Intro Flashcards
(43 cards)
1
Q
Differing Perspectives on Admin Law
A
- one view = fairness, neutrality + reasonableness
- another view = entrenching the power of elite lawyers
- Kagan - protect presidential power
- Minnow - return value to tax payers (winds up prioritizing those who pay more)
- potentially may have started out neutral + efficient, but no longer accomplishes this because of overall dysfunction
2
Q
General Relationship Between Congress and Administrative State
A
Overall, what happens in Congress impacts the administrative state
- Congressional inaction forces agencies to do things to address novel problems
- the more laws Congress passes, the more agencies and actions
- Congress has to appropriate $ for agencies to act
- Congress confirms appointees to various positions
- Congressional oversight (hearings) - impacts how agencies use their time + how that time is allotted
- specificity - the more specific and clear Congress is in its legislative enactments, the easier it may be for agencies
3
Q
Current State of Congress
A
- Prof emphasized that we currently lack a functioning legislature
- lengthy inability to elect a speaker
- only passed 24 laws in 2023
- we are in a very long period of Congressional inaction - gridlock, heightened partisan divide, failure to address complex problems
- inaction creates gaps -> administration needs to fill in gaps to address big problems implementing laws passed that aren’t really designed to address these big problems
4
Q
Binder Reading - Reasons for Congressional Inaction
A
- polarized ends
- close elections (close separation between majority and minority in terms of numbers) - > game-playing, in which you can theoretically always win the next election + there’s no incentive to cooperate to get what you want
- intra-party bicameral disagreement between House + Senate
- incentive for minority party to play confrontational role in Senate - decreasing political cost for filibusters
- loyal + cohesive parties - partisan team play instead of crossing aisles to address underlying policy issues
5
Q
Historical Overview of SCOTUS Relationship with Admin Law
A
- pattern - some kind of gov action followed by political backlash to gov response + court’s modulation of that growth/backlash
6
Q
Marbury v. Madison
A
- Prof noted this as reinforcing notion of checks + balances -> important starting point for the pattern she emphasized
7
Q
1st Big Cycle of Admin Law
A
- late 19th century, industrialization (disruptive event) -> challenges of more complex urban society prompted gov action (Progressive Era) -> SCOTUS pushes back on gov intervention with Lochner
- laissez-faire econ strongly influenced courts -> SCOTUS starts to invalidate econ regs
8
Q
2nd Big Cycle of Admin Law
A
- Great Depression -> Congress responds w/ significant expansion of fed gov (SEC, NLRB, WPA, SSA)
- National Industrial Recovery Act -> required industry-wide codes (can set prices, wages, output - handing over control of econ to sectoral alliances) -> companies were not happy -> Prof described response as non-delegation doctrine’s moment in the sun (Schecter Poultry)
- Schecter Poultry = the last time SCOTUS invalidated something on the basis of the non-delegation doctrine (said Congress can’t wholesale delegate its legislative authority to agencies)
- counterpoint - the Great Depression required major level of detail Congress wasn’t equipped to develop
9
Q
Non-Delegation Doctrine Standard
A
- pops up after Schecter Poultry - need an “intelligible principle”
10
Q
Broader Reasoning of Schecter Poultry
A
- Prof emphasized that SCOTUS recognized the bigger problems Congress was trying to address
- BUT concluded extraordinary conditions do not create or enlarge constitutional powers
11
Q
3rd Cycle - Disruptive Event
A
- FDR’s court-packing scheme
- concept of failure as court reform but success as admin law reform
- SCOTUS kept striking down New Deal legislation (said exceeded fed gov’s authority)
12
Q
3rd Cycle - Judicial Response
A
- initially, switch in time that saved nine (Roberts began citing with liberals) -> Parish v. West Coast Hotel
- even though court-packing scheme never went through, wound up prompting SCOTUS approval of New Deal programs + broader inervention of fed gov in econ + social matters
13
Q
APA (Within Context of Admin Law Cycles)
A
- comes at outset of a relatively tranquil period in admin law
- self-correction of FDR + Truman admin.
