Académique Documents
Professionnel Documents
Culture Documents
Why delegate?
(1)
Expertise and Experience Congress doesnt have the technical
and specialized knowledge to make decisions about everything.
(2)
Time Congress is busy and doesnt have the time to come up
with all the regulations need to keep us going.
(3)
Political Credit Congress can take the credit for solving a
problem if it sets up an agency and leaves the work to them.
(4)
Ease in lawmaking/Political Insulation Avoid deadlock in
Congress by allowing an agency to deal with some decisionmaking. Is it good to circumvent political process in this way?
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8)
Lockout/Tagout
(1)
Deals with the same statute as Benzene, but only 3.8
reasonability is at issue, not 6(b)(5) feasibility.
(2)
OSHA decided that to protect workers from dangerous machinery,
employees should be locked out from them, unless the employer
could show that a tag out would be as effective.
(3)
Here again, the Court does not strike down the statute, but this time
the Court tells the agency to go come up with its own intelligible
principle instead of either sending it back to Congress or
aggressively reading one into the statute itself.
(4)
OSHA doesnt actually change its rule, it just gives more reasons
for its rule, and the court buys it.
9)
(2)
(3)
(4)
(5)
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B)
(3)
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2)
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3)
(2)
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(4)
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III)
(4)
3)
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6)
(4)
Examples: if statute (no), if rec (no), if gen rent control (prob not
unless sm # of units affected), if one landlord (yes).
7)
Why was an oral hearing required in Londoner (as opposed to written
comment)?
(1)
Provides an opportunity to address arguments from the other side.
(2)
Greater publicity/accountability/transparency.
(3)
Ensures that agency is actually paying attention to the arguments.
(4)
Generally, just more effective and ppl feel heard (dignitary issue).
8)
How can we distinguish quasi-adjudicative from quasi-legislative?
(1)
Generality and number of people involved.
(2)
Type of issue to be resolved how useful hearing would be.
(3)
Prospectivity new rules for the future. Whether primarily
forward-looking (adj seems more backward looking; rules look
forward and need hearing to apply rule to facts, though can have
retroactive rule see APA requirements).
(4)
But there are cases in which the decision looks adjudicative, but is
done by a legislative body; if its a leg body, no hearing required bc
we can control through political process.
B)
Rulemaking and adjudication Administrative Procedure Act and judicial
common law constraints
1)
Authorization for agencies to act and intro to the APAs forms of agency
action rulemaking and adjudication
(1)
The APA is NOT a grant of authority it only constrains agency
action with procedural requirements.
Formal
Informal
(2)
(3)
Rulemaking
556-557, 553(c); on
the record after hearing
like a trial
553; notice + comment
Adjudication
554, 556-57; on the
record after a hearing
None; catch-all no req at
all, just whatever is left
551 Definitions
(a) Rule: gen/part applicability and future effect
implement/interpret/prescribe law and policy. Same
effectiveness as if passed by Congress binding on agency and
others.
(b) Rule-making: formulating, amending, repealing rule
Informal rulemaking (Notice and Comment). Governed by
553.
(a) Notice of proposed rule NPRM (Published in Fed Register)
with authority and reasons for proposal.
(b) Public comment,
(c) Effective date (usually 30 days),
(d) Notice of final rule, published in Code of Federal Regulations
10
(4)
(5)
(6)
(7)
(8)
11
(c) The Court holds that the FTC does have the authority to engage
in rulemaking. The Court mostly considers policy/practical
concerns, looking to overall intent of statute:
(i)
Rulemaking gives agencies more flexibility; court
knows formal adjudication is cumbersome.
(ii)
More notice to regulated entities.
(iii)
Better check on the agency increased participation
among regulated entities.
(d) Perspectives on rulemaking v. adjudication
(i)
Gas station owner more review with adjudication
(argue facts etc.). But rulemaking would give notice, the
rest of the gas station owners would back her up, she
wouldnt be singled out, which is less arbitrary.
(ii)
Gas station down the street This rule would be
binding on her if made by adjudication, but she might not
know the case ever happened. Assuming she does know,
she could file an amicus brief, but that is a lot of effort. In
rulemaking, she could make comments. Also, the rule
would be binding on the agency as well as her. In
adjudication, the agency could change its mind.
