Legislation And Regulation Outline PDF

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Mortenson's legislation and regulation outline. Very comprehensive and detailed; use this to study for the final exam. ...

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LEG REG FLOWCHART Statutory Interpretation ................................................................................................................... 1 Theories of Interpretation ........................................................................................................... 1 Methods of Construction............................................................................................................. 2 Determining Intent ...................................................................................................................... 4 Agency Action ................................................................................................................................ 5 Is the delegating statute Constitutional? ..................................................................................... 5 Did the agency provide the right procedures? ............................................................................ 6 Did the agency read the statute correctly? CHEVRON Framework .......................................... 8 Was the action reasonable? ......................................................................................................... 9

STATUTORY INTERPRETATION Theories of Interpretation Textualism a. Progressive Insurance– says you have to use the word “responsible,” so using the word “liable” makes the waiver invalid. b. Brogan– no lying to federal agents includes just a bald denial of responsibility c. Marshall– “mixture” of LSD includes weight of blotter paper d. Sinclair– language is clear that there’s no re-filing under Chapter 12 after you’ve filed under Chapter 11, so that’s what the statute means Purposivism/Intentionalism a. Holy Trinity– overall b. Riggs v. Palmer– can’t let murderers of decedent inherit from the will, even though statute tells us to let that happen c. CUMMINGS in Marshall– legislative history shows Cong. wanted LSD measured pure Imaginative Reconstruction a. Riggs v. Palmer– legislature would’ve excluded murderers if they had thought of it b. POSNER in Marshall– legislature would mean to c. STEVENS in Brogan– Congress wouldn’t include the exculpatory no if they had thought about it d. Bock Laundry– Congress obviously didn’t think of asymmetrical application of FRE 609 in civil cases, so they must’ve meant only to apply it to civil cases Dynamic Interpretation a. Bob Jones– the IRS interpretation that “charitable” includes a requirement that it be in the public interest is now incorporated into the statute through the statutory interpretation.

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Methods of Construction I.

II.

III.

Semantic Canons a. Absurdity– statutes should be construed to avoid absurd results i. Bock Laundry– FRE 609(a) literally reads to say that civil ∆ can impeach π, but not the other way around. That’s absurd 1. Note a MAYBE: Once we find an absurdity, how do we correct it? In Bock Laundry, majority says only apply FRE 609(a) to criminal cases; Dissent says apply it to civil π’s and ∆’s and criminal ∆’s. b. Ordinary Language i. Nix v. Hedden– tomato is a vegetable b/c of common parlance ii. Muscarello– “carry” includes “convey in a car” c. Ejusdem Generis– General words after a list are construed in light of the list i. D d. Expressio Unius– if it’s not listed, it was meant not to be included i. TVA v. Hill– no ESA exception for projects already begun. Hardship exemptions under §9 (private), but not §7 (fed. agencies) e. Noscitur a Sociis– i. Babbitt– “harm” includes habitat modification ii. Babbitt dissent– “harm” requires direct action b/c all the others in the list are direct f. Scientific language i. Marshall ii. Rejected in Nix. g. Scrivener’s Error– courts will correct typos. i. Incredibly rare. Locke– Court won’t second-guess deadline of “before 12/31” where ∆ thinks it should’ve been “on or before 12/31.” Structural Interpretation a. Surplusage i. Babbitt– Permit provision (§9(a)(1)(B)) lets secretary give permits for incidental takings, which means incidental takings are allowed; gov’t purchase provision (§5) lets gov’t buy land to protect habitats, maybe that means there’s not a general ban on habitat modification b. Cross-statute expressio unius i. Babbitt DISSENT– gov’t agencies can’t modify habitats, means that they know how to ban habitat modification when they want to ii. Marshall– PCP is measured by pure drug, meaning all other drugs, including LSD, must be measured by mixture c. Whole Code Interpretation i. Brown & Williamson– Congress couldn’t have meant for FDA to ban tobacco b/c there’s so much other tobacco regulation ii. Mass v. EPA– rejects EPA’s argument that Clean Air Act should be read in light of more specific greenhouse gas regulations iii. Montana Wilderness– Colorado Wilderness Act suggests that Alaska Land Act applies nationwide, and that’s the kicker for the court Substantive Canons 2