- strategic move to head off any more aggressive reform of the administrative state
- followed by relatively stable and deferential period of admin law (calm relationship between courts + admin. state)
14
Q
Criticisms of Official Admin Law Story
A
- role of elite lawyers in creating the original “compromise”
- Labor movement + progressive reformers favored an approach to admin decision-making that selectively empowered particular representative organizations … but the APA’s rule-making process requires unions and business orgs/the elite to compete on formally equal participatory footing and does nothing to account for business’ disproportionate ability to engage in governing process at every level
- APA process dominated in practice by concentrated business interests
-> logical outgrowth issue
-> need to respond to significant comments - means more likely o cave to business rather than spend time and energy on litigation
15
Q
Bagley APA Reading
A
Calls for revival of thinking that connects legitimacy of admin state to:
- its ability to satisfy public aspirations,
- enable fairer distribution of wealth and political power
- protect us from predations of private corps
- minimize risks to our health, financial security, + livelihood
16
Q
Freeman and Minnow Reading - Overview
A
- fed + state gov relying a lot a start of 21st century on ongoing contracts w/ private providers for much broader range of gov functions
- modern outsourcing = rxn to period beginning w/ Progressive Era + lasting through New Deal when disillusionment w/ private sector led to popular support for entrusting public institutions w/ greater responsibilities and gov growing dramatically -> by late 1970s swimming towards private markets and competitive practices (expectations of gov change)
- result: gov not indispensable now even for functions we think of as inherently governmental
- citizen as customer (not caring about identity of provider)
17
Q
Freeman + Minnow - Why Contract System Doesn’t Work
A
- invisible + unresponsive to public in whose name it’s undertaken
- fails to guard against inefficiency, conflict of interest + abuse
- much of power being exercised through contracting is largely unaccountable to any regime of oversight (market, legal or political)
-> need capacity w/in gov to develop + monitor contracts
18
Q
Schechter Poultry - Facts
A
- deals w/ Section 3 of NIRA
- authorized Pres to approve codes of fair competition upon application by one or more trade or industrial associations or groups
- to approve, Pres had to find only that (1) groups impose no inequitable restrictions on admission to membership and are truly representative, and (2) such codes not designed to promote monopolies or oppress small enterprises and will not operate to discriminate against them and will tend to effectuate the policy of the Act
19
Q
Schechter Poultry - Ruling + Reasoning
A
- unanimous court invalidated section 3
- extraordinary conditions don’t create or enlarge constitutional power
- Section 3 supplies no standards for any trade, industry, activity -> instead of prescribing rules of conduct it authorizes the making of codes to prescribe them -> discretion of President is virtually unfettered -> code-making authority conferred is an unconstitutional delegation of leg power
20
Q
Benzene Case - Factual Background
A
- 1980
- benzene = substance that had been shown to cause cancer at high exposure levels
- OSHA wanted to reduce standard regulating occupational exposure from 10 ppm to 1 ppm
- this standard placed the most stringent limitation on exposure to benzene that was technologically + economically possible
21
Q
Benzene Case - Statutory Background
A
- Occupational Safety + Health Act gives Sec of Labor broad authority to promulgate occupational safety + health standards - defined as standards “reasonably necessary or appropriate to provide safe or healthful employment or places of employment”
-> Secretary took the position that no safe human exposure level could be determined for benzene + instead §6(b)(5) of Act required lowest standard technologically feasible w/o impairing regulated industry viability (lingo was “in promulgating standards dealing with toxic materials or harmful physical agents,” need “standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity”)
-> 5th Circuit held standard invalid - said hadn’t established 3(8) of Act met (hadn’t shown standard was ‘reasonably necessary or appropriate”, which Secretary was arguing didn’t apply to regs under 6(b)(5))
22
Q
Benzene Case - Ruling + Reasoning
A
- SCOTUS holds standard invalid - says not supported by the appropriate findings
-> basically, they take the 5th Circuit view + say standard wasn’t based on finding that cancer caused by exposure to 10 ppm + won’t be cause by 1 ppm, but just on assumptions indicating some cancer might be caused by 10 ppm + number of cases might be reduced by lowering exposure level
-> said 3(8) implies before promulgating standard, Sec must make finding workplace not safe, + safe not = risk-free (more significant risks that can be eliminated)
23
Q
Benzene Case - Significance
A
- Prof described this as more of a tremor in Admin Law than an earthquake
- sort of SCOTUS version of a reminder that there are limits
