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Stat Reg Outline Structure of a Modern Statute p166 Title the formal title states the basic purpose or function of the statute Enacting clause meant to proclaim the fact that the statute has become law Short Title for the sake of reference Also called popular name Statement of Purpose Preamble and findings Definitions typically but not always appear at the beginning of the statute Operative Provisions the heart and soul of the statute Contain the result the statute is trying to achieve or the state it is attempting to create May also contain exceptions Subordinate Operative Provisions supportive of or secondary to the main objective Implementation Provisions legs and arms of the statute They enable the statute to do what it purports to do Criminal sanctions and penalties The Teeth Statutes do not always separate their operative and implementation provisions Are combined in older statutes Specific repeals and related amendments if a statute either repeals of amends another statute then it may contain a statement to that effect Preemption Provision bars the application of state law Exception Expiration Date a statute may contain a provision indicating that it will expire or sunset on a specific date Criminal statutes are different than regular interpretations because they are seen more narrowly to be fairer to the public How do you determine specific definitions dictionaries should match the purpose What are legislative s history s limits look to the result reached by the statute in a variety of situations and see if it s logical or not ex women pushing a baby carriage in a park Also page 17 WHERE STATUTES COME FROM IN ORDER 0 The legislative process any legislation passed has to go through both houses of congress bicameralism and be signed by the President 0 Good Advice Intervene early and often Participate in the drafting and hearings process Build relationships before you bring the bill EX apple settlement for children downloading apps on their parents account Apple held parents responsible Is there a legislative response that might be merited and how could that be brought about Yes Group would like a statute that says a computer manufacturer cannot hold the parent responsible for downloads of minors in their families 1 2 3 The ability to draft legislation is open to the public but the ability to introduce it is limited and has windows of time You could also hire lobbyists to draft legislation You select a legislator to introduce your bill which districts are most friendly and which legislator cares a Congressional legislators are the ones who can draft and introduce legislation into a session of Congress Referral hearings before a committee But there are lots of committees so who chooses which one it goes to The speaker of the house Matters how you draft the text of your bill Some committees may be more receptive than others So you can help in uence which one you go to The speaker of the house can also refer to multiple committees if he thinks they apply a Once you re in front of the committee you have a hearing that generates information needed and gives a committee report Then it is referred back to the house b In the senate who makes the decision Senate presiding officer Floor Scheduling huge differences between house and senate The House has more rules related to scheduling where the senate does not The more important the issue the faster it will be heard If it s controversial it gets put on the calendar as a major bill House has the ability to make rules germane In the senate there are no special rules You can filibuster you have to have unanimous consent of the senate to proceed on scheduling of the bill not the bill itself Opposing group options Now an opposing group computer association joins the scene and wants to kill the bill It would be logical to try and kill it during the hearings process You could also select your own legislator 90 of bills die One other reason a lot of bills die is how it gets calendared Minority group can filibuster in the senate Vetogates that will automatically result in the death of pending legislation 1 failure by the speaker of the house to refer the bill to committee and 2 a majority of the committee which has received the bill fails to report it back to the house or senate 4 Floor Consideration the house oor only people that speak are the representatives themselves Amendments can be made in order to try to get people to vote with you You write the rules as you go Senate can filibuster at this level again 0 Budgets and appropriations get moved up and passed faster 2 5 Reconciliation we have passed the house and the senate but now have two bills Now you have to reconcile the two together The house or the senate could also choose one bill or the other instead of combining Also a conference committee could generate their own report important for interpretation purposes 0 This is the final killing zone in congress 6 President The president can sign or veto the bill However the president doesn t have to veto it in order for it to die He can just not sign it within 10 days and pocket veto it so if the congressional term ends before it s signed then it s vetoed and can t be brought back because congress is out If congress isn t out they could overturn the veto by a 23 vote President can also use a signing statemen giving their statement of interpretation of the bill andor ordering the executive branch whether to enforce Lobbyists and Law Firms most lawyers charge for services on an hourly basis or on a contingency basis of the winnings Lobbyists are not providing legal research or showing up in a courtroom but know people and get paid by retainer a lump sum Get paid on a monthly basis as to whether or not they re needed Most law firms can t hold onto lobbyists because it s harder for them to see their economic return Review Question Example If the governor of Texas chooses not to sign a bill that has passed both chambers of the Texas legislature with less than 15 days left in the current legislative session he has allowed the bill to become law WHAT ACTUALLY GOES INTO WRITING A BILL Legislative drafting process the whole process is intensely collaborative 0 Dickerson s suggestions for Legislative Drafting 1 Collect the facts significant and relevant facts 2 Think of related law harmonize with existing laws and know what the current laws are 3 Outline 4 Think of your legislative audience be simple and understood for general public but sometimes levels of specificity can be required 5 Vertically draftsman ties to deal with all the problems affecting each successive segment Writing it top to bottom 6 Horizontally try to deal with only one or two problems at a time for the bill as a whole This gets sent to committee which can mark up or change your billstatute It is never only under the control of one person or the original writer Then the calendar leads to oor debate where it 3 can be changed even more The drafting process provides some kind of structure but the bill will still go through a hodge podge of change Legislators might have to make changes and corrections to the bill on the y doing the bill on the oor Specific fears of drafting on the floor include 0 Provisions being slipped in 0 People losing track of whether one provision squared with another 0 A provision being added to satisfy the needs of a senator in trouble for reelection What do legislators do in order to get a bill passed they may not agree on Use passive language Make diction more ambiguous gets decided by courts and agencies Drafting may be intentionally bad Three Theories of the Legislative Process 1 Public Choice Theory models voters politicians and bureaucrats as mainly self interested To move towards a medium decision DeeDlv cvnical view of politics Economics is based on the rational man who makes decisions that are the best for himself Just replace money with politics They will act rationally in order to maximize their individual holdings whether or not it is good for the public as a whole The general held beliefs of the population can be outweighed by the higher cares of special interest groups even though there s less people Politicians will act in ways that will get them reelected 2 Social Choice Theory combines individual opinions preferences interests or welfare to reach a collective decision or social welfare in some sense Mathematical formula for what order you vote in How people actually vote the mechanics not the values If you structure a vote with different timing and tiers then it can affect the answer each time 3 Positive Political Theory strategically vote to get something in the long term even though it may go against their current beliefs Vote for Hilary Clinton so Obama would not get the democratic election Takes gain theory and selfconscious predictions to see how people will make voting decisions Problems with Snack Attack Statute 1 Impossibility wrong time does Shipleys even make dairy free kolaches What do you do with a statute that has impossible provisions You can try to interpret the statute within semantic range in order to satisfy the point of the statute How far can a court push the language 2 Indefinite Term If a statute fails to specify the time frame for its operation the court typically can imply a term or time from general language in the statute as needed to effectuate its statutory purpose Of course this rule isn t hard and fast for example a court might not be able to infer an effective time frame for a statute if it creates an ambiguity that causes constitutional issues by imposing a retroactive criminal liability 3 Excessive Specificity don t limit yourself 4 Veto Bate unacceptable parts that effect the provision Don t be too outlandish 5 PreemptionIntegration Question Must look at university policy in regards to attendance and see how that applies to the statute Is this classroom allowed to have food in it Why is a statute different than a contract There is nothing in the constitution limiting congress power to target one person statutes and contracts can both be conditional but a contract must have consideration whereas statutes do not THEORIES OF STATUTE INTERPRETATION Tool of Statutory Interpretation is an instrument for ascertaining the meaning of a statute like the dictionary Theory of Statutory Interpretation a normative view of how courts should interpret statutes Concern the role of our courts in our governance system A particular theory of statutory interpretation may lead a court to exclude or deemphasize particular tools Textualism permits courts to rely on dictionaries as a source of statutory meaning but prohibits them from relying on indications of legislative intent in the legislative history This has become the starting point for most interpretation now Intentionalism instructs courts to implement even when that intent is not clear from the plain meaning of the statutory text and discernible only through other sources like legislative intent More specific than Purposivism Look for the specific intent that congress had when passing the statute Purposivism courts began to shift their focus away from the actual intent of Congress to the Look to the larger purpose of congress and interpret the statute in a way to achieve that purpose Legal Process Purposivism when there is ambiguity in the statute the courts should determine what a reasonable legislature would have sought to achieve in the circumstances Kinds of seems like the reasonable person standard Imaginative Reconstruction it applies when congress failed to appreciate an issue and therefore cannot be understood as having an intention as to that issue Asks the court to stand in the shoes of congress r the court should imagine what congress or a reasonable congress would have said when faced with a particular question Dynamic Interpretation sees courts more as partners with congress than as faithful agents of the enacting congress in developing the meaning of statutes Courts are applying their own understandings and values in order to interpret statutes Absurd Result Doctrine most controversial Look to page 17 for application Look at text first then at the structure of the statute If there s still ambiguitV then an intentionalist will look to what congress intended then look to absurd results doctrine result should not be clearly unacceptable Look to intent and then purpose I Church of the Holy Trinity v United States does the federal law prohibiting bringing in foreign labor apply to a church paying for the importation of their new pastor No The court held that the term quotlaborerquot in the federal statute applied only to cheap unskilled labor and not to professional occupations such as ministers and pastors Textualism Even though it does not actually say this in the statute For this the Court looked to intention 0 Ex like when they claimed that they did not think Congress intended for the law to apply in the present case You can argue that the words are ambiguous because we don t know what kind of labor the statute meant to prohibit Statutes purpose was to prohibit foreign manual labor which was ruining the US work market the court looked to legislative