nor is a beverage plausibly described as a snack. Accordingly, this regulation would impermissibly extend the agencys authority. After the comment period ended, the Secretary created a Working Group. It was comprised of scientists and policy analysts already employed by the Department. The Working Group provided the Secretary with a detailed analysis and assessment of the comments submitted during the comment period. The analysis and assessment concluded that private elementary schools often relied on vending machines because

they lacked cafeteria services. It therefore concluded that they were a potentially important contributor to childhood obesity nationwide. The Working Group further concluded in its analysis and assessment that juices and sodas were the most serious contributor to childhood obesity that could be attributed to the presence of vending machines in schools. In so concluding, the Working Group noted that students often filled up on such drinks, and that such drinks were routinely provided during schools snack time. The Working Group based its analysis and assessment on studies submitted by nutritionists and anti- childhood-obesity advocates during the comment period, as well as on comments from parents of school children that were submitted during the comment period. The Working Group subjected these studies and comments to its own independent analysis, as supplemented by the relevant literature in the leading nutrition journals and other publicly available sources. The final analysis and assessment by the Working Group was then sent to a special group of outside nutritionists chosen by the Secretary. These outside experts were asked to determine whether the Working Groups analysis and assessment reflected a sound scientific analysis. The special group of outside nutritionists wrote back to the Secretary a brief letter stating: On the basis of our expertise and experience, we believe the working groups analysis and assessment is sound. The Secretary then issued the proposed rule as a final rule, along with a detailed statement of basis and purpose for the final rule. Following negative public reaction to the rule, however, the Secretary decided a few months later to issue a new Notice of Proposed Rulemaking. It stated: The Secretary is considering supplementing the vending machine rule in light of concerns about its appropriateness. A new round of comments were received. The AIS and the BTA reiterated the comments they had submitted in response to the earlier notice of proposed rulemaking. Nutritionists and anti-child obesity groups reiterated their prior comments as well but added comments stating that any rule rolling back the existing rule would, by weakening the regulation of snack foods in vending machines, necessarily undermine efforts to reduce the problem of childhood 2012-2013 by the President Page and 5 Fellows of Harvard College.

Law School of Harvard University / 2012-2013 obesity. Parents and teachers also commented, making similar comments to those they had previously submitted.

After the comment period ended, the Secretary reconvened the Working Group. She asked the Working Group whether a rule that applied only to public elementary schools, that did not regulate beverages in any way, and that barred vending machines from dispensing snacks that included candy of any type as well as all high-sugarcontent food products and any food products containing transfats would contribute to efforts to reduce childhood obesity. The Working Group, on the basis of a review of the comments submitted in both rulemakings and its own independent scientific analysis set forth in a document entitled, Special Scientific Evaluation, concluded in a letter to the Secretary: While the existing rule would result in a greater reduction in childhood obesity, the Secretarys recent proposal for revising the rule would not undermine efforts to reduce childhood obesity because this rule also would limit food options that contribute to childhood obesity. In our judgment, and on the basis of our own extensive scientific study, attached hereto, there is a difference between diet sodas and other types of sodas, just as there is a difference between high sugar content beverages and low sugar content beverages other than water, in terms of their likely contribution to childhood obesity. The Secretary then issued the following final rule: Regulation 202. This rule rescinds the prior vending machine rule and supplements it with the following requirement. No public elementary school may host a vending machine containing the following snack foods: candy of any type, any other high-sugar content products, or any products concerning transfats. Beverages are no longer subject to regulation. The Secretary accompanied the final rule with the following statement of basis and purpose: In light of resistance to the previous vending machine rule, I have decided to pursue a more incremental regulatory approach in this novel regulatory field. There is a significant chance that a rule that applied to private schools, like a rule that applied to beverages, would meet with substantial legal challenges and would be invalidated by some courts for being outside the scope of the Secretarys authority. It is also not clear that a rule that covers beverages should permit only the dispensing of water in order for it to meaningfully address childhood obesity. For example, certain sodas and high sugar content beverages may be distinguished from diet sodas or low sugar content juices and flavored waters on the ground that the former contribute far more to childhood obesity than do the latter. I have determined that the new rule would contribute to, rather than undermine, efforts to reduce childhood obesity because the new vending machine rule regulates the dispensing of a variety of snack food products that, based on the best scientific evidence, would otherwise contribute to an increase in childhood obesity. 2012-2013 by the President Page and 6 Fellows of Harvard College.

Law School of Harvard University / 2012-2013 You have been asked by the Secretary to prepare a legal memorandum that addresses whether the new rule was lawfully issued. She would like your memo to identify all substantial procedural and substantive statutory challenges that might be brought (whether under the APA or the authorizing statute) to the new rule, to evaluate the strength of those challenges, and to explain how you think they will be resolved and why you reach that conclusion. Question 3 A commentator has written the following: "The desire to overcome the dead hand of the past was a major impetus for the modern administrative process that James Landis championed." At least since the enactment of the Administrative Procedure Act, questions about whether the purpose of administrative law should be to preserve the federal administrative state as it is or to ensure that it may evolve to meet contemporary challenges have consistently arisen in connection with particular doctrinal controversies. Please discuss whether you think administrative law has been forward looking or backward looking since the passage of the Administrative Procedure Act and whether you think it should be one or the other and why. Be sure to discuss a mix of constitutional and non-constitutional doctrines. Your essay should not read like a laundry list of doctrines. It should read like an essay that makes an argument in which the doctrines you discuss support the overall point you are making. END OF EXAM 2012-2013 by the President Page and 7 Fellows of Harvard College.