(iii)
Agency Rulemaking is more efficient than
adjudicating individual cases, as it would take a long time
for a brightline rule to evolve. Comments lead to a wider
range of expert opinion from regulated entities. A rule can
be general, whereas an adjudication is more specific.
Rulemaking provides more notice, which leads to better
compliance, more confidence in the agency, and avoids
triggering Congressional oversight.
(iv)
Consumer Rulemaking would give consumers a
chance to comment, while the only way to voice an opinion
is adjudication is an amicus brief; though, might worry
about industry influence on rulemaking.
(v)
Congress member Maybe the congress member
can take more credit if a brightline rule is issued through
rulemaking. Maybe rulemaking gets to the goal of the
authorizing statute more quickly/is more efficient/fair.
Congress can participate more in rulemaking (comments,
ex parte) than in adjudication (no ex parte comments
allowed, can only file amicus brief).
(vi)
President Easier to make views known in
rulemaking bc cant contact hearing officer in adjudication.
2)
Formal rulemaking and formal adjudication When are these triggered
under the APA?
(1)
U.S. v. Florida East Coast Railway (Pg. 514)
12
(2)
3)
13
(2)
(c) This was the state of judicial review before the APA.
Regulations were treated like statutes for purposes of
Constitutional analysis, and statutes were treated with great
deference.
APA 706
(a) So this calls for review. . . of the whole record.
(b) But 553 doesnt require record making. So does 706
apply? Maybe it only applies where there is a record i.e.
when 556-57 are triggered.
(c) How could courts work within that to maintain some review
power over 553 proceedings?
(i)
Read authorizing statutes more aggressively so that
they trigger formal hearing procedures.
(ii)
Strengthen direct review get more info out of the
agency.
(iii)
Have weak direct review and the review the
application of the statute because applications would be
adjudications, which do have a record. (The APA doesnt
says whether you can do that or not.)
14
(4)
(5)
(6)
15
(7)
(e) Ct doesnt really examine the substance of the rule here, but
sometimes it does to see if rule is procedurally invalid (i.e.
failure to give notice and comment) (Nova Scotia, Vermont
Yankee) or completely unauthorized. Instead of looking very
closely at the substance of rules, courts aggressively
interpret informal rulemaking requirements (souped up
process) make agency think, improves quality of agency
decision, consider more viewpoints, more for cts to review.
(f) Is she out of options? Nah
(i)
She could challenge the Constitutionality (due
process), say arb+cap in court. Or try to get statute
changed/repealed in Congress.
(ii)
Argue that she was misclassified.
(iii)
Petition the agency for a change in the rule (grid).
What happens to judicial review when agencies do this?
(a) The judges have lost a tool in reviewing agency action.
(b) They could just try to review based on the minimal record.
(c) But! They dont do that
16
(e) So this is a big shift from Pacific Box; after this case, the court
looks to the rulemaking record see if there is support for the
regulation. Is this good?
(i)
Slows down the rulemaking process. This is often
good, but what if there is an emergency?
(ii)
Increases costs.
(iii)
Hopefully it results in more accurate information
and better regulations.
(iv)
Transparency leads to more trust in the agency.
(v)
Judges are experts on procedure, but not on
substance, so maybe this is a good set up.
(f) Nova Scotia is the current state of the law. Cts didnt end up
going the way of Pacific Box.
(9)
(10)
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(11)
(12)
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(17)
(18)
(19)
(20)
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Agency view
(a) The agency can pick and choose comments and commentors,
whereas in notice and comment, everyone who wants to can
weigh in.
(b) Less expensive and less time-consuming. Especially important
if, for example, a president has two years left in office.
(c) Hoping no one will challenge flies below the radar.
(d) Safe harbor (notice) Better to know up front if you will be
pursued by the agency.
Regulated entity view
(e) You lose the ability to comment up front.
(f) It may be cheaper to comply than adjudicate, in which case you
never get any say. Even if you do litigate, you have to wait for
enforcement in order to do so.
(g) You might comply if the agency has good arguments. And the
agencies are more or less betting that you will comply.
(h) There may be commercial benefits with compliance. Like
proclaiming your tuna is dolphin safe.
Consumer view
(i) Lose the chance for comment.
(j) Lose the chance for challenge, most likely. The regulated
entities are the ones to challenge.
(k) Cant really challenge the agency decision not to enforce.
Interpretive Rules
(21) Doesnt say anything new, only clarifies an existing norm.