history for this The senate report said that they recommended changing labor to manual labor but they didn t change it because they wanted the bill to get passed 0 you can cherry pick legislative history to find things to support your position instead of looking at review as a whole If they meant to say it then they shouldwould have said it The note provides exclusions for artists actors and so on by not mentioning pastors the statute 9 639 meant to include them Statute claims any person 1n any manner whatsoever for service of any kind so Congress was attempting to make the statute very broad 0 Absurd result doctrine pg 17 could thwart the development of religion in the US by not allowing pastors to come in Not a great argument because they re referencing people from before America was a country Christopher Columbus and the King of Spain 0 Can the court just change the parts that make it absurd or do they have to scrap the whole thing Usually a court will not override one portion of the statute However congress can expressly state that the rest of the statute remains in effect even if the courts declare one portion of it unconstitutional think of it as a statutory severabilitv clause 0 Take Away Idea Re ects the widely shared assumption that the primary role for our courts is to serve as faithful agents of congress in interpreting statutes that is to identify and enforce the legal directives that an appropriately informed interpreter would conclude the enacting legislature meant to establish SETS OF TEXTUAL TOOLS USED TO INTERPRET STATUTES How do we figure out what the words mean in the statutes Ordinary Meaning vs Technical Meaning The directs courts to give effect to the text if it has a plain meaning that is the text is not only a starting point but the stopping point The plain meaning rule also known as the literal rule is a type of statutory construction which dictates that Statutes are to be interpreted using the ordinary meaning of the language of the Statute unless a Statute explicitly defines some of its terms otherwise Nix v Hedden Duty imposed on vegetables but not fruit P brought tomatoes into the country and tried to argue that they were fruit and therefore not subject to tax Holding tomatoes are vegetables How to determine the meaning of the word 1 Atomic level look to dictionary definitions but different dictionaries can give different definitions How do you choose which one to use The court uses 3 different dictionaries but doesn t rely on any of them for judgment a Iudicial notic the court acknowledges a commonly accepted and known fact but doesn t establish its existence by admitting evidence to support it used infrequently Here common use of the word vegetable encompasses tomato even though botanical definition declares a tomato a fruit i What would people expect People deserve to have notice of the law that way they don t accidentally violate it 7 2 No special meaning accorded to fruit or vegetables in the industry or trade Used witnesses who had been in the business for 30 years and asked them the definitions Looks to setting 3 common language tomatoes usually eaten as vegetables for dinner Looks to audience Court will use terms accessible to the public for penal statutes Muscarello v United States United States won the case in a 54 decision Is the phrase carries a firearm limited to the carrying of firearms on the person or does it apply more broadly to having the firearm in your car 0 18 USC Statute 924 c1 Whoever during and in relation to any crime of violence or drug trafficking crime uses or carries a firearm gets an automatic sentence of 5 years 0 Reasons for the maioritv s broad interpretation No special legal meaning congress intended for usual common English meaning So you can carry a firearm with you in transport in your car Carry actually came from the ancient word for cart SC goes into definitions provided by King James Bible Melville and Defoe great writers must know the language They also surveyed news articles and modern press 23 of news stories used carry in the way of conveyance o Acknowledges ambiguity but cites that lenity can only be invoked if the statute has a grievous ambiguity There is a threshold for allowable ambiguity Every statute no matter how perfectly drafted will have some type of ambiguity 0 Dissent transport is a better word for carry Majority was cherry picking from a spectrum of possible definitions There is more than one possible definition They want to use the word carry narrowly If there s ambiguity it should go for the defendant because of the principle of lenitv pg 13 CANONS OF CONSTRUCTION Courts almost always start with the text itself and then expand outward to other statutory provisions statute structure and other statutes Move from narrow to broad Canons of Construction can be divided into 3 broad categories Textual Canons a Linguistic Canons grammar or syntactic cannons rules or presumptions about how words fit together within a particular provision Based on grammar punctuation or associated words in a particular provision b Whole Act Canons presumptions or rules about the meaning of a term in relation to other terms phrases or provisions in the same statute If you are comparing the text in one provision to the text in other provisions of the same statute you are invoking a whole act canon c Whole Code Canons seek to make sense of a word in light of other statutes in the US Code If you are seeking to reconcile the text of one stature with the text of another statute you are invoking a whole code canon Substantive Canons Other Canons absurd results and scrivener s errors Babbitt v Sweet Home Chapter of Communities for a Great Oregon court trying to determine whether the word take in the endangered species act includes the definition of harm which would include habitat modification that kills or injures wildlife SC rules that it does 0 BSA makes it criminally and civilly actionable to cause the death of any endangered animal 319 Take means harassing harming pursuing hunting shooting wounding killing capturing or collecting 50 CFR 173 Harm means an act which actually kills or injures wildlife may include significant habitat modification 0 Arguments for inclusion of harm definition 0 Textual Canon Justice Stevens relied on the textual maxim ejusdem generis to define the term harm in the same fashion to other specific terms used in the statutory definition of take 0 Linguistic Canon term defined explicitly Who defined it The department of the interior defined it through the reading of the statute 0 Avoid surplusage of excess words in 3 19 What does harm include that the other terms don t already capture Harm could be seen as a catch all 0 Legislative intentpurpose meant to be a broad and inclusive act 0 Arguments for exclusion of harm definition 0 Noscitur a sociis you know a word by its associates Interpret the word harm with the words around it the common characteristic from a list of words 0 Congress Intent Congress left out private corporations and individuals for a reason only mentioned federal agencies in section 7 of the act Section 9 s absence of explicit standards for private corporations I Expressio Unius the express mention of one thing excludes all others 0 Normal definition of harm requires direct action and intent cultural norm common understanding of the word harm because the statute applies to a very wide audience 0 Legislative Historv one congressman has offered the comment that if there s a habitat restriction the government can buy it A LINGUISTIC CANONS Linguistic Canons are useful for interpreting words in the narrowest text in which they appear within the provision of a statute While a court will generally give identical words and phrases in a statute the same meaning it can ignore this fundamental canon and define the same word in the same statute differently if it has reason to believe that Congress used that term in two different sense The three most prominent canons are known by Latin phrases 0 When a statute sets out a series of specific items ending with a general term the general term is confined to covering subjects comparable to the specifics it follows The catchall is bound and restricted by the list itself 0 When general words follow a list of specific words in a statutory enumeration the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words Ex and other acts 0 Ali v Federal Bureau of Prisons US 2008 0 Claim for lost items can t apply to any officers of customs or excise or any other law officer Does this statute apply to a prison officer guard when an inmate s things that have been taken disappear No court determine ejusdem generis didn t apply because the list doesn t share a common attribute and includes disjunctive pairings 0 This is a tool to clarify the meaning of a broad catch all term at the end of a list of more specific terms a word is given more precise content by the neighboring words with which it is associated Aims to ensure that a term is interpreted consistently with surrounding words so as not to unduly expand statutes beyond their reasonable reach 0 Will not apply when a court finds no common feature linking the terms surrounding the one in question same as Ejusdem Generis Can either narrow or broaden 10 0 United States v Williams Statute that essentially has a catch all that criminalizes actions regarding child pornography Applies to anyone who advertises promotes presents or solicits child pornography What does present mean and does this make the statute too broad as to violate the 1st amendment 0 The broad meaning presents is narrowed because of the words around it dealing with commercial transactions to convey the information and promote the industry Used Noscitur a Sociis 0 What about a delivery man who doesn t know what s in the package Wouldn t apply because of the other words in the list He would not be promoting or advertising child pornography in any way because he is not aware of what he s doing 0 Courts apply the canon when they can infer from the inclusion of one term that the omission of another term was intentional If you don t say it then you meant for it to be excluded Puts a tremendous burden on Congress Inference that items not mentioned were excluded by deliberate choice not inadvertence or by accident 0 Again requires that the group shares a characteristic or association More Specific Variations of Expressio Unis Include 0 A list of specific exceptions to a general prohibition means that Congress intentionally excluded any further exceptions 0 Ex If there s one exception listed that means that all other exceptions were purposefully excluded 0 If the statute requires an action to be performed in a particular way compliance that requirement re ects a decision by Congress to prohibit other ways to perform that action 0 Ex By making organizations work a certain way you are purposefully excluding any other way that they could do things even if they re better faster or cheaper 0 When congress specifies a mode of preemption for a statute the courts will not imply additional areas of preemption based on the substantive provision of the statute so Congress intended to foreclose other general types of preemption 0 Ex Congress can intentionally draft preemption which trumps state preemptions Other Linguistic Canons 11 0 Punctuation alone is rarely sufficient to sustain or contradict an interpretation Arguments based on punctuation are less strong that those based on other tools or canons The deadly comma knowingly limited weight of parentheticals 0 The Last Antecedent Rule a limiting phrase only applies to the clause immediately before it and doesn t migrate upward through the statute 0 Ex the errant teenager s house party 0 Conjunctive v Disjunctive terms connected by a disjunctive like or should be given separate meanings unless the context dictates otherwise When a court senses a careless usage it may substitute or for and and vice versa 0 May v Shall the word may connotes a permissive or discretionary action whereas the word shall connotes a mandatory one Note the ambiguity of shall FRCP had a massive rewrite to purge this problem 0 The Dictionary Act p 277 federal statute enacted by congress to supply rules of construction for all legislation 1871 Attempts to define terms commonly used in federal statutes But there are some parts that have been updated to deal with current issues Federal courts have not found it binding on their ability to exercise full judicial review or disagree with those definitions 0 Also Texas has its own Code Construction Act which defines words and how to interpret them serves similar and other purposes B WHOLE ACT CANONS The whole act rule instructs courts to view statutory terms as a part of the entire legislation in which they were enacted There are several more concrete principles regarding whole act canons 1 Identical Words consistentidentical meaning 2 Avoiding Redundancy and Surplusage it is a cardinal principle of statutory construction that a statute ought upon the whole to be so construed that if it can be prevented no clause sentence or word shall be super uous void or insignificant Maxims that fall within the whole act canon 1 Title However title alone is