a. Avoidance– courts will interpret statutes to avoid making Constitutional decisions i. Zadvydas– possibility of a DP problem  SCOTUS reads a 6 month detention limitation into deportation statute. b. Lenity– tie goes to the criminal defendant i. NOTE: This is very rarely employed. You must exhaust all other tools first. ii. Santos– lenity employed to construe “proceeds” as just “profits” instead of “receipts” for money laundering statute. c. Federalism Clear Statement– can’t mess with the state/federal balance of power without being explicit i. Gregory v. Ashcroft– Age Discrimination in Employment Act can’t be read to keep states from making age limitations for their judges absent a clear expression of intent to fuck with federalism. d. Stare Decisis– there’s a super-strong presumption of stare decisis for statutory interpretation. i. Flood v. Kuhn– Baseball antitrust exemption remains in force even though it’s clearly interstate commerce.

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Determining Intent I.

II.

Legislative History a. Places to find history i. Sponsor statement ii. Hearings iii. Markup Session iv. Committee Report v. Floor Statements vi. Floor Amendments/Rejection vii. Conference Report viii. Signing Statement / Veto Statement b. Critique of Legislative History i. Constitutional Argument– only the text got passed through bicameralism and presentment ii. Incoherence– There is no such thing as legislative intent iii. Indeterminacy– You can’t tell what intent is iv. Willfulness– Authorizes extra leeway to willful judges to make law for themselves under cloak of “legislative history” v. EXAMPLES: 1. Blanchard DISSENT– A teensy note in a Senate Report that no senator wrote or read becomes Supreme Court precedent. 2. Sinclair– Plain text doesn’t let Chapter 11 farmers re-file under Chapter 12, but the Conference Report suggests it does. Plain language trumps. 3. Montana Wilderness– Circuit Court files two opinions based on legislative history: First, that statute only applies to Alaska, then that it applies nationwide (after looking at the Conference Committee on a subsequent act). c. Examples: i. Blanchard– Senate Report shows that “reasonable attorney fees” can go above the contract price. That report cited a circuit court 12-factor test with approval, and then 3 cases that did award higher-than-usual fees. ii. Moore– Congress meant to include self-employed miners for the Black Lung benefits presumptions Subsequent History a. Generally i. Montana Wilderness II– b. Congressional silence/acquiescence i. Bob Jones– Congress didn’t do anything after IRS interpretation of 501(c)(3) to exclude nonprofits “against the public interest,” that means Congress acquiesced to that interpretation.

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AGENCY ACTION Is the delegating statute Constitutional? I.

II. III.

IV.

LEGISLATURE: Nondelegation–Is there an intelligible principle? Schechter a. The answer has only been “no” twice, both in 1936. Schechter; Panama Refining b. But still need to explain why there’s an intelligible principle: i. “Most adequately assures, to the extent feasible, that no employee will suffer material impairment” is intelligible principle. Benzene Case. ii. “Adequate” margin of safety, “requisite” to protect the public health is an intelligible principle. Whitman. 1. NOTE: SCALIA says that this means Cong. hasn’t delegated legislative authority because that would violate I.1 Vesting. 2. STEVENS says it’s legislative but that’s fine. LEGISLATURE: Legislative Veto– It’s unconstitutional for Congress to give itself any authority that bypasses bicameralism and presentment. Chadha. EXECUTIVE: Removal Power– Does the statute take away too much of the president’s power? a. Did the removal restrictions harm the President’s ability to execute the laws? Morrison v. Olson i. Main consideration is the function of the office, but not the only consideration. Morrison v. Olson. ii. Presumption of removal restriction on quasi-judicial officers. Even if Congress says nothing, we presume prez. can’t remove at will. Wiener iii. Examples–Can create removal restriction 1. FTC Commissioner. Humphrey’s Executor. 2. War claims Commissioner. Wiener. 3. Special Prosecutors. Morrison v. Olson. iv. Examples–Can’t create removal restriction 1. Postmaster. Myers. b. Did the removal restrictions create two layers of insulation? There can’t be two layers of removal restriction. Free Enterprise v. PCAOB. JUDICIARY: Usurp Judicial Role?–Agencies have the ability to make adjudications of even common law actions in certain circumstances. Schor a. Public right (good) or private right (bad)? b. Scope of authority limited (good) or broad (bad)? c. Do AIII courts retain authority (good) or not (bad)? d. Expertise e. Legislative efficiency

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Did the agency provide the right procedures? I.

II.

III.

