Legislation and Regulation

Linguistic Canons

1) Ejusdem generis a) DEFINITION: when a statute sets out a series of specific items ending with a general term, that general term is confined to cover- ing subjects comparable to the specifics it follows. b) EXAMPLE: For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-powered vehicles, a court might use ejusdem generis to hold that such vehicles would not include airplanes, because the list included only land-based transportation. c) CASES: Yates v. United States: the ct held that a "tangible object" does not include a fish, reasoning that where general words follow specific words in a statutory enumeration, the general words are construed only to embrace similar words 2) Noscitur a sociis a) DEFINITION: a word is known by the company it keeps, used interchangeably with ejusdem generis. Words are known by its associates. Context defines a word and helps limit its interpretation. the meaning of an unclear or ambiguous word in a statute or contract) should be determined by considering the words with which it is associated in the context." 3) Expressio Unis a) DEFINITION: Where Congress includes particular language in one section of a statute but omits in another ... , it is generally presumed that Congress acts intentionally and purposely in disparte inclusion or exclusion." - Scalia Dissent in Sweet Home b) CASES: Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. Main issue: Does habitat modification count as harming an endangered species? How should the court interpret "harm?". Ordinary meaning harm: hurt, injure or damage Broad purpose of the statute: Prevent activity that causes harm to endangered species and to preserve endangered species so they do not go extinct Precedent: How have previous cts interpreted the word harm 4) Whole Act Rule: a) DEFINITION: functions on the coherence principle that identical words in a statute should typically be given the same meaning. 5) Exception to Whole Rule Act a) CASE: General Dynamics Land System v. Cline Facts: Ps argued the word "age" should have the same meaning throughout the statute but the ct disagreed. Reasoning: Age has several commonly understood meanings and a speaker can alternate them in an ordinary conversation MORE EXAMPLES ON PAGE 20 OF ALIYA'S OUTLINE

Preemption

4 TYPES 1) express preemption 2) implied preemption 3) field preemption 4) conflict preemption

Agencies

4TH BRANCH Some believe the agencies act as a 4th branch of govt (justice robert jackson 1952) WHY HAVE AGENCIES? 1) congress cannot be an expert is everything i.e. scientists, economists 2) congress believes it is more efficient to have different agencies specializing in different areas. Ppl who are more familiar with the subject area can make more efficient and informed decisions 3) depoliticization EXECUTIVE CONTROL OVER AGENCIES 1) appointment (of executive agencies but must have approval from congress) 2) Removal (pres does not need permission to remove) 3) President may supervise what occurs within agencies and subject many agency actions to white house review. EXECUTIVE AGENCIES 1) most federal agencies are part of the executive branch so we call them executive agencies. i.e. EPA, IRS, NOAA,SSA, FWS, TSA-- agencies that are directly responsible to the president meaning the head of the agency is appointed by the president and can be removed by the president. 2) President does not need permission to remove the head of any agency but, the presidents choice of the director or administrator must be approved by the senate. 3) Executive agencies are ultimately responsible to the president INDEPENDENT AGENCIES 1) made by congress 2) purpose: so that president does not have authority over agencies congress made 3) more independent from the presidents control i.e. FCC, SEC, FTC, CFPB 4) seen by a board instead of an individual 5) no individual is in control but a group of ppl (majority) make the decisions 6) president needs approval when appointing person to the board or commision of independent agencies 7) president has less ability to tell independent agencies what to do 8) independent agencies are part of the executive branch 9) congress delegates the power of the agencies 10) congress gives out money to agencies 11) congress is the source of agency authority

Intro to Administrative Law and Regulation

ADMINISTRATIVE LAW 1) law that govern administrative agencies and officials. 2) rules that the govt must follow before they tell the public what to do REGULATION 1) corrects a market failure (addressing th eundesired consequence of privat eactivity i.e. factory's pollute, we want to regulate how much they can pollute). 2) we may want rules that govern the importation of products. 3) Regulations can enhance public health or safety. i.e. rules ogverning how airplanes are built, we want them to be safe, what things you can bring on a plane 4) Adjust the relative costs and benefits of relevant activity: 5) Help interest groups obtain benefits from the government. i.e. many experts believe the use of fuel additives with corn may help the market for corn but it wouldnt be all that beneficial to consumers. BRANCHES OF GOVT 1) Legislature: congress (house of reps and senate). Enacts statutes and laws. 2) Executive: President. Enforces the laws that the legislature enacts 3) Judicial: Federal courts (supreme ct, circuit ct, district ct). Judges that adjudicate disputes. HOW DOES REGULATION SUPPLEMENT WHAT THE 3 BRANCHES DO ON THEIR OWN 1) Example: We want ppl to be safe drivers. How do we encourage drivers to be safe? We can impose liability rules-that means the person who is not safe, can be sued by the other injured in the accident. But, the risk of being sued is not a clear rule for rewarding safe drivers. So... we impose speed limits, so the legislature enacts the speed limit and portions of the executive (police for ex) will pull you over if your driving too fast and will execute or enforce that law). If you think you were wrongly pulled over, you can go to ct and the judiciary will hear the claim. 2) Complicated ex: fed govt wants to make sure the cars we drive are safe. The threat of litigation may force ppl to make safer cars