not controlling Positive ex holy trinity invoked the title of the statute to support its conclusion 2 Provisos are clauses that state exceptions to or limitations on the application of a statute for example provided that While a proviso customarily applies to the clause immediately preceding it courts can apply it more broadly 12 C WHOLE CODE CANONS The whole code rule directs courts to construe language in one statute by looking to language in other statutes Like the whole act rule the whole code rule has more specific subrules 0 statutes addressing the same subject matter generally should be read as if they were one law Under this canon a later act can be 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 setting 0 Assumes that whenever Congress passes a new statute it acts aware of all preVious statutes on the same subject Inferences across statutes when congress uses the same language in two statutes haVing similar purposes particularly when one is enacted shortly after the other it is appropriate to presume that Congress intended the text to have the same meaning in both statutes Repeals by implication repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest What to look at when dealing with a statute dictionary common law definition technical meaning and judicial notice when the court under its own power acknowledges a fact that everybody already knows something Ejusdem Generis Noscitur a Sociis Expressio Unis or V and the last antecedent rule may V shall parenthetical punctuation whole act canon then the whole code rule largest entity in pari materia titles and provisos identical wordsidentical meaning avoiding surplusage MORE SUBSTANTIVE CANONS OF CONSTRUCTION most fundamental universally held of all the canons we ll study Whenever the language of the statute is ambiguous the court will rule in the defendant s favor Directs courts to resolve doubts or ambiguities in criminal statues in favor of criminal defendants The punishment is too severe to rely on ambiguous language There is nothing of greater punishment than to deprive you of your liberty How ambiguous does a statute need to be before the court invokes the rule of lenitV Generally a court will insist on a substantial ambiguity that it cannot resolve through traditional tools of statutory construction As we saw in Muscarello though justices can strongly disagree on how much ambiguity must exist in a statute before a defendant can successfully invoke the rule of lenity 13 0 United States v Santos gambling and money laundering case Court has to decide if the word proceeds in the case refers to gross income or net income profits Court holds that it refers to profits because of the rule of lenity because the statute was ambiguous in this regard they interpreted it in favor of the Defendant 0 Merger Problem EX You can commit crimes that can be prosecuted under several different statutes So a lesser offense may apply because higher offenses requires different elements to be proven Money laundering is not necessarily the same thing as gambling They are two offenses that might fall under this statute 0 Alito Dissent what does proceeds mean Looks at other statutes but they were after this one so it s not legislative history but he tries to look at what they were thinking However Alito is looking at state statutes to interpret a federal law 0 Absurd results doctrine he is looking at an outcome that could be cast in terms that the statute doesn t make sense unless you interpret it a certain way 0 If there is a split case 441 you go with the interpretation that is narrowest In Texas the legislature has told the courts not to apply the rule of lenity t0 penal statutes usually for civil statutes When the legislature passes a statute to address a specific ill then the courts will broadly interpret that statute to achieve the purpose of remedying that ill 0 Remedial legislation should be construed broadly to effectuate its purpose For a statute to be deemed remedial it must have been directed at remedying a prior problem 0 EX antidiscrimination statutes or reforms Once a court determines that a statute is remedial it then construes that statute broadly in order to effectuate its purposes 0 Remedial Purposes are usually treated dismissively because most statutes are in some way remedying a problem The Canon Of Constitutionality requires a court to avoid interpretations of statutes that render them unconstitutional or raise serious doubts about their constitutionality at least when other interpretations of the statute are permissible There are two primary formulations of the doctrine 1 Traditional Form narrower the doctrine provides as between two possible interpretations of a statute by one of which it would be unconstitutional and by the other valid the court s plain duty is to adopt the one which will save the act There must be ambiguity in the statute in the 1st place a This rule is a categorical one meaning that every reasonable construction must be resorted to in order to save a statute from unconstitutionality 14 b One of the interpretations has to be declared unconstitutional harder to prove This is the stronger Canon 2 Modern Variant the doctrine requires that a statute must be construed if fairly possible so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score Courts should avoid interpretations that raise a serious question as to the constitutionality of a statute a There just has to be enough unconstitutionality to bring up a red ag not be proven b Two elements required to invoke the constitutional avoidance canon 1 Some ambiguity in the language of the statute that creates multiple interpretations 2 One of those interpretations has to have serious constitutional problemsdoubts Zadvydas v Davis whether the statute authorizing detaining of a removable alien should be interpreted as being allowing indefinitely or only for a period reasonably necessary to secure the alien s removal Implicit reasonable time limitation 0 Constitutional Avoidance Canon used Where there are two interpretations one of which would raise serious constitutional problems the court should always choose the interpretation that does not ie only for a reasonable time because indefiniteness raises a 5th amendment concern 0 The court does not have to prove that the other option would definitely be unconstitutional only that it would raise grave doubts upon the issue 0 Ambiguity required there has to be more than one way to interpret the statute 0 Justice Breyer thinks 6 months is a reasonable period of time They use this same time period for other administrative purposes so 6 months is good for uniformity After 6 months the immigrant presents evidence that the US can rebut They re stuck there until they can present evidence The longer you sit in the cell the higher the government s burden is to prove that you should be there continuing threat 0 Dissent there is no ambiguity in the statute so the constitutional avoidance canon should not be applicable AlmendarezTorres v United States P was an alien who after being deported for the commission of an aggravated felony unlawfully returned to the US Just returning to the US would cause them to be imprisoned for not more than 2 years but returning with an aggravated felony would cause them to be imprisoned for not more than 20 years 15 0 Issue Does part of the same statute define a separate crime or simply authorize an enhanced penalty It was a penalty provision that allowed the court to increase the sentence for a recidivist who had committed an aggravated felony 0 What was the reasoning why justice breyer decided this was not a free standing crime but rather an enhanced penalty Legislative history and intent Focuses on the degree of certainty amount needed to trigger the constitutional avoidance doctrine is lacking Ambiguity here is not strong enough for cons avoidance 0 If this wasn t a penalty then it would be a separate crime that the US would have to prove Who decides The judge as opposed to a jury of your peers Justice Scalia s dissent focuses on the text He disagrees with justice breyer as to the canon of constitutional avoidance He thinks the issue of a jury trial is a constitutional issue raised 0 Rule of Lenity could apply this is a penal statute with 20 possible years imprisonment Where the statute is ambiguous they rule in favor of the defendant Breyer doesn t think the statute is ambiguous so he didn t mention it in his opinion FEDERALISM CLEAR STATEMENT RULE Under this rule the courts will not interpret a statute in a way that impinges on matters of core state sovereignty unless Congress has clearly and directly stated that it wishes to do so Protects federalism interests Courts will not implement language which would unduly unhinge on the sovereignty of the state unless it was clearly stated This is a legislative drafting principle Gregory v Ashcroft Two petitioners both Missouri state judges challenged the state constitution s retirement requirement 70 years old They claimed that it violated the ADEA act federal age discrimination in employment act 0 Issue Does the Missouri mandatory retirement requirement for state judges violate the federal age discrimination in employment act No 0 In Gregory the appointment of judges fell into the category of core state sovereign functions and the Court demanded that Congress expressly state that it meant for the Americans with Disabilities Act to apply to state judges Federalism clear statement rule 0 ADEA does not apply to policymaking appointees such as state court judges Governor Ashcroft looks at the plain language of the statute to determine the meaning The judges were appointed by the governor and then reelected but the 1st appointment is what matters 16 O Noscitur a Sociis looks to the language of the statute to determine that since exemptions 1 and 3 refer only to those in close working relationships with elected officials so too much 2 0 Court employed the rational basis test there is a reasonable relationship between Missouri s goal of promoting competent state judges and its retirement requirement 0 Justice O Connor said that Congress had to be clearer in their statements and acts if they were going to take away state s rights in this case ADEA was ambiguous They had to write their statutes in a clear way or the court would not interpret them the way they wanted drafting principle federalism 0 Whenever Congress intends to alter the federalstate balance it must do so expressly in the statute TYPES OF PREEMPTION Presumption against Preemption the presumption rests on the notion that the historic police powers of the states are not to be superseded unless that was the clear and manifest 21119086 Of COIlgI39GSS 0 The presumption against preemption provides assurance that the federalstate balance will not be disturbed unintentionally by congress of unnecessarily by the courts 0 The presumption against preemption states a default as to how a statue should be construed Ie so as not to preempt state law that can be overcome based on clear language or other strong evidence that Congress intended otherwise 1 When a federal statute contains an express preemption provision courts can construe the provision narrowly to preempt some state laws but not others If congress speaks clearly then they can preempt a state statute but language has to be clear Where language is ambiguous courts interpret it narrowly 2 And when it does not a statute operates retroactively if the new provision attaches new legal consequences to events completed before its enactment The court has found that Congress has authorized retroactive effect only when the statutory language is so clear that it could sustain only one interpretation 0 The court has treated the presumption against retroactivity as an exception to the general principle that a court should apply the law in effect at the time of its decision 17 0 Ex we are going to impose a fine on anyone who conducted the act before the statute was enacted If it did do damage and that damage continues to the date of enaction then they are fined Can congress legislate penalties on ongoing effects of previous damages This is murkier 0 Why do we need this maxim Doesn t the constitution prohibit ex post facto laws Yes but the court has claimed that ex post facto ONLY applies to criminal activities not civil proceedings However congress must still be express 0 What about remedial purposes canon Usually loses against preemption the court has held that numerous statutes do not apply outside the territorial boundaries of the US It operates like the clear statement rule essentially requiring Congress to make clear its intention for a particular statute to have effect beyond the territorial borders of the US 0 Ex they pass a statute against bribing public officials which is applied with vigor in the US It became the norm for US corporations to bribe officials of other nations for certain rights Can they apply the US statute to the foreign officials Not it it s just a general antibribery statute It needs to be more clear and precise If Congress wanted the statute to apply to foreign powers then they should have particularly stated their intention Unless congress is express the