- discussion of reasonableness test though that seems to almost trump text , doesn’t appear that statute says you can’t do this, more just expression that there’d be something wrong w/ this level of reg, giving OSHA too much power
24
Q
Chevron
A
- 1984
- Prof noted its place in admin law narrative she was telling
- not a lot of empirical evidence on what happened after it -> some indication agency wins went up, then back to normal (might be b/c litigants reluctant, could also be agencies pushing boundaries, also possible Congress got more specific)
25
Obama Presidency
- Metzger points to this as start of new Admin Law phase (shift from agencies getting their way)
- Obama facing near econ collapse amid unprecedentedly partisan rxn from Republicans in Congress -> had a lot he needed to get done + shifted to relying more on exec branch authority to do it
- Obama pretty transparent about this (phone + pen phrase)
- yields backlash - Prof noted different in the size + scale of the backlash
26
Gutierrez-Brizuela v. Lynch - Significance
- 10th Cir 2016
- facts not important, focused on tenor of Gorsuch concurrence
- largely focused on Brand X and Chevron, though Prof used as example of ferocity of backlash against administrative state
27
Lynch - Gorsuch Concurrence Arguments
- Chevron and Brand X permit exec bureaucracies to swallow huge amounts of core jud + leg power + concentrate federal power in a way hard to square with US design -> emphasizing separation of powers
(guard personal liberties)
- Brand X issue of jud determ not being decisive (can redo, instead of needing new law)
- §706 - Congress gave COURTS power to interpret stat provs (Chevron abdicates duty -> DP + EP concerns)
- doesn't buy Congressional intent to delegate in silence
- too much power in exec - Chevron invests power to decide meaning of law and do so with legislative policy goals in mind in the very entity charged with enforcing the law (all 3 kinds of powers)
- reliance interests (jud interps can't be changed, admin can)
28
Lynch - Prof's Core Points
- Gorsuch portends death of sep of powers -> argues Chevron allows for too big + powerful admin state
- policy oscillation upsetting reliance interests
- portrays Chevron as threat to liberty
29
Language of Gorsuch Lynch Op
- "behemoth"
- admin state as "colossus"
- admin state subject to "army of perfumed lawyers and lobbyists" + political winds
- "unfettered power"
- David + Goliath claim
- arguing Chevron allowed behemoth to grow in response to prevailing political winds (Prof noted his claims don't really match what actually happened though + emphasized the "Liberty and Democracy" Article)
30
Alabama Assoc of Realtors v. HHS
- 2021
- DDC decision 2021: COVID eviction moratorium order was unauthorized and is set aside; Chevron applies but agency loses on step 1
- SCOTUS denied motion to vacate stay; Kavanaugh concurrence that bc it will allow for orderly distribution of the funds he is voting to deny motion to vacate but clear and specific congressional authorization (via new legislation) would be necessary for CDC to extend moratorium past July 31
- SCOTUS reviewed renewed moratorium and found CDC likely lacked authority to issue it; provision was limited to CDC measures directly related to preventing interstate spread of disease by isolating disease itself as opposed to indirect measures like moratorium
- “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance”
31
Emerson - Liberty and Democracy Article - Abstract
- conservative Justices have argued power vested in agencies threatens indiv freedom + collective self-government -> Article critiques this use of political theory
- Justices don't faithfully + even-handedly apply the complex tradition of Am pol thought on which they rely
- Js invoke several different + competing aspects of liberty and democracy to criticize admin state
- B/c Js don't disentangle various aspects of 2 values from one another, draw faulty inferences about how best to protect them
- don't acknowledge ways in which properly structured admin power promotes liberty + democracy -> thereby aggrandize judicial power at expense of elected branches w/o effectively promoting indiv autonomy
-Court would be justified in tailoring judicial deference so as to protect procedural fairness, which falls within the judiciary’s core institutional competence BUT shouldn't have exclusive or even primary custody over meaning + app of liberal + democratic values -> should be a task for the people and the elected branches to safeguard these values in gov
32
Emerson Reading - Class Notes
- ct has moved from legal to political theory args but keeps telling us its doing legal stuff
- inconsistently applies liberty + democracy values
- the sole consistency is more in upholding role of court in reigning in democratic actors + "protecting the people" (framing itself as protector against overreach)
- sometimes claim Pres overreach + other times Congress-> selectively emphasizing who's democratically elected based on what serves its own power
- not enhancing popular control or returning power to the people, it's just returning power to the court (the LEAST democratic of the 3 branches by design)
33
Emerson - How is admin law able to advance the values the court claims to defend?