Challenging an Agency

APA 706 1) call agency decision arbitrary, capricious, abuse of discretion, contrary to law 2) contrary to constitutional right 3) in excess of statutroy jur 4) without observance of procedure 5) unsupported by substantial evidence or unwarranted by the fact

Major Questions Rule

CASES 1) King v. Burwell (chevron) a) Issue: Question of whether the tax credits for health insurance exchanges apply to state exchanges or only federal exchanges b) Holding: Held: Applying Chevron, majority identified latent ambiguity in statutory provision creating "such exchanges." Phrase was ambiguous, and the majority resolved ambiguity by looking at the statute's function. The court reasoned that dismantling the tax credits would effectively dismantle the ACA, so the tax credits should be upheld. Rejects canon against surplusage c) Dissent: Scalia apoplexy: Says the language is clear. No ambiguity, so no Chevron deference. Invokes canon against surplusage for use of "state exchange" instead of just "exchange."

Appointing Officers

CASES 1)Buckley v. Valeo a) Officer- any appointee exercising significant authority pursuant to laws of the United States Article 2 section 2- exclusive means for appointing officers

Chevron Deference

Chevron USA Inc. v. Natural Resources 1) WHAT: the EPA's interpretation of portions of the clean air act. 2) PROBLEM: Natural resources defense counsel was challenging the way the EPA had interpreted the statute. 3) DECISION MAKING: US Supreme ct announced a rule that determines what cts should do when they are reviewing an agencies interpretation of a statute. 4) WHAT CTS SHOULD DO WHEN THEY HAVE TO REVIEW THE INTERPRETATION OF THE STATUTE THAT THE AGENCY ADOPTS: under chevron, cts follow a 2 step process: a) first look at the statute, if the statute is clear, it must be enforced on its own terms and the agencies interpretation is irrelevant. What matters is what the statute says bc the law is what congress enacted. b) If the statute is unclear, or the statutes language does not directly or clearly answer the question at issue a ct is supposed to DEFER to the agencies interpretation so long as the agencies interpretation is reasonable and consistent with the text. Agencies interpretation does not have to be the best interpretation of the text just has to be a reasonable and permissible interpretation of language that is otherwise ambiguous. RULES 0) Step 0: whether the agency action has the force of law and is thus subject to review under chevron Step 1) whether congress answered the question before us. If they did answer, then that answer controls. If they did not then Chevron step 2 Step 2) whether the agencies interpretation is a permissible one. when deciding if an agency's interpretation is permissible, cts typically give the agencies large deference unless it is clearly unreasonable. 1)if the statute is clear, enforce the statute that is written 2) if the statute is ambiguous, defer to an agency's interpretation 3) under chevron, a ct is not supposed to substitute its preference for the agencies MEAD: only agency actions with the force of law are subject to Chevron scrutiny REASONING FOR CHEVRON 1) when congress enacts an ambiguous statute, it implicitly delegates to an agency the authority to clarify those ambiguities. 2) WHY: congress is not an expert in all the intricate details of what the agencies have to deal with. Congress has a general idea of what sorts of policies it wants enacted it does not know how to precisely carry those idea into operation. It wants the agency to do that. CAVEATS: 1) cts generally want to see some evidence that congress did in fact delegate interpretive authority to the agency. Usually met by: when congress has delegated to an agency the authority to promulgate a regulation with a force of law, that is typically seen as sufficient indication that congress meant to delegate interpretative authority. I.e. Congress says to EPA issue a rule that helps reduce pollution from power plants, congress has delegated power to the agency 2) Cts want to defer to those agency interpretations that are made when agency is exercising its regulatory or other authority.