statute will not be given international sweep Two interpretive principles 1 Scrivener s Errors directs courts to correct legislative drafting mistakes or socalled scrivener s errors Courts will correct these to effectuate what congress really meant to say or what otherwise makes sense of the statute A slip of the pen mechanical error a US v Locke act required land owners to file a claim on intention to hold the land each year prior to December 18 The appellees filed their notice ON December 31 not prior i Can the statute be interpreted as allowing a Dec 31St filing No harsh result This is not a scrivener s errors case example 2 directs courts to avoid statutory interpretations that provide absurd results Courts apply this principle on the assumption that congress intends statutes to have sensible effects or that statutes should have sensible effects as a normative matter a An agency cannot invoke the doctrine to remedy absurdities of the agency s own making When it is applied it requires the courts to select the alternative statutory construction that does the least violence to congress s enacted text 18 b The absurd results doctrine applies only when the absurdity in question is the product of a statute s unambiguous direction When an interpretation of an ambiguous text produces absurd results then the court could simply go with the other interpretation c Coalition for Responsibility Regulation of Industry v EPA circuit upheld doctrine of absurd results Permitting a statute to be read to avoid absurd results allows an agency to establish that seemingly clear statutory language does not express the unambiguously expressed intent of Congress However the doctrine of absurd results does not grant the agency a license to rewrite the statute INTENT AND PURPOSE BASED TOOLS HIERARACHY OF LEGISLATIVE HISTORY Parol Evidence Rule when the document is clear or unambiguous then you stick to the text and do not use prior drafts Compare parol evidence rule with our ability to use legislative history Is legislative history a supplemental tool Some judges believe legislative history use is inappropriate all you need is the text But some judges believe it can give us legislative purpose What does it mean to say that a body with over 600 individuals has intent It is a large group that probably disagrees So how do you determine what to give weight to There is a hierarchy of legislative history Different pieces of legislative history have different weights relative to one another These are the relative weight of the pieces on which courts most often rely 1 Committee Reports occupy the highest position in the hierarchy of legislative history Written by those who are charged with responsibility of the bill and who are best informed about that bill They circulate the bill to the whole chamber and are read by legislative staff and member of congress 0 But are not always reliable because they are not subject to a vote by a full chamber of congress and cannot be amended so they do not re ect disagreements o The best committee report is the Conference Committee because it is the final stage the step after it becomes a law Both houses are on the conference committee so it s a larger group that should give you a more accurate view Are not as helpful because they only talk about what they disagree about Usually trumps the house and senate committee report 2 Author or Sponsor Statements reliable indication of legislative intent because it s prepared by an individual knowledgeable about the bill Still is only one voice rather than the view of the whole chamber 19 3 Member Statements remarks of other members of congress may contain relevant information Losing side statement usually does not have much weight 4 Hearing Records committees that draft and debate bills in both the house and senate frequently hold hearings on the bills The record may include oral testimony written submissions of the report as well as comments and questions from the members themselves But they are attended by just committee member not the entire congress 5 Other Legislative Statements legislative history of other statutes both from the past and future might serve as guides to the meaning of a word provision or the purpose of a statute particularly if written close in time and treat the same subject 6 Presidential and Agency Statements president signed the bill into law so is presumed to have read the bill In addition the president may have participated in the drafting of the legislation and was advised as to the content of the bill 0 Why is he at the bottom He s an entirely separate branch and isn t a part of congress He s a necessary participant in passing a law but doesn t speak to congressional intent Judicial Reliance on Legislative History Cases Moore v Harris M Moore sought black lung benefits under a safety act The secretary of health denied his request because he had not been employed at the mine for 10 years only 7 However he had been selfemployed at his own mine which when combined put him over the 10 year mark requirement Whether the statutory language allows the court to combine the time Moore spent in the mines total Yes 0 Miner is an individual who was or is employed in a coal mine Argument that Congress didn t intend there to be a clear distinction between selfemployment and being an employee What were the sources that the court looked to in this case Statutorv purpose the statute itself should say what its purpose is Legislative Historv alternated between worked in and employed in in the senate committee report document Looked at author statements and member statements They used multiple sources to interpret the case This happened in 1972 but in 1978 the bill was amended and they changed the definition of miner Under the new definition it showed the intent of excluding selfemployed miners o What does it mean when congress overrules what you said was the legal principle It probably means Congress thought the interpretation of the regulation was wrong 20 o What did the court say about the overruling That the benefits were made clear for all miners and that the statute was originally misinterpreted Congress misspoke when using the words interchangeably Montana Wilderness Association v US Forest Service Facts Burlington wanted to build a road across national forest land and US forest service granted them a permit Burlington had a property right to an area in the middle of the national forest and they wanted access to it landlocked 0 The act in Alaska essentially protects this land but if you build a road on it you lose the ability to protect that land Does the federal statute apply to just Alaska or the entire US The court determines the provisions apply only to Alaska 0 In pari materia if the two provisions are side by side they re meant to have the same effect Use of the words is meant to have a consistent meaning National forest 0 Second Decision for the same case Court basically ended up reversing its decision and withdrew it Why 180 degree turn around Subsequent act passed in the same congress and did not contain national access language So they thought it should apply nationally TOOLS FOR CHANGED CIRCUMSTANCES DYNAMIC INTERPRETATION Whenever a statute or law is it must be allowed to evolve as the courts change in economic knowledge and circumstances change It is whenever parts of the legislation are open to interpretation it is a exible standard that is not based on strict Textualism but able to change based on current court interpretation Dynamic interpretation is also founded on the idea that the original legislative expectations should not always control statutory meaning This is especially true when the statute is old and generally phrased and the societal or legal context of the statute has changed in material ways Archaeological v Nautical Interpretation 0 Archaeological the meaning of a statute is set in stone on the date of its enactment and it is the interpreter s task to uncover and reconstruct that original meaning 0 Nautical understands a statute as an ongoing process Willingness to test the mores of today Nonoriginalism Operating within the statute and interpreting it Interpreters are creators of meaning 0 Nautical interpretation is still textbased Bob Jones University v US famous illustration of how courts will look to how history and modern conditions have changed School had discriminatory practices so the IRS did not give 21 them taxexempt status An overtly racist institution is also a university so are they entitled to tax exemption No Background 501c3 exempts institutions from taxes and IRS code sec 170 allows persons to deduct certain charitable contributions 501 does not include the word charity or mention public policy 0 These institutions did not meet the requirement by providing quotbeneficial and stabilizing in uences in community lifequot to be supported by taxpayers with a special tax status The schools could not meet this requirement due to their discriminatory policies The Court declared that racial discrimination in education violated a quotfundamental national public policyquot 0 The government may justify a limitation on religious liberties by showing it is necessary to accomplish an quotoverriding governmental interestquot Prohibiting racial discrimination was such a governmental interest Hence the Court found that quotnot all burdens on religion are unconstitutionalquot 0 Agency deference present IRS was given the power to change their regulation and update and adapt them to historical circumstance Tools that Justice Burger used to prove that the University should not be taxexempt 9 6 0 Plain Language prevention of cruelty to children no attempting to in uence legislation 0 Congressional Purpose 0 In pari materi 170 parallels 501 Charitable contributions is not a blank slate or a neutral term Common Law Concept of charitable contribution harkens back to charitable institutions which was not dealing with tax law but rather trusts Congress intentionally used a dynamic term not meant to be fixed at one time but to grow with the times Charitable also means it benefits society at large and serves a desirable public purpose 0 What the other branches are doing in regards to this issue there was broad consensus among the federal branches Numerous executive orders and fundamental policy of eliminating racial discrimination 0 Common law 9 dynamic language Why not let congress fix it by changing the statute 0 Burger said Congress failure to act indicated support for the IRS interpretationchange Congressional Inaction acquiesces with the IRS rulings Also bills to overturn the IRS 22 interpretation never got past committee Congress chose not to overrule the IRS determination Social Clubs congress will not grant tax exempt status to others that are discriminatory golf clubs Country clubs Determined that we should not use tax benefits to support racism Exclusio Unis congress could have included other organizations as well universities but didn t They meant what they didn t say Since universities were not explicitly excluded maybe Bob Jones should have been tax exempt Rehnquist Dissent they should be tax exempt he was concerned with the court legislating rather than interpreting Congress could have narrowed the exclusions like they did with social clubs but chose not to The court should not tweak what Congress says Leegin Creative Leather Products v PSKS Facts Leegin entered into vertical price fixing with their retailers requiring them to charge no less than certain minimum prices for their products PSKS sold the products at a discount and was dropped as a retailer suffering losses PSKS argued from precedent mandatory minimum price agreements are per se illegal the action without consideration for circumstance is illegal Leegin argued for the only combinations and contracts unreasonably restraining trade are subject to actions under the antitrust laws Possession of monopoly power is not in itself illegal Under the rule of reason the circumstances in which the action was committed must be considered Price minimums would be held illegal only where they are shown to be anticompetitive case by case basis HELD Court determined that precedent should be overruled and vertical price minimums are to be judged by the rule of reason 0 Justice Kennedy focused on two things 1 the Sherman act is different because it s a def above Parts of legislation are left open 2 To what extent the act allows per se action case by case interpretation is better AGENCIES What provisions of the US Constitution discuss the control or administration of federal department or agencies Article 11 presidential executive powers Vests the power to execute the instructions of Congress which has the exclusive power to make laws The Necessarv and Proper Clause Article 1 Sec 8 Cl 18 The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into 23 Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof What is an Agency A unit of government created by statute Owes its existence form and power to legislation Federal agencies are established through federal legislation but there can also be state agencies Agencies are not described in the constitution Mentions executive departments which