Constitutional Foundation
What is the nondelegation doctrine and its test?
The Non-Delegation Doctrine prohibits Congress from granting its authority to legislate under Art. I to entities that are not Congress. very deferential.
TEST:
What is the difference between rulemaking and adjudication?
Rulemaking creates broadly applicable standards, while adjudication resolves specific rights and obligations of particular parties.
Can courts add procedural requirements beyond the APA?
NO. Courts must exercise judicial restrain in administrative procedures. Congress sets the procedures, not the courts.
What is the four factor test for the Major Questions Doctrine?
1. Economic Significance
2. Agency Consistency
3. Congressional Action
4. Statutory fit
What are the two tests that govern notice and comment rulemaking?
1. Logical outgrowth test: the final rule must be a logical outgrowth of the proposal. (doing less than proposed, usually okay. doing more than proposed, usually not okay)
2. Comment response: Agency must respond to significant comments. (cannot just say "we considered everything" must actually engage with issues raised)
What is the intelligible principle test?
The Non-delegation Doctrine asks whether congress gave an administrative agency a sufficient intelligible principle. An intelligible principle is a policy objective (e.g., protecting public health) and overarching goals to fix a problem. The agency must adhere to the intelligible principle articulated in an agencies’ organic statute.
What is the difference between agency adjudication and Article III adjudication?
1. Evidence: Hearsay admissible. Why? Not concerned about "inflaming the passions of a jury"
2. Discovery: much more limited
3. Judge: ALJ (agency employee) not article III judge
4. Standard: preponderance of the evidence.
5. Burden: on proponent of rule or order.
What is the difference between interpretive rules and legislative rules?
Interpretive: merely clarifies existing obligations and is thus exempt from notice and comment
Legislative: Creates new obligations and is not exempt (notice and comment required)
What is the three step framework governing appointment of executive officers and employees?
1. Significant authority (to determine whether officer or employee)
2. If officer, principal or inferior? (principal = significant authority + not subordinate and unreviewable) (inferior = subordinate + subject to meaningful review)
3. Appointment Process required? (Principal = president + senate) (inferior = President alone, dept heads, or courts.)
What are the four standing requirements?
1. Injury in fact: concrete (real harm), particularized (affects this plaintiff), and actual or imminent (not speculative).
2. zone of interest: arguably within zone that statute protects.
3. Causation: fairly traceable to Ds conduct.
4. Redressability: favorable decision likely to help.
What are quasi legislative and quasi judicial functions?
Quasi-legislative functions: Rulemaking authority, Setting policy standards, Fleshing out statutory details
Quasi-judicial functions: Conducting hearings, Making findings of fact, Adjudicating disputes
When are formal procedures not triggered in agency adjudication?
Stategic implications:
For agencies:
For parties:
1. May prefer adjudication (individual hearing) or rulemaking (policy participation)
2. Formal procedures = more protection, but more delay
3. Can sometimes force formal procedures through statutory interpretation.
What is the policy statement test?
1. Does the policy statement impose present rights and obligations?
2. Does the policy statement leave the agency free to exercise discretion?
What are the three categories and rules of each regarding the President's removal power?
1. Default: Pres can remove principal executive officers performing purely executive functions (Myers rule) EXCEPT: congress can limit to "for-cause" if multi-member commission with quasi-legislative/judicial functions (Humphrey's executor)
2. Prohibited: single director + for-cause protection (Seila Law and Collins) AND double for-cause protection (Free Enterprise Fund)
3. Permissible: Multi-member commissions with for-cause (FTC, SEC, NLRB) AND single direct without for-cause. (seila law)
President has unlimited power to remove principal officers who exercise purely executive functions. Congress cannot:
**For-cause standards acceptable: "inefficiency, neglect of duty, or malfeasance in office." Must serve legitimate independence purpose
What are the three standards of review and tests for each?
1. Substantial evidence standard: applies to formal adjudication, asks whether a reasonable person would accept the evidence as adequate in light of the entire record.
2. Arbitrary and Capricious Review: applies to agency rulemaking and policy decisions. The agency must (a) consider relevant factors, (b) explain connections between facts and conclusions, (c) address significant alternatives, and (d) respond to comments.
3. Policy changes: Agency may change policy if it acknowledges the change, explains reasoning, and addresses any contradicting prior facts or reliance interests.
What is the big takeaway from the Jarkesy case?
The enforcement of Dodd Frank's civil penalties for securities fraud in the SEC's administrative proceedings violated the Seventh Amendment's guarantee of a jury trial because (a) the case involved traditional common law claims (fraud), (b) civil penalties are a legal remedy to which the Seventh Amendment attaches, thus (c) the claims are not a matter of public rights that can be adjudicated in administrative proceedings on the mere basis the government is the plaintiff.
Can an agency go through the adjudication process to create a new rule?
NO.
What is the framework for determining whether a rule is legislative or interpretive?
1. Start with the American Mining Test:
2. If no clear resolution:
When is the 7th amendment (right to jury trial) implicated and what is the test?
TEST: (1) is suit legal in nature? (money damages?) (2) Involves private rights rather than public rights?
If both yes, then jury trial required.
What is the framework governing statutory interpretation?
1. Did congress clearly delegate interpretive authority? YES = arb/cap review, NO = independent interpretation + skidmore weight.
2. MQD implicated? need clear stat authorization.
*Courts interpret independently using traditional statutory interpretation tools (canons, textualism, etc.)
What are Congress's options when seeking to control agency actions?
What is the Agency Choice Framework?
1. Broad agency discretion under Chenery II
2. Strong Presumption for rulemaking when establishing federal polic
3. Adjudication appropriate when:
4. Courts rarely intervene on procedural rulemaking!!!
5. Real impact on individual rights and regulatory efficiency
What is the Matthews Formula?
Balancing test:
If ratio is high then additional procedures required
If ratio is low then current procedures are sufficient
Note: Applied wholesale to categories, not case by case.
What are the two tests for due process?
1. Formal adjudication: notice, hearing, neutral arbiter, right to counsel, decision on record.
2. Informal adjudication: Matthews v. Eldridge balancing test: private interest affected, risk of erroneous deprivation, government's interest.
What is the framework governing regulatory interpretation?
1. Genuine ambiguity
2. authoritative position
3. substantive expertise
4. fair and considered judgment
If requirements met = deference to agency interpretation (Auer/Kisor)