Church of the Holy Trinity v. United States

Classic Statutory Interpretation Facts: Church sought out a man residing in Englad. If warren came to the US then he would serve as a pastor for the church. The problem is, the US has a statute that prevents ppl come over for the sole purpose of labor bc it supposedly hurts the US ppl by taking away their jobs by bringing in foreigners that would work for lower wages. How they interpreted the statute 1) looked at the title. Title is like a shorthand marketing technique. 2) Look at the evil the statute was supposed to remedy. In this case, was supposed to prevent cheap laborers from coming over to the US and ruining the US labor market rule: A thing may be within the letter of the statute and yet not within the statute, because it is not within the statute's spirit, nor within the intention of the statute's makers. Holding: the Contract between the church and warren was legally acceptable Reasoning: the US is a christian nation and would therefore not punish someone for bringing over an English minister

Legislative Vetos / Control on Agency Authority

DEFINITION 1) A legislative veto is a statutory provision that enables Congress to reverse an agency decision without enacting a new statute. CASES 1) INS v. CHADHA a) Facts: Statute allowed AG to suspend deportation under certain requirements, but his decision could be overturned by Congressional oversight committees. Challenge addressed whether one house of Congress could invalidate an executive branch decision. b) Holding: Single house vetoes are unconstitutional. Without the challenged provision, the result could only be achieved through legislation. Since the Constitution does not authorize one house to act alone (outside Advice and Consent), the Oversight Committee veto was an exercise of legislative power and is therefore subject to bicameralism and presentment c) Dissent: Dissent: SCOTUS should be wary of striking an entire class of statutes based on an atypical exemplar of the class.

Substantial Evidence Standard

DEFINITION 1) ct wants the agencies decision to be based on more than a mere scintilla of evidence 2) Must have such relevant evidence as a reasonable mind might accept as adequate to support a conclusion 3) there must be enough evidence to support the conclusion the agency 4) Not a preponderance of the evidence 5) this is why ppl look for a procedural error bc it is hard to disprove substantial evidence

Delegation of Legislative Power

DEFINITION Delegation / non-delegation Doctrine: there are limits on the scope of power or decision making Congress may delegate to the administrative agencies. It is an implied power and COngress simply needs to provide an intelligible principle for delegation. CASES 1) Whitman v. American Trucking Association a) Facts: Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform." b) Takeaway: Must provide an intelligible principle "requisite to protect public health with an adequate margin of safety." Court says that the fact that this would give agency a lot of discretion doesn't matter because it isn't infinite - "must be intelligible principle to which the person or body authorized to act is directed to conform" = constraint. Need something to compare to see if agency is doing what it is supposed to.

Rule of Lenity

DEFINITION 1) when interpreting a criminal statute, we should interpret that statute to the benefit of someone who is accused of a crime RATIONALE 1) before ur life and liberty is put at jeopardy, we need to make sure that the criminal understands or was aware of what it was that was against the law 2) we dont want ppl to be caught breaking that law merely bc the law was ambiguous and the public couldn't be expected to understand what was prohibited. IN ACTION 1) when it comes to a criminal statute, courts will adopt the rule of lenity 2) cts will be more lenient in the way they interpret a criminal statute bc they involve very severe penalties

Congressional Control of Agency Officials

DEFINITION If congress had a role in removing an agency officials it would be unconstitutional CASES 1) BOWSHER V. SYNAR a) Facts: Congress passed an act in which the comptroller general would submit deficit reductions. President would order the reductions make by the comptroller general. Comptroller was only removable by congress. Then Congress challenged the constitutionality of the act. b) Holding: The act was unconstitutional bc it violated the separation of powers also, because a legislative agency was executing the law and could force out officers without impeachment

Substantive Canons (use to interpret exam)

DEFINITION Ways we interpret statutes based on a particular type of outcome.Textualists apply substantive canons more narrowly than purposivsts would. EXAMPLES 1) CONSTITUTIONAL AVOIDANCE - since all the branches are equal we should assume that Congress is trying to act constitutionally. Should update the statute based on contemporary understanding 2) RULE OF LENITY - If there is ambiguity in a criminal statute it should be resolved in favor of the defendant. (See discussion in Lockhart v. US). 3) STARE DECISIS - Once a statute has been interpreted by the Supreme Court the precedent is exceedingly strong. 4) CANON THAT SPECIFIC TRUMPS GENERAL PROVISIONS- If statutes or provisions are contemporaneous, the specific rule will trump the general provision. 5) LEGISLATIVE ACQUIESCENCE: a) DEFINITION: When Congress does not counteract the agency's action, they acquiesce to the behavior. b) CASES: BOB JONES UNIVERSITY v. U.S. Holding: Court rules that a school that engages in racial discrimination does not qualify for 501(c)(3) status. Court looks at what Congress did after the IRS revenue ruling. Congress actually brought up this specific issue several times but did not act on it, which demonstrates legislative acquiescence. Court argues that the purpose of the statute is to promote charity and charity should promote the public interest. 6) SCRIVENORS ERROR (mistake) A) Definition: in the process of writing the statute someone made a spelling mistake. It must be "demonstraily against the text". B) Textualists: would use the use the rule of absurdity in the case of scrivenor's error c) Purpovists: use in cases where text leads to ridiculous or extremely unjust results.