- public participation in rulemaking (Prof noted this as a big piece missing from Gorsuch's world view)
-> when done right, admin law allows people in convo w/ gov to influence norms by which they're governed
- courts can swing + be influenced by politics
- back + forth of Congress + Press can provide democratic legitimacy
- public drives + participates in political decisions through elections
34
Broader Theme of Current SCOTUS + Admin Law
- anti-admin mentality in cases
- not really acting as neutral arbiters of admin state - more seem like acting to advance particular vision of gov. that aligns with a very partisan position
35
Buffington - Gorsuch Dissent from Cert Denial
- arguing bias in ct's admin law decisions since Chevron - placing finger on scale on side of most powerful litigant, the gov
- doesn't trust admin law to speak on behalf of public - takes resources to engage w/ admin state (could argue same of court - VERY much place where elites arguing)
- Encourages more ambitious rules on thinner statutory terms
- Allows new admins to undo work of past admins; encourage agents not to aspire to fidelity of Congress’s words but to do what they can when they can
36
Regulated Community vs. Beneficiary Community
- difference between ability of regulated community + beneficiary community to engage w/ admin law
- law is structured in a way that often allows for greater participation of regulated entities
37
Prof's Take on Chevron Battle
- not just about who decides what the law is, more about size + function of gov -> makes this point in the Admin Law cycle different
38
Role of Congress in Present Admin Law Moment
- wouldn't have such heated battles if they passed laws w/ more specificity
- BUT currently in period of unprecedented inaction
39
Pandemic and Admin Law
- historically, court should've LOOSENED gov restrictions in response to emergency BUT opposite - anti-admin stance strengthened
- Ala Assoc of Realtors reflects recalibration of court's admin law stance
40
Ala Assoc of Realtors - Significance
- CDC allowed to use "other measures as in his judgment may be necessary" -> CDC says eviction moratorium = necessary
- SCOTUS DOESN'T question CDC judgment of whether necessary - INSTEAD just focused on bounds of agency authority
- statute didn't literally say CDC couldn't impose eviction moratorium + Ct didn't even think statute wasn't ambiguous - just says "vast econ + pol significance" - basically claiming just TOO MUCH POWER
- case shows present battle not about who gets the final say on the law, it's about size + scope of gov power
41
Summary of Prof's Theory
- cycle of disruptive event -> expansion of admin state -> pressing boundaries of authority -> court comes in to reign it back in -> BUT present possibility that the cycle may be breaking down
- pandemic was a very disruptive event, but the court didn't really allow the expansion
- added problem of Congressional gridlock -> combo likely to cause bias towards inaction + intensification of existing disruptive events
42
Challenge of Pandemic for Congress
- Prof noted in class that she worked on legislation on the Hill, trying to create something that would put measures in place for next pandemic -> her takeaway was that no one then imagined what the pandemic actually wound up looking like - literally impossible for Congress to legislate with sufficient specificity
43
What can happen if court makes it difficult for admin state to step in + solve problems?
- power vacuum -> risk that Pres will wind up just taking court out of the equation - act 1st then seek forgiveness