(22) American Mining Congress v. Department of Labor (Pg. 552)
(a) Secretary of Labor decided that diagnoses of certain diseases
had to be reported within 10 days of diagnosis. The labor dept.
issued Program Policy Letters to tell mine operators how much
darkness on an x-ray would trigger the reporting requirement.
(b) DCC said that the PPLs were interpretive. Gave several
factors.
(i) In the absence of the rule, can the agency still take action?
(ii) Published in the Fed. Register?
(iii)
Has agency explicitly invoked legis. authority?
(iv)Does the rule amend a prior rule? (See National Family
Planning v. Sullivan for amendment w/o notice and comment,
p. 553).
(c) If the answer is yes to any of these, the rule is legislative, not
interpretive.
(23) Hoctor v. U.S. Dept. of Agriculture (Pg. 555)
(a) Mr. Hoctor owns big cats. He builds a 6 ft. fence around the
cages, relying on the Agriculture Dept.s statement that 6 ft is
tall enough to satisfy the structurally sound requirement of
the regulation promulgating through notice and comment.
20
(24)
4)
(b) The Dept. then issued a rule requiring 8 ft. fences w/o notice
and comment, claiming it was an interpretive rule.
(c) Hoctor challenges and the court says it is not an interpretive
rule. It is not interpreting any statute (not interp structurally
sound,) and the choice of an 8 ft. fence is totally arbitrary.
(d) It is difficult to reconcile this case with American Mining.
OMBs Final Bulletin for Agency Good Guidance Practices
(a) Suggests proposed guidance comments finalize guidance
(b) Still not binding on agency, cant sue agency to comply
(c) Effect: brings paper hearings back for sig. guidance documents
useful discipline on agencies but slows down process
21
(c) The majority says that the Excelsior rule was improperly made
under the APA, and therefore invalid.
(i) The rule was announced in adjudication but not applied to
the parties before the court. Parties werent sure if it would
apply to them, so maybe not fully argued.
(ii) It is a general rule (broad, new, prospectively applied)
that should have gone through rulemaking.
(d) It also says that the NLRBs order to comply with the subpoena
was still proper (reasons were ok even though relying on bad
precedent).
(e) So the court puts some limits on agency rulemaking through
adjudication, but it is still ok.
(3)
(4)
22
(iii)
No formal adjudication, so maybe the court is
concerned about due process.
C)
Traditional View
(1)
Rights/privilege distinction
(a) Rights - The government can take someones property, but only
if there is due process. An individual cannot take someones
property.
(b) Privileges If an individual can do something to another
individual, then the government can also do that thing w/o due
process. Govt can condition a privilege.
2)
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(5)
3)
4)
5)
The idea is that if the govt itself has constrained its discretion in given
and taking away benefits, then they have created an entitlement protected by due
process. The beneficiaries have relied on the constraints.
(1)
Does this act as an incentive for the govt ever to limit its
discretion? Hmm
(2)
Note how this works: Under due process, you get a hearing. That
is all. It isnt a guarantee of getting your job/benefits back.
(3)
There is also a burden shifting issue a predetermination hearing
puts the burden on D, a postdetermination hearing puts the burden
on P. (I think this is right.)
6)
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(3)
7)
8)
Liberty Interests
(1)
This is about the right to do stuff. It is harder to define.
(a) Paul v. Davis Police said this guy was a shoplifter and
circulated a flyer saying so. Court said no protected interest
reputation is not important enough. Must be rep PLUS.
(b) KY Dept. of Corrections v. Thompson Prisoner had no liberty
interest in family visits; govt had not limited its discretion.
(c) Sandin v. Conner No protected liberty interest in not being
searched in prison.
(i) Court is worried about providing a disincentive for prison
supervisors to make rules to guide low level employees. Due
process challenges all over the place would be such a
disincentive.
(ii) Ct wont usually find deprivation of liberty in prison unless
atypical and significant
(d) This is all kind of a federal common law approach the fed.
cts. are making it up as they go along.
9)
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(2)
10)
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(4)
(5)
(6)
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(8)
28
29
(c) The Court also says that review must be on the ENTIRE
record.
(i) Here, that included the initial determinations of the
examiner.