Due Process for Adjudications

DUE PROCESS CLAUSE IN 5TH AMENDMENT 1) applies to fed govt DUE PROCESS OF THE 14TH AMENDMENT 1) applies to the states WHAT PROCESS IS DUE 3PT BALANCING TEST DECIDED IN Matthews v. Eldridge-- loose guide as to due process for adjudication 1) ct should consider the seriousness of deprivation i.e. is it criminal? Are you taking away benefits from a poor family? 2) the ct considers the risk of an erroneous deprivation and the potential to reduce that risk 3) the 3rd factor the ct considers is the govt's interest. Includes the extent to which requiring additional process will impose financial or other costs on the relevant govt' agency WHAT PROCESS IS DUE 1) notice: due process requires that someone have notice before there is any deprivation of a protected interest. 2) Opportunity to be heard at a reasonable time and manner 3) must be heard before a neutral decision maker. WHAT DOES DUE PROCESS MEAN FOR ADMINISTRATIVE LAW? 1) laws must be properly enacted as provided for in the constitution 2) Legislation must go through bicameralism and presentment DUE PROCESS ANALYSIS 1) whether the adjudication threatens to deprive an individual of their protected interest (life, liberty, property) 2) If there is such a risk, what degree of process is necessary to ensure due process has been provided WHAT IS A PROPERTY INTEREST? 1) fishing permits can count 2) whenever there is an interest being threatened of being taken away, there is an interest of due process.

Removal/ Firing of Officers

FIRING SOMEONE IS NOT COST FREE a) in a regular work place, employees are important. they each have a different task. once you remove an employee, there task if left un-done and you need someone to do that task CASES 1) MYERS V. UNITED STATES a) A law that required a President to get Senate approval before dismissing the Postmaster General violated Article II of the Constitution (Separation of Powers issue). 2) HUMPHREY'S EXECUTOR a) Facts: Roosevelt dismissed head of FTC without a stated reason (he was in the wrong party), Humphrey' estate sues for his salary after he dies. b) Holding -> Congress can limit the President's power to dismiss an officer. The FTC does non-executive things (both legislative and judicial functions), so it is okay to limit the executive's (President's) power. Differed from Myers because Postmaster was doing executive function. 3) MORRISON V. OLSON Holding: Independent counsel = inferior officer so it does not violate Article II Dissent: POTUS should have all power to remove bc he must be faithfully able to execute the laws 4) Free Enterprise Fund v. Public Company Accounting Oversight Board a) Issue: Whether the President can be restricted from removing an officer who is responsible for the execution of the laws? b) Answer; No c) Rule: President cannot be prevented from removing a principal offer of the law Security and exchange can still remove

Interpretting Statutes

GENERAL PROCESS 1) start with the text, if the statute is clear then enforce the statute is written 2) if the statute is ambiguous defer to an agency's interpretation (chevron deference). UNCLEAR MEANING OF THE STATUTE 1) many cts look at legislative history-- what did members of congress say about it when they were enacting the statute --- how was the bill revised when it went through the committee process-- what did ppl say about it? These questions can help us figure out what the statute is supposed to do. Problems: not every supporter of a statute has the same reason for supporting it. While legislative history may be helpful, the reasoning from 2-3 ppl may not be presentative of the entire population in congress who supported it 2) overall purpose of the statue/ broader srtatutroy scheme. i.e. for an environmental statute, the cts will not interpret it favoring pollution. Look at the broader purpose of the statutory provision. What do other parts of the statute say? 3) EXPRESSION UNIS: this canon holds that when congress specifies certain things in a statute but omits like or equivalent things, that omission should be seen as intentional. If congress was specific about somethings but not others, we admit those specifics had a purpose. 4) CANON OF CONSTITUTIONAL AVOIDANCE: interpret a statute to avoid creating constitutional problems. So if there are two ways to interpret a statute, one that is constitutional and one that is unconstitutional, courts try to read the statute in a way that avoids that constitutional problem. Courts usually reject agency interpretations that support constitutional problems