suggests they are under the president s control Agencies are not unconstitutional simply because they are extraconstitutional Ex Department of Defense the Department of Homeland Security FEMA What federal agency was not created by statute The EPA was created by an executive order Nixon Agencies can also include courts Under a strict reading the EPA is not an agency because it was not created by statute What are the benefits of agencies 0 Expertise seen as having expertise for solving the complex problems that confront modern society 0 Fairness and Rationality guidance material judicial review and administrative procedure 0 Interest Representation can enhance legitimacy through the legislative process 0 Political Accountability agencies can be seen as being accountable to the people indirectly because the president monitors their actions 0 Efficacy and Flexibility capacity to respond quickly to changing circumstances 0 Coordination coordinating policies with other agencies across government 0 Efficiency regulations What does an agency do sphere of power Everything from education to regulations There are probably 10 times as many regulations as there are laws Scope of activities are enormous Ex issue guidance investing making decisions that can affect the economy usually agencies have to step in and deal with problems first before congress will speak to the issue the way agencies open the door for making the rules it is a predictable process for issuing regulations Anybody can comment on a rule that s been published in the federal registry You don t need standing you just have to be capable of writing a comment The agency will respond to substantive comments Actions of agencies can be reviewed by federal courts under a substantive standard arbitrary and capricious review the 24 agency can get it wrong but the court will not overturn the decision unless its sooo wrong The courts looks at comments and the record don t call witnesses Process 1 Agency issues a notice of proposed rulemaking which contains one or more proposed rules and is published in the federal register 2 Provide a reasonable time for interested parties to submit written comments on the proposed rule Meant to replace an oral trialtype hearing with a written one 3 Agency completes the noticeandcomment rulemaking process by issuing a nal rule The statement of basis and purpose must at a minimum set forth the rationale and legal authority for the rule If you have a particular statute usually congress can have its own specific review standard for that statute written into the provision Who calls the shots Organizations like agencies are usually not simple and have many layers of management Depends on what type of agency it is ExecutiveBranch or Independent Agencies 0 Executive Branch Agencies appear under the president in the governmental organizational chart and are run by officials who can be fired at will by the President EX FEMA EPA Dept of the interior Dept of Health 0 Independent Agencies are different because their heads can be several serve fixed terms that expire in staggered years and are removable by the president only for cause or good cause They are independent in the sense that their heads are not subject to plenary presidential removal Also they are generally run by multimember commissions or boards rather than a single administrator EX SEC FCC Federal Reserve 0 Why would you want an independent agency More immune from political pressure 0 The Constitutionality of Independent Agencies independent agencies cannot be plausibly located in either the legislative or judicial branch because they are more like the executive branch The problem is that the leaders are not removable by the president at will which led them to be called the headless fourth branch of our government Separation of powers issue Agencies have both 39 Civil Service Members hired through a nonpolitical process More than 2 million so they greatly outnumber political appointees and outlast them 25 I Political Appointees constitution requires some highlevel officials to be appointed by the President and confirmed by the senate They occupy the top rung of leadership and management within an agency and can dramatically shape the direction of the agency Serve at the pleasure of the executive branch Free Enterprise Fund v Public Company Accounting Oversight Board P brought suit alleging that the creation of the board violated the appointments clause because it derived the President from exercising adequate control over the board President could not directly fire board members and SEC could only fire the board members forcause o congress could create the agency but the executive could not control or regulate it Contradicts article II s vesting of the executive power in the president Congress is taking power from Executive and giving it to an agency neither of them have control of 0 Court rules this was an over delegation of power by Congress to the agency SC struck down an act of congress 0 Takeaway focus on who calls the shots in an agency and the limits on congress ability to insulate and protect the individuals who make those calls DELEGATION Can you have a contract that is too vague to be enforced Ex anyone who restrains trade shall be liable for triple the damages caused by their conduct Is this enough Sometimes legislatures purposefully make broad rulesstatutes and rely on agencies to interpret them according to the situation Could a court hear a case relying only on this statute Yes it s powerful to whoever can enforce it Who can enforce it FTC federal trade commission DOJ department of justice Basically By leaving it broad and open the legislature is delegating interpretation to whoever gets the case What would lead congress to be specific or vague in some cases 0 Perhaps don t have the knowledge time or resources to be specific Ignorance of the topic 0 Claim benefit and not the cost political selfinterest creating loop holes 0 Distrust or shared delegation CONS 2 When Congress foregoes specificity the result is a delegation of authority but not every delegation is explicit in the statute What s the cost of letting congress pass the ball Possible lack of accountability vagueness used more often as a legislative tool is undemocratic The constitutional argument against delegation is that Congress is vested with legislative power and cannot delegate that power to other institutions 26 is the principle that the Congress of the United States being vested with quotall legislative powersquot by Article One Section 1 of the United States Constitution cannot delegate that power to anyone else there is a rule against laws that are too vague Gives limits as to how far congress can go in not being specific 0 However the Supreme Court has ruled that Congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an quotintelligible principlequot to guide the executive branch An is language in an operative provision of a statute that provides the agency some guidance on its mission 0 As between specificity and delegation Congress frequentlv chooses delegation The Court has gone out of its way to uphold broad delegating statutes as long as they contain an intelligible principle to constrain the agency The Rule of Law Rationale a system of objective and accessible commands law which can be seen to ow from collective agreement rather than from the exercise of discretion or preference by those persons who happen to be in the positions of authority The rule of law requires the government to exercise its power in accordance with wellestablished and clearly written rules regulations and legal principles Conditions where Congress will likelv Drovide a greater degree of delegation to an executive agency controversial areas when there s more trust of delegating to others more complex and detailed it is the more willing congress is to let agencies run it if the agency has more time and resources to commit to a certain problem requires a lot of technical expertise to understand it TOOLS OF STATUTORY IMPLEMENTATION STEPS FOR RULE MAKING Semi Annual Index purgatory where the rule sits before it actually gets passed ANPR announced notice of proposed rule making NPR notice of proposed rulemaking where the lawyer jumps in for the client and where the agency takes comments if you don t comment in the time frame you lose your vote Data Availability library where you can go look at the documents 27 SNPR supplemental notice of proposed rulemaking Gives fair notice of changes before publishing Final Where the record is set Texas also has administrative procedure With the same elements One major difference Contested Case Hearing Where you can request a court proceeding if you want to fight a certain rule or decision NHTSA example gov wanted car companies to improve gas mileage Retroactivity deprived the law of its statutory intent How do agencies interpret statutes Factors that agencies consider 0 Statutory the agency considers the authority that the statute grants and the instructions that it provides to determine What actions are required and permitted it often interprets the language of its statute before applying that language just as courts do 0 Scientific it examines the scientific data that the problem requires it examines the existing and potential technology for responding to risks 0 Economic it assesses the costs in relation to the benefits of different alternatives 0 Political considers other important aspects of the problem like public attitudes and political preferences federal regulation especially burdens on the domestic auto industry Note that all agencies do not perform all of these analyses for every regulation Note that agencies must find a way to these tools When making a decision Regulations re ect all things considered judgments not a series of isolated considerations o l Jurisdiction does this statute authorize this agency to reach a particular subject 0 Even if an agency has jurisdiction over a particular subject it may only regulate that subject in the manner the statute permits 2 An agency may not rely on prohibited or irrelevant statutory factors and it must consider mandatory or relevant statutory factors Chevron USA Inc v Natural Resources Defense Council Inc landmark case that advocated giving agencies deference for their reasonable policymaking decisions 28 0 Background Any major facility emits air pollutants in multiple places and ways How do you control the safety of these emissions Clean Air Act required each area to have its own permits old school New school didn t view it as a bunch of emitters but as one big one which only needed one permit the bubble You had exibility to lower and raise each emitter as long as you didn t raise the collective level of pollution This was a radical departure from the way the clean air act had been understood before EPA allowed bubbling in this case 0 SC looked to statutory language ambiguousabsent congressional intent silent legislative history exibility of the legislation and policy considerations which they said were for congress not courts Why congress was ambiguous does not matter all that matters is that power and authority was delegated to the agency 0 question whether congress has directly spoken to the precise question at issue EPA s authority to treat all pollutionemitting devices within the same industry grouping as though within a single bubble based on the construction of the statutory term stationary source If it s clear then that s the end of the matter 0 But if congress has not directly addressed the question the court does not simply impose its own construction on the statute as would be necessary in the absence of an administrative interpretation Deference to agencies where congress is silent or ambiguous even where the court disagrees O The question for the court is whether the agency s answer is based on a Dermissible constructi of the statute 0 Implicitly or explicitly delegate by Congress if congress has explicitly left a gap for the agency to fill there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation Where it is implicit a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency 0 If an agency has adopted a regulation based on an interpretation of a statute under step two of the chevron analysis a federal court will overturn that interpretation if congress improperly delegated legislative powers under article I by allowing agency to implement the statute without an intelligible principle or if agency s regulation is arbitrary capricious or manifestly contrary to the purpose PSD prevention of significant deterioration where the air is clean and they re trying to keep it that way or NSR new source review use where the air is already dirty NSR requirements are more stringent Assumptions with the chevron test what if an agency has to interpret a constitutional requirement if it s part of a regulatory framework is there any deference given by the court 29 0 No The court would say that constitutional issues are their call and congress cannot give that power to agencies Does it have to be a regulationrule What about a circular or pamphlet would a court give informal lower tier deference 0 Court would defer only based on how much it looks