(ii) The idea is that you cant just zone in on the evidence that
supports the view you wish to take. If a guy has 500 lbs. of
fertilizer in the storage space of his apt., it might be relevant
that his brother is a farmer
(d) There are some issues with this standard:
(i) What about agency bias? Take a pregnancy discrimination
case in front of the EEOC for example. The EEOC is charged
with ensuring equal opportunity employment this may cause
them to favor claimants who claim discrimination. Worried
about agencies hiding policy-making in bad fact-finding.
(5)
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3)
31
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
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(3)
34
Chevron Step 1
(4)
(5)
(6)
(7)
35
(a) Court says on step 1 that the agency is wrong about the
meaning of modify (FCC says can modify meaning get rid
of tariff reg for certain carriers to stimulate competition).
(b) It becomes the war of the dictionaries. The one the agency is
relying on is a renegade dictionary. Modify = small change,
cant mean partially eliminate.
(c) Scalia, writing the opinion, also doesnt believe this one little
word would allow so much power to the agency he wants a
clearer statement from Congress. Cant stomach the result.
(d) Note ct does not look at whether interp reasonable just says
FCC doesnt have authority to interp this way.
(8)
(9)
(10)
(11)
36
(12)
(b) The Court does step 1 analysis and says that the statute is clear
and the agency is wrong.
(i) Court looks at legislative purpose to do this. They think
they have the right interpretation because the purpose of the
statute is to minimize waste.
(ii) Again, this is the courts perception of what Congress was
thinking.
Step 1 Tools:
(a) Statutory language: close reading, canons of construction
(usually cts use textualism to give deference and never get to
Step 2)
(b) Leg history: whether Congress clearly answered precise Q
(c) Purposes of statute: might use to read lang more ambiguously
and give deference, or use to say agencys def makes no sense
(usually comes up in Step 1 and Step 2)
(d) If ct cant stomach the result (if Congress had meant this,
they would have been extra clear): usually for
critical/important isues see as special type of Step 1 or
exception to Chevron (cts retaining primary authority to say
what the law is). Note that ct is IDing these important
questions; usually in these cases, ct wants Congress to
explicitly say agency can do something bc unclear if they
thought about it beforehand.
(e) Constitutional avoidance: assume Congress did not mean for
agency to be close to constitutional line (see below)
(14)
37
(a) Ct will only find agency interp unauth unless raises grave
constitutional Qs; here, ct is willing to reach constitutional Q
and says agencys interp is constitutional
(b) This was an agency flip-flop issue, but the ct defers anyway
does this make sense?
(i) Contrast with Skidmore: one of 4 parts of test is
consistency
(ii) Flip-flop due to change in administration pros (suggests
democratic responsiveness, flexibility) and cons (seems more
political, inconsistent so less notice/predictability)
(iii)
Agency defended w clear reasoned analysis, so ct
thinks ok here
(c) This is a Step 2 case ct finds interp reasonable.
(15)
What about when an agency says a state law shouldnt exist? (We
didnt talk about this.)
(a) Example should the FDA be able to say that if a drug
manufacturer meets minimum labeling requirements they are
immune from further state law requirements and from state tort
law?
(b) What about state autonomy? If Congress is clear, the state law
is preempted. But should agencies be able to say state law is
preempted? If we allow this were weakening federalism
Chevron Step 2
(16)
(17)
(18)
38
(a) Majority says text and leg history do not foreclose agencys
interp; also looks to purpose of statute look to substantive
policy choices and whether legit/reasonable
(19)
(20)
39
(21)
(22)
40
(25)
41
(27)
(28)
(29)
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5)
(3)
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(e) In this case, the Court is very concerned that the Administrator
is not giving enough consideration to environmental concerns,
and the statute seemed to prioritize them.
(i) Is this just agency response to political winds? Is that
appropriate?
(ii) The Court seems to read into prudent that the agency is
required to consider everything. But maybe it should be read
as a broad grant of discretion to the agency.
(iii)
Maybe the worry is that this is more than
responding to politics maybe the agency has been captured
by the hwy builders.
(f) The idea here is that the agency should take a hard look at all
the relevant considerations, and the courts will enforce this by
taking a hard look at the agencys hard look.
(i) Note that this is still pre-Chevron, so deference to agencies
wasnt really happening yet.
(ii) The more the courts look into the agencys decision
making, the more likely it seems that they will substitute their
own judgment.
(iii)
First step is statutory construction; then whether
clear error of judgment.