Administrative Procedure Act

GENERALLY 1) APA is a default rule and other statutes may override i.e. congress, potus, fed cts, 2) Divides the world into 2 section a) rulemaking and b) adjudication 3) federal rules that decide whether agencies have complied with accepted procedures - lets us know that certain constitutional procedural requirements are met 3 TYPES OF RULEMAKING 1)formal 2)informal 3) hybrid- statute specific RULEMAKING 1) regulates future conduct 2) Definition: Agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy 3) what fed agencies must do when they want to implement a rule 4) Rule = an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy r551(4) 5) Rule is promulgated by an agency statute is promulgated by a legislature 6) Rulemaking= agency process for formulating, amending or repealing a rule. Rule must go through rulemaking. Informal Rulemaking 1) also called notice and comment 2) 553 of APA= any fed govt rule must go through rulemaking 2.5) If the goal of an agency is to alter the rules governing conduct, then it must abide by 553 3) Agency must give the public notice before enforcing a rule 4) agency must give the public time to respond to the proposed rule "opportunity to comment" i.e. a rule about trucks may receive comments from truck drivers, need an opportunity to comment on the rule. Comments should last several. 4) After comment period, the agency must propose a "concise general statement" of basis and purpose. The statement should contain the legal authority for the rule, the rationale for the rule and must meaningfully respond to the comments received during public comment period 5) final rule should relate to the original rule. If the agency finds an easier way to meet its policy goals, it may have to provide a "supplemental notice" to the public that identifies its new thinking 6) final rule does not need to be identical to what is proposed, but it cannot be entirely different and come as a surprise. 7) Public must be informed of changes 8) these are default rulemakings 9) Exceptions to 553 informal rulemaking: rules where the agency does not have to go through the notice and comment process. a) includes internal rules of agency management or personale. rules governing an agencies internal operations do not directly effect private interests so they are not subject to 553. b) also exempt from notice and comment, interpretive rules and policy statements. If all an agency is doing is clarifying its interpretation of a relevant law or explaining its policy priorities or how it plans to implement a policy. c) good cause: if an agency concludes it would be impracticable, unnecessary or contrary to the public interest to go through the full notice and comment period (553), it may bypass these processes but it must explain its reason for doing so (useful when u have to respond quickly i.e. threat to public safety, health) FORMAL RULEMAKING 0) APA 553, 556, 557 1) Evidentiary hearing presided over by agency 2) Proponent of rule has burden of proof 3) Cross-examination of witnesses/ experts 4) Formal record is basis for decision 5) Parties may submit proposed actions 6) Prohibition on ex parte 7) rulemakings that require a formal on the record hearing at which witnesses may present testimony and evidence 8) not used very often 9) Language: must expressly say there must be a formal rulemaking.only required when the statute says so, must be mad eon the "on the record hearing" indicates in a statute that formal rulemaking is required. FORMAL RULEMAKING CASES 1) VERMONT V. NRDC a) Facts: arises out of nuclear power plant decision b) Holding: Courts may not impose procedural requirements. Agencies must follow when taking administrative action. ADJUDICATION 1) concerned w past and present rights, and liabilities FORMAL ADJUDICATION CASES 1) U.S. v. FLORIDA EAST COAST a) Takeaway: when you hear/ see "on the record" it is a formal adjudication. b) Takeaway: How to know when formal adjudication is required... (1) Congress has a statute that says agency shall do a, b, c when making rules; (2) Agency itself says do these things with hearings when rulemaking - § 556, § 557.... OTHERWISE assume informal. INFORMAL ADJUDICATION 1) APA § 555 - Informal Adjudication REQUIREMENTS 1) Has some responsibility to explain why it did what it did CASES INFORMAL ADJUDICATION 1) Overton Park. Volpe a) Facts: Dept of transp. tried to put a highway through a park in Memphis and park lovers filed suit. b) Holding: highway not built, against DoT c) Reasoning: Agency challenged for not considering feasible or prudent alternatives or attempting to minimize harm as required by statute. When "statutes are drawn in such broad terms that in a given case there is no law to apply." However, the court said there was law to apply, so the decision was reviewable under APA 706 (arbitrary and capricious test) 2) Motor Vehicles Manufacturers Association v. State Farm (arbitrary and capr) a) Facts: Here, the agency erred in failing to consider modifying the rule instead of rescinding it. The agency could have changed its position, but it needed to have evidence to explain why new circumstances justify the new rule. b) Rule: When an agency rescinds a rule promulgated through notice and comment, the agency must cogently explain why it has exercised its discretion, or else it's arbitrary and capricious. 3) FCC v. Fox (arbitrary and Capricious) (R 706 APA) a) Facts: FCC sanctioned Fox for allowing swear words on the air 2x. Fox called the change "arbitrary and capricious" b) Holding: Agencies need only show rational basis for the new policy. There is no basis for requiring justifying all agency action representing a policy change by reasons more substantial than those required to adopt a policy in the first instance. ARBITRARY AND CAPRICIOUS TEST Action is arbitrary and capricious if: 1) Agency relied on factors Congress has not intended it to consider. 2) Agency entirely failed to consider an important aspect of problem. 3)Agency explanation for decision runs counter to evidence. 4) Agency interpretation is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. HYBRID RULEMAKING 1) the relevant authorizing statute requires and agency to follow additional procedural requirements above and beyond those required in 553. But does not require the agency to go through all the requirements of a formal rulemaking. 2) Very rare but we see hybrids in environmental law. EPA is required to do a few more things than what is required in 553 but is not required to perform on the record hearings that a formal rulemaking would require. 3) Any additional requirements for the hybrid rulemaking must be identified in the statute CANNOT BE IMPOSED BY THE COURTS 4) Agencies can always provide more requirements than the statute, just cannot provide less. AGENCIES DEVELOPING NEW REGULATIONS 1) new proposed regulations are reviewed by the white house (office of regulatory affairs). This agency reviews the proposal to make sure the agency is not going beyond its statutory authority, make sure agency has provided an analysis if needed (cost/benefit analysis), and that it conforms w the presidents policy agenda. EXECUTIVE BRANCH (president) 1) Reviews new regulations as they are being developed. LEGISLATIVE BRANCH (congress) 1) Congress 2) often seeks to review regulations as well as the executive branch 3) if congress disagrees w a regulation, it has 2 choices a) Congress may enact legislation requiring the agency to do something different bc Congress is the source of agency authority, it can take that authority away. Problem: it is difficult to pass legislation, and legislation overturning the action of the executive branch agency is likely to get vetoed by the president bc if the white house has already approved the new legislation, it is unlikely that the president would make it easy for congress to repeal it. b) congress can limit an agency's resources if it does not like that agency's proposed legislation. Can even prohibit the agency from spending the money on things congress does not like even if those actions were previously authorized by a previous statute. 4) Congress can only pressure agencies into doing what they want through witholding funding and threatening to overturn a regulation w legislation, congress can only exercise oversighted agency activity. (efforts to try to pressure an agency to do something different but cannot actually force the agency to do something different). 4) Congress cannot overturn what an agency does, only can pressure them into doing something different JUDICIAL BRANCH 1) judiciary can also review regulations