like a regulation MEAD AGENCIES AND ECONOMICS The way a rule is conceived and grows inside the confines of the agency how the agency thinks Agencies anticipate how others will respond Tools Agencies Rely on Economic Political and Scientific 0 Most important fundamental tool is the This is a decision procedure not a moral standard It is a way of producing a full accounting has spurred governmental attention in serious problems and has led to regulations that accomplish statutory goals at lower costs or that do not devote limited private and public resources to areas where they are unlikely to do much good What effect does this have on human life Do the number of lives saved justify the costs 0 CBA Looks at the overall societal benefit of a rule measure the statistical difference between benefits and costs of a project Costs to the community of projects to establish whether they are worthwhile It is the regulatory engine CBA is the dominant paradigm that agencies use to determine economic outcome of rules 0 Time is a factor Must discount the money you get now by what in ation will be in the future Money is worth more now than it is 10 years from now What type of rule is most likely to be effected disfavorly skewed by a high discount rate A rule that takes immediate effect rules with uncertainty that are hard to give a number to hard to see the benefits of environmental regulations how much is clean air worth a rule where you have to place a monetary value on something that has a moral component 0 It is not required for an agency to consider willingness to pay methodology to determine the value of a lost human life OMB A4 what agencies have to look at when they are devising a rule and have to justify its existence Still have to list things that are separate list This analysis document should discuss the expected benefits and costs of the selected regulatory option and any reasonable alternatives 0 Ex Noah Act 30 0 Schedule 1 costs federal funding and cost for the scientific research and devices implementation costs permits and licensing agency costs field tests what happens when you let the reintroduced animals back into the ecosystem 0 Schedule 2 benefits estimated benefits in advances in technology and creation value of the animals 0 Schedule 3 moral issues AGENCIES AND SCIENTIFIC ANALYSIS Scientific methodsystematic approach observable and testable controlled experiments then falsifiable possible to be disproven Expecting to see transparency and peer review Scientific tools that agencies use 1 Risk Assessment process for calculating probability and magnitude of negative effects Ex crash test Simply says what the risk is and what do we need to know about it Ex public health and toxicology How it operatesbyproducts Risk Management decision to take or withhold action This is more policy and judgment based on the research done in the risk assessment Cost on society a Risk assessment and risk management is a twostep process which carries different values b Where are the aws in risk When there s uncertainty problem can t be defined or scientific analysis is imprecise or can change in the future there isn t a single answer or ignorance it might be there but we don t have all the data right now 2 Toxicology rat testing biological hazard of a particular chemical or compound Study of poisons but isn t positively accurate because they can t test on humans and there can be intervening causes There are extrapolation issues 3 Epidemiology looks at exposure in the field and then extrapolates from the exposure where the effects are coming from Trying to find correlation that is a reliable link Fundamental issues just because two things are close doesn t mean one thing caused the other But it is a strong clue 4 Statistical Analysis fastest growing tool big data A way to determine causal relationships between two subsets within data Potential way to solve problems 1 Precautionary Approach playing it saferather safe than sorry If the toxicology is questionable then take the bottom the number you know will be protected The blow 31 back from this approach is that it can be really expensive or some things don t have solid data so you can t implement the policy Safety factors can be wildly unrealistic and you end up chasing phantom risks a Ex children eating lead tainted soil 24 hours a day unrealistic test which leads to overprotection They know there s a risk but it s fuzzy and there s a range so they pick the low end b Review Question Ex of agency s application of a precautionary approach when generating scientific information in a risk assessment the agency stacks risks by assuming the most conservative risk level for each step of a course of action so that the resulting overall risk of exposure is set at an extremely low level 2 Open Ended Science if you re trying to be precautionary you can end up with rule making proceedings that can last a long time 3 Shifting Standard Science if something takes a long time then the agency can constantly change and build the science The hamster wheel never stops air condition and changes in Houston 4 Political Science selectively using science to support a political goal Usually does not contain the hall marks of falsifiability or peer review Can Congress come in and tell agencies they have to use a specific scientific approach 0 Nuclear Waste Act EPA had to do an assessment of the risk in where to put the waste EPA said 10000 years is enough use this number a lot because the models they used weren t certain Other agency said it had to be a million years congress tried to tell the EPA how to use the science Congress can put their hands on the process 0 What did the DC Circuit say in response to EPA s decision Rejected EPA s choice because congress can tell an agency how to get and account for the information and opinion of the other agency Court deemed that EPA failed to give due weight to the other conclusion by the National Academy of Science that was required by congress What did Obama s 2009 memorandum on scientific integrity 1 Use scientific information in policy decisions subject to well established scientific processes including peer review where appropriate 2 Unless otherwise restricted make scientific findings available to the public The Scientific Charade Involves Agency Scientists scientists fail to draw the line between science and policy either inadvertently or deliberately 32 0 Unintentional Charade agencies set a single quantitative standard usually they continue indefinitely to look to science to resolve the transscientific questions Endless search for nonexistent scientific answers Where bureaucrats inadvertently characterize the standardsetting task as a problem for science 0 Intentional Charade agency bureaucrats consciously disguise policy choices as science Typically occurs only after agency scientists have begun developing a standard Involves agency political appointees or officials within the white house 0 Premeditated Charade final agency approach to standard setting is to make a specific policy choice whether it is proindustry or favors overprotection of public health and the environment and to introduce science only after the fact in order to scientifically justify the predetermined standard AGENCIES AND POLITICAL ANALYSIS Public attitudes distributional effects and political preferences all fall into this category Agencies consider how the public will react to a regulation and whom a regulation is likely to effect Fairness Concerns Preferences of current officials are considered like the president and congress Scientific or economic grounds for a decision are much more likely to be upheld than political reasons Try to leave political reasons out of the carving of the regulation and have people bring them up later so you can turn them down 1 Formal Adjudication making a rule by trial contested proceeding Parties have a right to present their position by oral or documentary evidence Expert testimony may be used Rules of evidence do not apply but can be used as a guideline You can appeal within the agency to the head of the agency or an intermediate appeals board 0 In a formal adiudication to implement a statute an agency 1 must allow a party to crossexamine witnesses as required for a full and true disclosure of facts 2 typically will provide an administrative law judge to preside over an initial hearing and 3 must provide a statement of findings and conclusions along with the reason for the decision 0 Some consider formal adjudication as inferior to noticeandcomment rule making because it is routinely retroactive applying the new rule to the parties in the case and has fewer opportunities for public participation The agency still decides in 33 noticeandcomment they don t have to follow recommendations Adjudicatory action binds the agency But With adjudication you can present your case and reasoning before an impartial judge and not have to deal With delay tactics 0 Ex Boston Medical Center Formal Adjudication looks at precedent legislative history intention of the act plain meaning of the statute reasons Why the students should be considered employees additional statute support def of employee current trend and canon of retroactivity 2 Look to page 23 for notice and comment Where most of the action is todav Less formal than adjudication or noticeand comment rulemaking 0 Interpretive rules statements of policy and rules of agency organization procedure or practice are generally referred to as forms of guidance They are expressly exempt from the requirements of noticeandcomment rule making An agency may use such documents to indicate how it Will implement a particular statutory or regulatory regime 0 This is Where agencies enforce penalize and interpret their regulations Ex enforcement handbooks and manuals 0 The guidance typically cannot be subjected to judicial review under the Administrative procedure act 0 The agency may choose to open the guidance to public notice in the federal register 0 That guidance may be judicially reversed if it imposes substantive obligations Without proper notice and comment 0 The agency may explicitly state that the guidance does not bind the agency or any related entity Many guidance documents like the ones issued by the EPA have claimed that they are not binding on regulated entities and disclaims any legal effects and reserves an agency s discretion to deviate from guidance terms So people that don t like it can t sue Why would an agency prefer using guidance documents to noticeandcomment procedure 0 Flexibility to change the guidance inexpensively and quickly 0 Hope to forestall expensive litigation over the policy s validity 0 Less likely to be subject to congressional oversight or attention in the media 34 0 Compliance for less agency can obtain a rulelike effect while minimizing political oversight and avoiding procedural discipline public participation and judicial accountability 0 Neg the agency will not receive useful information from previously unknown sources and its decision will not be subjected to the discipline of having to respond to comments received 0 Neg guidance documents receive very limited review from congress and the white house When Guidance goes too far Suppose a guidance is written that imposes substantive things people have to comply with This can become a rule whether they call it a rule or not Then people can sue When agencies try to put esh on the bones of guidance they can go too far and imply a rule without complying with procedural rule making Suppose there is a guidance with references to existing laws and what to do with them is it a regulation or a law Usually a guidance can refer to existing laws and how to implement them in fact that s a primary purpose for most guidances The courts will strike down a guidance as an impermissible attempt at backdoor regulation however if the guidance specifies and fixes legal obligations and rights in the same fashion as a regulation If an agency goes too far with its guidance the court will usually deem it an attempt to promulgate a regulation without proper noticeandcomment rulemaking and it will remand the guidance to the agency for further development or clarification OUTSIDE CONTROL OF AGENCY ACTION PRESIDENTIAL The President shall take care that the laws be faithfully executed ie The President asserts control of agency action as he or she deems necessary to ensure that such action is consistent with overall government priorities and popular preferences Art 111 sec 3 cl 3 What are the effects of presidential control 0 May enhance the accountability of agency action 0 Voters can hold the president responsible for agency actions that they dislike 0 Presidential control may improve efficacy of agency action President can coordinate the actions of agencies across the government avoiding redundant or con icting regulations 35 The president may improve efficiency of agency action Can spur sluggish agencies into action or require agencies to consider factors that they may have neglected to misapplied including costs and benefits of proposed regulations Neg if the president seeks to in uence agency action in a way that contravenes scientific finding or statutory consideration It