(4)
(5)
44
(7)
45
(e) Scalia writes for majority says lighter hard look ok seems
right to us
(f) Breyers dissent: thinks review should be tougher harder hard
look, ind. agency so need closer oversight
(g) Overall: does arb+cap review make things better? Maybe
yes agencies will be more careful, cts monitoring process
rather than 2nd guessing substance but also leads to delay.
(8)
Arb+Cap Conclusion
(a) Does arb+cap review make things better? Maybe yes
agencies will be more careful, cts monitoring process rather
than 2nd guessing substance but also leads to delay.
(b) Vs. Chevron review: only includes agency interp of law (not
just a ruling) Step 2 asks if interp inherently, substantively
unreasonable (more substantive); arb+cap focuses more on
process, irrationality, problematic reasoning, logical connection
btw facts found and decision reached sounds more in process.
(c) Note that APA does not allow seeking damages (which is
covered under Tucker Act and FTCA. APA is just used for
setting aside or compelling govt actions.
7)
46
8)
9)
10)
47
(1)
(2)
(3)
(4)
(5)
11)
Agency action committed to agency discretion by law: What does it mean
when there is No law to apply? Limit from background norms broad
discretion; abuse of discretion; if agency says acted lawfully end of discussion.
(1)
Maybe the discretion given to the agency is so broad that the
agency is the judge of which things are within its discretion.
(2)
Maybe when the authorizing statute doesnt speak to something,
the agency is overstepping its grant of discretion.
(3)
701(a)(1): statutes which preclude judicial review (lang, structure
except constitutional questions)
(4)
701(a)(2): committed to agency discretion by law no law to
apply Heckler v. Chaney presumption of nonreviewability
(5)
(6)
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49
(9)
Standing
12)
50
(1)
(2)
(3)
(4)
(5)
Prudential Standing
13)
14)
15)
51
(1)
(2)
16)
17)
Natl Credit Union Admin. v. First Natl Bank & Trust Co. (Pg. 828)
(1)
FCUA reads common bond of occupation to mean that you can
have a credit union with lots of lawyers instead of just employees
of one employer. Banks challenge.
(2)
The statute probably wasnt mean to protect competitors, but to
maintain strong credit unions. But the court still finds enough of a
relationship between the competitors and the statute. Ct looking
for some plausible relationship.
(3)
Can we reconcile this with Air Courier?
(a) Employees v. competitors? Maybe the court is more concerned
where it is about preserving market competition?
(b) More Congressional intent in Air Couriers?
(c) There are other statutes to protect postal workers, not so for
competitors
(d) No telling, really. Case law is not consistent liberal (arguably
plausible relationship) and conservative (actual purpose and
whether Congress had this group in mind when wrote statute).
Note: Congress can always override prudential standing in
statute (anyone can sue) but cant override constitutional
standing in statute.
Constitutional Standing
52
18)
So, Congress can say who they want to be able to sue. But there are still
Art III constraints on standing. Case or controversy is the actual language
these are judicially created standards.
(1)
Injury in fact: concrete, particularized, imminent, actual
(2)
Causation
(3)
Redressability
Injury in Fact
19)
20)
53
21)
22)
54
24)
25)
26)
Over time, the Supreme Court has added these. Highly factual inquiries.
(1)
Causation the injury must be fairly traceable to Ds action.
(2)
Redressability winning the suit must be reas likely to redress
your injury. (You have redressability even if some third party
interferes and your injury isnt actually addressed)
27)
55
29)
30)
56
(2)
(3)
Timing issues
(1)
Ripeness issue must be appropriate for review. Prudential,
pragmatic considerations. It may be difficult to examine the scope
of a rule or its consequences before it has been applied. Is it a
good idea for cts to review?
(a) Balancing test effects on courts/agency/plaintiffs. Agency
interest, Ps hardship if made to wait, effect on courts, legal vs.
factual (wait).
(b) Art III is also out there courts can only hear actual cases and
controversies, not abstract questions.
(2)
Finality
(a) Only final action is reviewable under 704.
(b) Courts ask whether the agency is finished with the issue and if
legal consequences (action w/ status of law) will flow from it.
Not if tentative or action of subordinate official.
(3)
Exhaustion
(a) Whether all other procedures have been tried whether there is
anything else that must be done before turning to the courts.
Pragmatic and functional concerns.