FCC v. Fox TV

HARD LOOK REVIEW 1) agency has to show that they considered the relevant data or relevant policy matters and the agency must articulate a satisfactory explanation for their actions 2) must give reasons for their action to show reasonable decision making (agency) 3) agency's can change their interpretation of the statute from day to day but must provide a reason 4) agency just has to show that the interpretation is permissible under the statute, that there are new reasons for the new interpretation and the agency must believe the new interpretation is better than the old

Interpretative Theories

INTENTIONALISM: actual or specific meaning that Congress meant for a particular word or phrase to carry. PURPOSIVISM: the broad purposes of the statute. Looking at the text, legislative history, and circumstances at the time of enactment. LEGAL PROCESS PURPOSIVISM: when there is ambiguity in a statute, the court should determine what a reasonable legislator would have sought to achieve in the circumstances. IMAGINATIVE RECONSTRUCTION: asks the court to stand in the shoes of Congress, asking how the enacting legislature would have resolved the issue if it had envisioned it. TEXTUALISM AND NEW TEXTUALISM: textualists refuse to consult sources like legislative history and are committed solely to understand the text on its own. DYNAMIC INTERPRETATION: sees courts more as partners with Congress rather than as faithful agents of the enacting Congress in developing the meaning of statutes. Flexible interpretation: Figuring out the semantic meaning of the text is hard and there are things that the legislature has not thought of and it is difficult for the legislature to fix its mistakes. The court should find some way of dealing with the imperfections of the law.

Standards of Judicial Review

Must have judicial review available 1) does the ct have jur 2) is this claim reviewable? 3) is this the right time to raise this claim? 4) can this plaintiff raise this claim? have to answer yes to all of the questions QUESTIONS OF LAW 1) APA 706 2) ct is supposed to decide whether an agency act violated the constitution 3) want to make sure agencies are not exceeding the scope of their delegated authority Chevron Two STep 1) has congress ansewred the question in the legislation authorizing the agency action? If so, then the language of the statute controls. If not 2) the ct is to defer to the agency interpretation of the statute provided that the agency interpretation is in line with the statutory text HARD LOOK REVIEW 1) APA 706(2)(A) 2) Ct is to ensure that the agencies action is not arbitrary and capricious

