AUTHORITY AND FIRST AMENDMENT

Delegation

100

What is the delegation doctrine? 

Congress cannot give away its delegated authority excessively. 

200

What two cases did SCOTUS strike down based on the delegation doctrine? 

Panama Refining 

Schechter Poultry 

300

What is the test to determine permissible v. impermissible delegation? 

Congress has to set out an intelligible principle to guide what it has given the agency to do. 

400

What was the holding and reasoning of FCC v. Consumer Research? 

The delegation was permissible because there was an intelligible principle. 

Sufficient and public interest could be defined. Knew who the program was intended to serve. "Evolve" did not make it too broad. 

500

What are the two possible solutions to the problem caused by congressional delegations of authority to independent agencies?

1. Overrule Humphrey’s Executor so that the heads of all or most independent agencies are removable at will by the President and thus supervised and directed by the President.

2. Apply a more stringent version of the nondelegation doctrine to delegations to independent agencies.

Major Q

100

What is the major questions doctrine? 

The issue is too big/brand new, if Congress intended the agency to have this authority it would have been explicit. 

200

Before you analyze major questions, what should you look at first? 

If there is broad authority in the statute, does that violate the delegation doctrine 

300

What are the two tests to determine if something is a major question?

• Majority – political significance, significant impact on economy, no history, and no limits on authority.
• Seeks to resolve a matter of great political significance, regulate a significant portion of the American economy, or intrude into an area that is the is the particular domain of state law (West Virgina v. EPA concurrence).

400

Why was the did the Court decide the EPA case was an example of major question? 

• No explicit authority in the statue – “best system of emissions reduction.”
• Huge economic and political significance
• No history of this being done before – reduce pollution by operating more cleanly, not by creating a new system with new/different sources (no coal plants).
• This plan had been considered by Congress numerous times and rejected.

500

Why did the Court strike down the loan cancellation plan? 

Major Question 

• The act allowed the Secretary to waive or modify; this rewrote the statute -- “Modify” means modest adjustments or additions, not transforming existing provisions. Does not identify any provision he is “waiving.”
• No history of this being done before.
• Economic and political significance

1A

100

What cases does Zauderer apply to? 

Advertising, protecting consumers, and preventing deception (govt interest) 

200

What three things MUST be present for a Zauderer analysis? 

factual, uncontroversial, and not unduly burdensome. 

300

What is the test for both central hudson and Zauderer and which is harder to meet? 

• Central Hudson: a substantial government interest that is directly and materially advanced by the regulation. The requirement must be narrowly tailored (alternatives) -- HARDER
• Zauderer: Substantial government interest and the requirement must be reasonable related to that interest.

400

Define "uncontroversial" and provide an example. 

The truth of the statement is not settled or is overwhelmingly disproven or the inherent nature raises a contentious political dispute. 

DC minerals case - by purchasing the products you were essentially funding the civil war, blood in the water. 

500

Explain the process of approaching/how to tackle a first amendment problem? 

1. Compelled speech? 

2. Central Hudson or Zauderer? Advertising, protecting consumers, preventing deception? 

3. If Zauderer applies is it factual, unconroversial, and not unduly burdensome 

4. Apply the actual test to determine if the govt met their burden 

Review

100

What are the requirements for a "for cause" removal to be constitutional under Humphrey's Executor? 

1. multi members 

2. experts

3. balanced along partisan lines 

4. staggered terms 

200

What are the Skidmore factors for deference? 

The weight will depend on various factors including expertise, long standing/consistency, contemporaneous adoption with the statute, validity of its reasoning.

300

If a "for cause" removal restriction does not fall squarely within Humphrey's Executor, what is one way you could still argue it is constitutional? 

unique structure and distinct historical tradition (Trump v. Wilcox). 

400

What is the rule from OPM v. Richmond? 

Generally, the government is not estopped even if they caused the violation. Except in the case of affirmative misconduct. The exception to the exception is the appropriations clause. 

Affirmative misconduct—significant consequences for the individual or the govt acts really bad.

500

Describe inter v. intra non-acquiescence and what is allowed?

Inter-circuit non-acquiescence—refers to the practice of an agency refusing to follow the case law of one court of appeals in actions it takes that will be reviewed by a different court of appeals.

- allowed

Intra-circuit non-acquiescence—refers to the practice of an agency refusing to follow the case law of a court of appeals that will review the agency’s decision.

- only allowed if they are trying to change the law and there needs to be evidence of that

Review

100

What are the pros and cons of voluntary disclosure?

Pros 

1. Seaboard factors

2. maintain good relationship with agency 

Cons 

1. FOIA 

2. May waive privilege 

200

How do you determine if a rule is interpretive?

• Although not dispositive, the agency’s characterization of the rule is relevant to the determination (deference).
• An interpretive rule simply states what the administrative agency thinks the statute means and only reminds affected parties of existing duties. On the other hand, if by its action the agency intends to create new law, rights, or duties, the rule is properly considered to be a legislative rule.

300

Provide an overview of SEC whistleblower program

Award for original info, led to successful enforcement, sanctions exceeding 1 mil 

Original information is derived from the independent knowledge or analysis of a whistleblower. Generally, does not include compliance officers, discovery during investigations, accountants, attorneys 

Cannot prevent an employee from whistleblowing and cannot retaliate against a whistleblower.

400

What are the 6 ways to challenge a subpoena?

1. Whether the subpoena is within the statutory authority of the agency 

2. Whether the information is reasonably relevant to the inquiry – tendency to show that a fact of consequence in the case is more or less likely. 

3. Whether the demand is unreasonably burdensome. 

4. Privileged information is generally not subject to disclosure – parties must produce a privileged log. 

5. Recent cases have suggested there may be privacy interests in information held by third parties. 

6. The “act of production” doctrine can provide some 5A protection for individuals (Hubbel).

500

Provide an overview of the APA and its requirements 

Notice in the federal registrar 

• A statement of the time, place, and nature of public rule making proceedings;
• Reference to the legal authority under which the rule is proposed; and
• Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Agency must consider and respond to all significant comments. 

Interested persons have the right to petition. 

Publication of a rule should not be less than 30 before its effective date. 

Final rule adopted has to be a logical outgrowth.