Ripeness: sometimes ct allows pre-enforcement review, sometimes it does
not! Heckler v. Chaney: must wait until post-enforcement for these issues.
57
32)
33)
34)
58
59
(3)
36)
37)
38)
60
inefficiency) makes it seem like Congress has more control bc President has less
control. Exec agencies heads removable at will.
(1)
Myers v. U.S. (p. 81): Congress passed statute saying cant remove
postmaster w/o Congressional consent; President Wilson fires OR
postmaster; Congress points to statute; ct says no way
postmasters job is executive so cant make removal of exec.
officer subject to Congressional approval.
(2)
Humphreys Executor (p. 81): FDR tries to remove and put own
guy in; ct upholds removal restriction, characterizes job of FTC as
quasi-leg and quasi-judicial (so not wholly exec in nature) ct
doesnt say whether Congress could limit removal powers of only
exec functions.
(3)
Bowsher v. Synar (p. 91): Congress passed statute saying
Congressional participation necessary before Comptroller General
can be removed; ct says function is executive so Congress must
leave alone. Formalistic approach to sep. of powers. Direct
Congressional involvement in workings of exec branch is not
ok.
(4)
Morrison v. Olson (p. 98): appointment of Independent Counsel by
panel of DC Circuit judges; removal only for good cause.
Investigating and prosecuting seem like executive but ct says
restrictions (good cause removal) do not unduly impede the Pres.
(5)
Metro Washington Airports Auth. v. Citizens for the Abatement of
Airport Noise (p. 98): not about removal Congressmen on review
board for airport oversight. Ct is formalistic: if exec function,
Congress acting exec, so not ok; if leg function, cant do without
bicameralism and presentment, so not ok. Either way, no good ct
concerned with Congressional aggrandizement.
(6)
PCAOB case (Tab U): board created after Arthur Andersons
flawed audits of Enron, within SEC adjudicatory, RM, invest and
enforcement. Assume for cause removal if not stated. Ct says
two layers of insulation from firing is too much PCAOB clearly
exercises executive authority, and ct is concerned with limitations
on Press power.
B)
61
2)
(b) Court says that once Congress has delegated, it can only limit
the authority by further legislation. Formalistic. (But
agencies make binding laws that dont go through presentment
and bicameralism )
(3)
There are alternative to retaining veto power.
(a) Sunset statutes a statute expires and Congress has to reenact it.
(b) Report and wait requirements agencies report to Congress,
have to wait 60 days, during which Congress can think it over
and pass negating statutes if it likes.
(c) Congressional Review Act (part of Newt Gingrichs Contract
with America only used once for ergonomics rule)
(i) Streamlines Senate procedures for overturning legislation.
Bars filibuster, pushes stuff out of committee.
(ii) Still subject to presidential veto, so if there is a president in
office who supports the agency, this wont work.
(d) Budget legislation and appropriations
(i) Budget legislation is different than other legislation the
appropriations committee has no overlap with the substantive
areas of legislation.
(ii) Often appropriations bills include riders. For example,
one rider said that OSHA wouldnt spend any money on the
ergonomics stuff.
(iii)
Riders are disfavored. Theyre small, hard to spot,
and can be snuck into a bill or tied up with stuff a president
cant veto w/o great political cost.
(iv)Also, agencies might rush rules through before the
president signs an appropriation bill, and then they can only be
undone w/ the same procedure.
(e) Other procedural requirements written into statutes: require
agency to consult, require certain analysis, require formal
instead of informal RM, make subject to judicial review, etc.
(f) Cross-cutting fed statutes to improve agency function across
the board: disclosure requirements (Freedom of Information
Act, Fed Advisory Committees Act, eGovernment), ethics
requirements, internal investigations.
Informal
(1)
Oversight Committee hearings to make agencies explain
themselves.
(a) Oversight committee is a standing Senate committee.
(b) Of course, this is flawed, as Senators do everything in light of
reelection.
(c) Oversight can also be exercised just by sending a letter to the
agency and saying, Hey, my constituents are worried about x.
(Dingelgrams.) A response is required, which takes time away
from the agencys work.
62
(2)
(3)
(4)
(5)
(6)
63
(f) Also note: agency can talk to anyone re: informal RM and
adjudication; if formal ex parte requirements, insular
decisionmaker, etc. arb+cap review (no subst evid review).
VII)
64
(1)
3)
65