can decrease the expertise and even the legality of the agency action When the President seeks control of agency action he can make a request that an agency voluntarily take a particular action through informal nonpublic means or can take the formal visible and effective step of I replacing agency officials with individuals more amenable to administration views or I withhold funding until the agency changes course The president could also I set up an entire process for requiring agencies to submit their proposed regulations to the white house for review under specific principles TOOLS of the President 1 2 3 Control of Agency Personnel hiring and firing authority power to appoint and fire heads of agencies If the president first appoints people that coincide with his views then he won t need to get rid of them later To remove such leaders draws considerable attention and creates the need for a replacement acceptable to senate Control of Appropriations budgeting process to control agency funding The president can recommend budget cuts for agencies that fail to follow administration preferences or budget increase for those who comply Line item veto was deemed unconstitutional though in Clinton v City of New York Regulatory Planning and Review under executive order 12866 0 Federal agencies should promulgate regulations that are necessary as required by law to interpret the law or by compelling public need Costs and benefits will be provided in both quantitative and qualitative forms In choosing among alternative regulatory approaches agencies should select those that maximize net benefit look at scientific technical or economic decisions Avoid regulations inconsistent incompatible or duplicative with its other regulations 0 Each agency has to submit to OIRA a program consistent with its resources and regulatory priorities under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency s regulatory program more effective in achieving regulatory objectives 0 Which of the following agencies must participate in the regulatory planning process under executive order 12866 36 i US environmental protection agency the Federal Reserve board and the US department of health and human services ii The review process is just the US EPA and dept of Health and Human Services 0 Executive Order 12866 does NOT apply to a regulatory action that is not major as defined by EO 12866 or any rule pertaining to military or foreign affair functions of the US Prompt v Return To communicate preference in response to information learned about planned or proposed regulations OIRA can issue return letters and prompt letters Return letters remit proposed regulations to the agency that produced them for reconsideration providing an explanation of the deficiencies and suggestions for further development Prompt letters address an agency s plans or priorities for a given year 4 Presidential Directive can assert control of agency action by issuing preregulatory directives in the form of official memorandum to executive branch agency heads This instructs an agency to take a particular action under its existing regulatory authority They are different than prompt letters because they are signed by the president Presidential Directive typically orders agencies to instigate work that they otherwise would not have begun For example President Obama in 2013 directed several federal agencies to take specific steps to address climate change but most of those steps led to future regulatory action rather than an immediate and direct change in any particular agency s rules OUTSIDE CONTROL OF AGENCY ACTION CONGRESSIONAL Congress agreed to give the power away to the agency in the first place but still seeks control over the agency The impulse to delegate does not negate the impulse to control What can Congress do to control agencies 1 New Legislation congress can enact new legislation Which might abolish an agency or restrict its authority they can pass new legislation to restrict or bar agency s future actions 0 Congress can assert control of agency action by simply threatening to restrict an agency s authority or reverse an agency s rule 2 Appropriations enables congress to assert continuous control of agency action by restricting or cutting their money Can withhold funding for specific agency activity in an appropriations bill 37 3 4 5 6 0 Has caused immeasurable mischief anti deficiency act can t precommit the government to spend money prohibits an agency from incurring contractual commitments beyond the current fiscal year Appropriations bills do more than just give money they can also give congress a platform to exercise extreme control Language counts language can express the desire of the committee while not giving a specific amount Oversight Hearings congress can use oversight hearings to uncover facts in aid of further legislative activity Can function as an information tool Can hold the agency officials accountable Used to investigate agency implementation of a statutory program 0 However the oversights even if well intentioned divert agency resources from their intended purposes Fire Alarms tools that position constituents to monitor agency action and alert congress when legislative intervention is necessary Tool for this Notice and Comment if the agency is doing something really stupid then people send up a are FOIA freedom of information act open to everyone Information that an agency has shall be made available upon request subject to some restrictions Citizen Suits statutory vehicle which allows a private citizen to bring an actionlaw suit as if they were the US gov It authorize any person to seek judicial review of agency action In these ways citizen suit provisions shift monitoring costs to citizens and to the courts a Congress can create a new cause of action to allow persons injured by an agency s actions to sue that agency for failure to comply with mandatory statutory duties citizen suits What are the limits How far can Congress go Tools that Congress cannot use todav Negative Form of Legislative Veto is unconstitutional the negative form has the effect of reversing an agency decision whereas the positive veto requires an agency to obtain legislative approval before a decision becomes effective Bowsher v Synar dealt with separation of powers in regards to control of the comptroller general position Whether congress had complete control to fire the comptroller whenever his job fell within executive parameters even though he was not technically a part of the executive branch Court ruled congress could not dictate how executive operated by having power over the comptroller general even though he fell under the legislative branch Main point it doesn t matter what you call it or who created it but it matters what job they do and what duties they have 38 0 TakeAway congress actions were unconstitutional because it imposed upon the executive branch and violated the separation of powers 0 Ended up overturning the Balanced Budget and Emergency Deficit Control Act of 1985 GrammRudmanHollings Is there a way to revise the act so as not to violate the separation of powers Reassign the comptroller to fall solely within one branch separation of powers is not unsurmountable 0 How did these guys have standing to overturn the budget act Article 3 act for standing requires both independent and executive branch agencies to submit major rules as well as other information including any costbenefit analysis of the rule to congress and the general accounting office before the rule may take effect Essentially takes new laws and makes it easier for congress to pass a law 0 All congress has to do is pass a joint resolution disapproving the new regulation Bypasses filibuster and is on an expedited process Congress can have a resolution passed with as little as 30 senators and put on the calendar Still has to be signed by the president Has only been invoked 1 time 0 A joint resolution can revoke an agency action upon passage in both chambers of congress and approval by president or veto override 0 A joint resolution is not subjected to the traditional rules of cloture in case of filibuster in the Senate The REINS Act being introduced this session A congressional review act on steroids Flips the presumption any major rule that impacts over 100 million dollars will not take effect until congress expressly approves it through joint resolution If congress does not endorse it then the rule dies 0 One big problem who has to sign it once congress passes it The president OUTSIDE CONTROL OF AGENCY ACTION J UDICIARY If the court finds the agency has overstepped what are its options 0 Strike down the rule 0 Remand the rule for modification 0 Can enjoin the activity that s taking place under the current rule 0 Court can dictate regulatory action but it is a fairly limited power considered in light of what congress can do 39 Everything depends on the administrative procedure act 701 702 704 However not only the APA will apply There are usually different standards of review and administrative procedures located in other statutes So look at all of them Four Gateways to getting into court judicial review Bars courts from hearing cases at the behest of certain plaintiffs Limits which plaintiffs can challenge agency action Limits the opportunity for judicial review Generally a private plaintiff alleging a procedural injury has to demonstrate their specific or individual standing to seek judicial review in federal court a Injury in Fact has to be particularized and concrete not conjectural or hypothetical b Actual and imminent causation fairly traceable to the action of the D c Redressability it must be likely that this injury will be redressed by a favorable decision How does this apply when you re dealing with a regulatory issue eX agency failed to comply with law Massachusetts v EPA US SC 2007 whether Mass has standing to sue the EPA for not enforcing the clean air act Mass wants to sue to make EPA take action 0 Court rules yes for Massachusetts s standing because of the state s sovereign interests Also its special role under the Clean Air Act as a state merited special solicitude from the federal courts However the court did not find that the private land owners had standing to pursue their claims against EPA O The supreme court held that a litigant with a procedural right such as Massachusetts has standing if there is some possibility that the requested relief will prompt the agency to reconsider its decision 0 1 Injury danger due to the possible issue of global warming losing coastal land States have a special interest to sue for things like erosion of coast line over time quasi sovereign interest 0 How is a procedural iniurv different from the traditional iniurv How are you hurt from an agency not enforcing the rules Doesn t just apply to states but to everyone There is a lower standard there are certain things you don t have to show Redressability is already built into the injury They also don t have to prove traceability because the injury is by definition traceable to the action already built into the procedural injury 0 2 Causation global warming shown as a cause of the water rising 40 0 3 Redressability If the EPA regulates emissions from cars it will help the issue of global warming in Mass What would have happened if this was not in Massachusetts but a tribe of Inuits in Alaska sovereign under US law losing the land they re living on They had standing but lost for other reasons but the court struck down City of NY bars courts from hearing certain claims Congress may preclude judicial review through statute and APA precludes review where the agency is firmly committed to agency discretion by law Heckler v Chaney Prisoners sentenced to execution challenged the drugs being used for their execution under FDCA The drugs had never been approved for use in human executions FDA denied enforcement so they inmates brought suit claiming violations of the FDCA and requesting FDA to be require to take enforcement actions 0 Holding for FDA Omission of agency is up to their discretion They are presumptively unreviewable under 701a2 of the Administrative Procedure Act which is committed to agency discretion by law 0 Take Away if the agency does something it is reviewable but if they omit to do something it s nonreviewable There is no legal standard to determine whether the agency has made a mistake in regards to prioritizing there is no law to enforce Decisions not to take enforcement action are presumably immune from review under APA 0 However if an agency doesn t enforce something and they re all the same type of case it becomes a kind of systematic decision by the agency Inaction can become action through intentionality re ects implementation of policy and then is reviewable concerns the question of whether the agency s action is determinative rather than preliminary or advisory APA provides that only final agency action is subject to judicial review Final rule issued through noticeandcomment rulemaking process but proposed rulemaking process is not final 0 Usually agency guidance documents will not meet the finality requirement because such documents are neither binding nor the consummation of the agency