Ordinary Meaning v. Technical Meaning

ORDINARY MEANING 1) cts approach words assuming their terms will be interpreted in accordance w the ordinary meaning. TECHNICAL MEANING 1) can overcome the ordinary meaning of the word 2) must have indications that the words were intended to have or acquired a technical meaning CASES Nix v. Hedden 1) Facts: should the ct use the ordinary meaning of the word tomato or the technical meaning (botanical meaning of tomato?) 2) Issue: is a tomato a fruit or vegetable 3) Ordinary meaning: bc tomatoes are served w dinner, they are vegetables as opposed to fruit which can be dessert. 4) Technical Meaning: botanical def would say tomato is a fruit 5) Holding: the ct confidently adopts the ordinary meaning

Agency Adjudication

OVERALL 1) vast majority of decisions are the result of adjudications 2) APA 551(7) Adjudication: agency process for the formulation of an order. i.e. agency can conduct an adjudication to decide whether an individual is eligible for disability or whether a given product should be subject to a given tariff. 3) license and permit proceedings are also adjudications 4) ORDER: the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking but including licensing 5) Adjudication focuses on the particular circumstances of a particular party such as a business or an applicant for a government benefit. 6) Any formal individualized decision by an agency is an adjudication FORMAL ADJUDICATIONS 1) Under 554, 556, 557, 558 of the APA 2) Section 554 of the APA provides that the requirements of a formal adjudication apply whenever an agency is required by statute to conduct an adjudication "on the record" after opportunity for an agency hearing 3) must have an on the record hearing this adjudication is formal 4) far greater set of procedural requirements than informal adjudication 5) REQUIREMENTS a) must provide more detailed notice to effected parties b) provide an opportunity to submit evidence and argument c) must have a hearing with a hearing officer/ just a hearing based on the record, can be a written submission INFORMAL ADJUDICATIONS 1) APA 555 2) Ancillary matters 3) applicant or individual whose rights are at issue must receive prompt notice of the denial of any application or request to the agency. Must give notice to the person who is denied and give an explanation for their denial. 4) requires two things a) give notice to the person whos application or request is denied b) give a brief statement for the grounds for denial.

Availability of Judicial Review

OVERALL 1) APA 702 2) Those who are adversely affected by an agency are entitled to judicial review. 3) APA 704 4) When there is no other adequate remedy then judicial review is proper. This is a catch all to help ppl get there day in ct. WHEN CONSIDERING A CT CHALLENGE TO AN AGENCY ACTION THERE ARE 4 QS TO CONSIDER 1) does this ct have jurisdiction? Some types of agency action are only reviewable in some cts. Statutes determine which cts have authority to hear which cause of action 1.5) the claim must be subject to judicial review APA 701 2) Is this claim reviewable by an act 3) Is this the right time to raise this claim? 3.5) cts do not want to hear a challenge against an agency that is too early or too late. Does it meet the statute of limitations. Statutes limit how much time someone has to bring a claim. A claim can be brought too early if the plaintiff does not go through the other administrative revenues before bringing the claim to court. Must exhaust administrative remedies before moving onto judicial review. 4) can this Plaintiff raise this claim?

Textualism Cases and Definition

Plain Meaning Rule: Statutes should be interpreted using the ordinary meaning of the language in the statute. Idea that the meaning of a statute is the plain meaning of the words applying the ordinary rules of grammar and usage. Focused on how we think about a document or statute v. presumptions we make about the meanings of specific words. Presumption that Judges start with this rule. TEXTUALIST PRINCIPLE: What Congress actually enacts is a group of words that goes through bicameralism and presentment so the text is the only thing that judges have the authority to weigh in on. Idea is that textualism should lead to more consistency in statutory interpretation and avoid juror biases. CASES 1) TVA V. HILL (textualist) a) facts: The TVA was building a dam and had received over $100 million for it from Congress. TVA was sued because construction of the dam would ruin the snail darter habitat and violate the Endangered Species Act. Ruled it violated the Act both under the plain meaning rule and legislative intent. b) Holding: The Endangered Species Act was designed to be expansive, so it should cover the snail darters. Even if this leads to an absurd result it is for the Legislature to figure it out not the Courts. The snail darter comes within the letter of the Act so they should be protected. Textualist. c) Dissent: The appropriations for the Dam are in conflict with the Endangered Species Act which demonstrates that the Legislature did not intend for the ESA to prohibit building the dam. Intentionalist. 2) UNITED STATES V. LOCKE (plain meaning rule) a) Facts: statute says file "Prior to Dec 31". Locke files on Dec 31st & loses his land. b) Issue: How should the court use statutory interpretation to understand what "prior to december 31st means?" c) Holding: The plain reading of the statute reads that the Lockes did not comply with the statute by filing on Dec. 31st. Deadlines are already arbitrary and really the only purpose you need is just to have a deadline. d) Rule: If the meaning of the word is clear, then it is clear. 3) NIX V. HEDDEN (ordinary meaning) a) Facts: P wanted to recover tariffs that the government required P to pay because P had imported tomatoes. P argued that P should get the tariffs back based on the fact that a tomato was a fruit not a vegetable. b) Rule: The ordinary meaning of words takes judicial precedent c) Holding: Tomatoes are generally considered to be vegetables by the average person. So they should be considered vegetables for the purpose of statutory interpretation. 4) BARBER V. GONZALEZ (technical meaning) a) Facts: Respondent was deported to the philippines after being arrested b) Issue: Can the respondent, who was a US national who committed two crimes in the US be deported under section 19a of the 1917 immigration act? c) Holding: Favoring the respondent/ D d) Rule: The court uses the technical meaning of the word entry because there was an absence of congressional intent "We must give technical words in deportation statutes their usual technical meaning" 5) MUSCARELLO V. UNITED STATES (ordinary meaning) a) Issue: Whether the phrase "carries a firearm" is limited to the carrying of firearms of a person or if it includes having a gun in the trunk or in a locked glove compartment of a car b) Holding: D is guilty c) Reasoning: Word "carry" in its ordinary meaning means to convey by vehicle. Court deemed the phrase carries a firearm in 924c1 applies to a person who knowingly possesses and conveys a firearm in a vehicle. uses a broad interpretation because the purpose of the statute is to prevent criminals from bringing their guns around. d) Dissenting Opinion: Ginsberg: the average person would interpret the phrase carry a gun to mean carrying a gun on them. We cannot expect an average person to know what people in the legislature argued when making the statute.

Linguistic Canons (from textbook)

Rules of association among words in a phrase or provision EJUSDEM GENERIS (of the same kind) 1) where there is a list, we only construe object/words that are similar in nature 2) Yates v. US: under ejusdem generis, fish did not fall under the category of "tangible object" bc it did not comply w/ the range of things in the list i.e. documents, records, the statute did not mean any tangible thing. NOSCITUR A SOCIIS (a thing is known by its companions) 1) often used interchangeably with ejusdem generis bc its so similar 2) interpret terms consistently with surrounding words 3) do not want statutes to expand their usual reach EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (the mention of one thing is the exclusion of another) 1) the term left out was meant to be excluded 2) can prove that the exclusion of a word was on purpose by showing similarity in the surrounding words PUNCTUATION 1) punctuation alone is rarely enough to have a successful interpretation 2) cts often have to decide if a comma modifies a subsequent phrase (u.s. v. X-citement video). If the comma does modifiy, then it extends to multiple things

Federalism (how state govt interact with federal govts)

STATE GOVT 1) not part of fed govt 2) distinct sovereigns if the govt system 3) local govt's are part of the states 4) state govt is not part of the fed govt 5) state gov must comply w due process clause but they are not subject to federal control CONSEQUENCES OF STATE SOVEREIGNTY 1) fed govt cant tell state govt what to do 2) i.e. fed govt wants to control urban air pollution, and think if state govt cooperated it would be easier to achieve. 3) fed gov cannot command state govt to do something 4) fed govt usually has to offer incentives for state cooperation LAWS 1) if a fed law and state law conflict, the fed law prevails 2) federal law can pre-empt a state law that forbids something that is legal under fed law SUPREMACY CLAUSE 1) fed govt can tell state laws what they cannot do but not what they must do

Interpretative Tools

TEXT: look directly at the words of the statute (Scalia is a textualist) TITLE: What information can you draw from the title of the statute STATUTORY PURPOSE/CONTEXT: what was the purpose of the statute? What was the purpose the legislatures had in making the statute? LEGISLATIVE INTENT/ HISTORY: look at senate and house reports reccomending the passage of the bill. Look at the reports surrounding the passage of the act.

Dictionary Act

Use dictionary definition unless the context says otherwise

Statute Background Info

WHY STATUTES? 1) agencies get their authority from the statutes enacted by congress STAUTE ENACTMENT 1) statutes are enacted through a process known as bicameralism & presentment (for a statute to be enacted, it must pass both houses of congress). Then the bill must be presented to the president which is the presentment 2) A bill must pass both houses to become a bill-- difficult bc house and senate often don't agree 3) bill passes both houses of congress (bicameralism) then gets sent to the president (presentment) for review. President can approve or veto. Once vetod, goes back to congress. Bill can now only be passed if it passed both houses with 2/3 majority, this is called a "veto override" bc the president already vetod it.