s decision making process However if a court finds a guidance document is final trigger other rules that apply then a court could hold that document procedurally invalid for not having been issued through noticeandcomment rulemaking process a claim brought too soon is not the subject of a live case or controversy Coincides with article 111 case or controversy requirement It has not become concrete or individualized injury yet You can t sue for something that may or may not happen in the future 41 1 JUDICIAL DEFERENCE TO AGENCIES in regards to deference Start with Skidmore because it covers all It is a exible sliding scale of review Then use Mead because it s the sieve You don t get to chevron until you satisfy the mead test premised on whether it s the type of binding effect meant by congress and whether the agency took the steps to implement that kind of effect If you get past mead use chevron step one did congress speak If no then use Chevron step two which is the deferential step Skidmore v Swift Skidmore wanted timeandahalf overtime pay for extra hours worked and claimed that Swift violated the Fair Labor Standards Act Court agreed This case give the standard of review that applies to agency action that falls outside chevron This case said that although administrator rulings interpretations and opinions do not control judicial decisions they do constitute a body of experience and informed judgment to which courts and litigants may properly resort to guidance partial deference Take away interpreting the act through deference to the agency because they have more expertise Also agency uses balancing act when doing their own interpretations so the court should defer because the agency has earned it through weighing all the factors shows previous thought Can be used to patch over areas where Chevron does not apply This case was later overruled by Chevron USA v Natural Resources Defense Council which basically said that the Agency39s opinion should be controlling unless it is unreasonable Although the Courts have recently come back to Skidmore and found that not every decision should get complete Chevron deference Some decisions are only given partial Skidmore deference US v Mead Corp Does a tariff classification ruling by the US Custom Service deserve judicial deference under Chevron they changed their interpretation No but probably Skidmore partial deference Administrative interpretation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority Generally an agency action will almost always qualify got full Chevron consideration if it underwent noticeandcomment rule making 42 0 To not receive Chevron deference when agencies don t have a rationale and there s no reasoning for their interpretation and implementation then do not receive Chevron deference Also look to if the agency could and didn t use noticeandcomment 0 What happens if an agency changes their mind Must give notice to the party who they regulated and then they are free to change course 1 When Does Chevron Apply When are agencies due deference 0 Agency has to be involved agency has to be interpreting or implementing a statute 0 Under this step the court asks as a threshold matter whether an agency interpretation meets certain requirements that entitle it to the application of Chevron 0 If no the court then reviews the interpretation using the old standard from Skidmore some deference to agency interpretations they find persuasive judicial review 0 If yes then they use Chevron analysis Go to step one Directs reviewing courts to ask whether Congress has spoken to the precise issue in question whether the intent of Congress is clear Statutory interpretation and use textual tools O Chevron deference comes in when you get past Step One 0 If Chevron Step 1 does apply Congress did not speak then go to Step 2 0 Illustration for Chevron Step One FDA v Brown amp Williamson Tobacco Can the FDA regulate nicotine as a drug under their authority when congressional action in the past regarding nicotine prevents the FDA from taking control of the drug No Later enacted tobaccospecific legislation did not grant authority to the FDA so the allocation of authority prevented them from getting to step 2 O In FDA v Brown Tobacco the US Supreme Court held that the FDA improperly attempted to regulate tobacco because congress unambiguously denied that authority to FDA under Chevron step 1 in light of the sizable policy stakes involved contrary subsequent congressional legislation and prior inconsistent statements by FDA officials Unreasonable Agency Interpretations court s analysis under step 2 courts seek to ensure that the agency interpretation is thoroughly considered and well explained not arbitrary or capricious Seeks to make sure the agency did not abuse discretion or was otherwise not in accordance with the law 0 These tests and standards are straight out of the Administrative Procedure Act APA 43 0 Usually if it gets to step 2 then the agency wins The agency has to really screw up Barnhart v Walton significance Where reason trumps Man with a mental illness found himself unable to work and wanted social security benefits because he was disabled When the man applied for benefits the administration said no because he was only disabled for 11 months Congress passed the act which prevented people receiving benefits if they d been disabled for less than 12 months then there was an agency regulation and an agency interpretation of the rule 0 Court said the agency wrote the rule and should be able to conclusively say what the rule means and the court will defer to it 0 Did the agency properly promulgate the regulation that was in the statute passed by congress Yes still entitled to chevron level deference Mead says your chevron or you re not Barnhart says even if you don t pass the Mead standard you can have Chevron deference Remember Skidmore allows the court to defer What happens in regards to these two situations 1 Guidance is this entitled to deference They can be entitled to Skidmore deference but rarely Chevron 2 Agency s interpretation of its own regulation no one knows the issues better than the agency Agency has authority and authorship and experience Courts have usually deferred 0 Example Application memorandum issued by dept of homeland security modified their training manual They did not change the underlying regulation but it will likely lead officers to deny more asylum claims Only a 2 page analysis 0 How could an advocate for Mexicans eeing drug violence challenge the new memorandum what standard of review would apply Under Mead step zero look to see if it is a regulatory action which leads to Chevron If no then use Skidmore If step one does apply then step 2 gives us deferential review 2 JUDICIAL CONTROL OF AGENCY STAT IMP APA s administrative procedure act judicial review provisions authorize courts to determine whether the agencies have in fact followed the APA s procedures APA 706 specifies the standard of review that courts are to employ This is the arbitrary and capricious test 44 o What is deemed to be arbitrary and capricious Normally an agency rule would be arbitrary and capricious if the agency has relied on factors which congress has not intended it to consider entirely failed to consider an important aspect of the problem offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise Given to us in State Farm case Decisions based on formal procedures are also subject to the requirement that they will be deemed unlawful if they are unsupported by substantial evidence Called the Citizens to Preserve Overton Park v Wolpe D was trying to build a big highway through the city s park Secretary of Transportation had to show that there was no feasible and prudent alternative route which he did not do When does the APA not apply When statutes have their own provisions to deal with standard of review In this case the federal highway act of 1968 applies and the APA does not But later the APA 706 applies in regards to the record and the agencies decision Under 706 standards of traditional review do apply to agency actions including the arbitrary and capricious standard Secretaries always want to put highways in the middle of parks because they don t have to pay for it or take land from owners or remove people from their homes So what two things does the secretary have to show to take the park land 1 No known feasible and prudent reasonable alternatives and 2 All possible planning minimizes harm to the park Court deemed that formal findings were not required but judicial review based solely on affidavits was not adequate Affidavits were given by both sides in order to support their own causes wm1e an agency to make formal findings they do have to show a record to support their decision and how that record is linked to their ultimate decision Court remands because there was no record on which the secretary based his decision Court wants assurance that it was a rational decision Even if it was a substantive decision the court needs to know that The court gives deference to the agency but wants a rigorous process for determining how decisions were made Motor Vehicle Manuf Ass n of US v State Farm Secretary of transportation rescinded a previous rule saying that all cars must have airbags and seatbelts Court blocked the recission of 45 the rule because while an agency has the authority to reconsider its policies they must articulate a plausible reason for recission Did the agency have the right to take back the standard Yes but could not be for arbitrary or capricious reasons The agency s only reason for rescinding the rule was because they didn t think people would wear them and wouldn t like them There is nothing in the record to support the agency decision Overton park quotAn Agency39s view of what is in the public interest may change either with our without a change in circumstances But an Agency changing its course must supply a reasoned analysisquot Why do you have the same standard when you promulgate a rule as when you rescind a rule Lesser standard shouldn t be allowed for deregulatory action because action is action regardless of when it happened It s still an affirmative act to remove a rule and should be held to the arbitrary and capricious standard This case helps the HardLook Doctrine which says that when conducting judicial reviews courts must conduct a substantial inquiry and determine whether 0 The Secretary acted within the scope of his authority 0 His decision was within the small range of available choices 0 He could have reasonably believed that there were no feasible alternatives 0 The actual choice was not quotarbitrary capricious an abuse of discretion or otherwise not in accordance with lawquot 0 He followed the necessary procedural requirements 3 JUDICIAL CONTROL OF AGENCY PROCEDURE Vermont Yankee Nuclear Power v Natural Resources Defense Council issue what to do about nuclear reactor hazardous waste In issuing permits for power plants agencies can either consider waste or not If not then waste is determined through its own rule making noticeand comment Who won Vermont Yankee Power Plant Why Because the agency didn t use the right rule making procedures APA 553 specified the minimum agencies must do They aren t required to do more than that One of the most deferential cases Rewrote the rules Agencies can do more if they choose but courts can t make them 46 Whereas Overton is stricter and requires record basis 0 3008b and h They are not required to conduct formal hearings but would have a right to public hearings Formal adjudicatory procedures are applicable only to certain orders which include a suspension or revocation of status or an assessment of penalties for noncompliance US v Nova Scotia Food Products deals with a rule that essentially destroyed a company s product Whitefish that couldn t be cooked the way the rule wanted it to be The company sued and the question was whether the agency could be allowed to withhold certain information like the scientific information wakeam generauy Youwantanagencytobe an expert and have to regurgitate to the record everything they know This case is the exception to the rule unusual factors that allowed the rule to be struck down only in regards to this one company because it was arbitrary and capricious The company tried to show the agency additional information which the agency would not consider and they would not share their credible scientific evidence EX parte contacts de are communications between the agency and an individual off the record HBO v FCC HBO met separately with FCC and other parties for deals but none of the private ex parte communications were in the record Court said this was no fair and corrupt Reasoning ex parte communication undermines the validity and integrity of agency decisions The agency has to rely on information in the record so ex parte cannot occur However if ex parte communication happens somehow then a written document or a summary of any oral communication must be placed in the public file established for each rulemaking docket immediately after the communication is received so that interested parties may comment thereon 47
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