Due Process?– you need to provide adequate process when there’s a life, liberty, or property deprivation a. Was property deprived? i. Need to have a valid interest in the thing you’re losing. Roth (no interest in getting hired) b. Was process given? i. Use the Mathews balancing test 1. Private Interest 2. Alternative Procedures 3. Public interest ii. Test applied: 1. Doesn’t violate DP to terminate Social Security disability checks before a hearing. Mathews v. Eldridge 2. Violates DP to terminate welfare checks before a hearing. The hearing must have presentation of evidence, confrontation of witnesses, subpoena, oral presentation, notice period, retained attorney. Goldberg v. Kelly. OIRA– Needs to get the OK from OIRA first. Exec. Order No. 12,866 a. Did it go through the right motions? §1(a) i. Review existing regulations; ii. Identify alternatives iii. Cost/Benefit Analysis b. Is it a “significant regulatory action”? §3(f)(1) i. More than $100M or more on the economy; OR ii. Adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, (etc.) c. If so, it must… §6(a)(3)(B) i. Submit a draft of the regulatory action to OIRA ii. Assess the costs and benefits d. OIRA must sign off on it, or else it’s not law. §8 APA– Courts don’t require anything more than what’s set out in the APA. Vermont Yankee. a. GENERAL NOTES: i. Doesn’t matter which procedure courts take. Chenery II. ii. Courts need something to review, so the agency must at least develop a record. Overton Park; Nova Scotia (hard look review) b. RULEMAKING. General or particularly applicable decision with future effect. §551(4)-(5) i. Formal– doesn’t exist (but if it did, it’d set that out in the organic statute, and same requirements as formal adjudication) ii. Informal– Notice and comment process. §553 1. First, the agency must give notice of proposed rulemaking on the Federal Register. §553(b) a. Time, place, nature of the public rule making proceedings b. Reference to legal authority 6

c. Either terms or substance of the proposed rule 2. Then, must give interested parties opportunity to comment. §553(c) 3. For the final rule, the agency must give a concise general statement of the basis and purpose. §553(c) a. This can get pretty big, though. Nova Scotia. c. ADJUDICATION. Everything else. §551(6) i. Formal– will follow the formal procedures only where the organic statute says it should. 1. Must offer… §554(c) a. Submission and consideration of facts, arguments 2. The adjudicator must be impartial. §554(d) a. Can’t talk to parties b. Can’t participate in the investigation, or be beholden to such people 3. The procedure ends up looking pretty trial-like. §556 4. Presiding adjudicator submits its initial decision. §557(b) a. That’s the agency’s decision unless it’s appealed. §557(c) b. The agency can submit a final decision of its own. §557(c)

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Did the agency read the statute correctly? CHEVRON Framework I.

II.

III.

Does it qualify for Chevron deference? Mead a. Congress has conferred upon the agency authority to make interpretations with the force of law; AND b. The agency exercised that authority c. This includes i. Formal adjudication and informal rulemaking. Mead. ii. Informal adjudication that is sufficiently legislative or judicial that it shows a requisite level of seriousness or formality (TOC test). 1. Example: Social Security Administrator’s order on an interstitial legal question; related to expertise of agency; question is important to administration of statute; careful consideration. Barnhart. d. Doesn’t include iii. Informal adjudications made without any indicia of formality and/or thoughtfulness. Mead. If answer to (a) is yes, we apply the Chevron two-step analysis a. Has Congress actually addressed the question? i. Examples where they have: 1. Congress was explicit that FCC’s authority to “modify” telecommunications filing requirements doesn’t include the ability to get rid of the requirement. MCI. 2. Congress didn’t mean tobacco to count as a “drug” because to do so would contravene other statutory regimes and require a full ban on cigarettes. Brown & Williamson. a. Note a MAYBE: This could be a “major questions” exception ii. Examples where they haven’t: 1. Whether a “stationary source” means an entire facility or just one smokestack is not explicitly addressed by Congress in the Clean Air Act. Chevron. iii. NOTE: The calculus may change if Chevron is inconsistent with a substantive canon. 1. As a general matter, the constitutional avoidance canon trumps Chevron. DeBartolo. 2. Examples: a. NLRB interpretation of handbilling as “coercion” runs up against 1A, so interpretation is invalid. DeBartolo. b. BUT, HHS interpretation not to give $ to clinics that even refer to or counsel for abortions doesn’t trigger this avoidance b/c it straight-up doesn’t violated 1A or 14A DP. b. If they haven’t spoken to the question, is the agency’s interpretation based on a permissible construction? i. In short, defer if it passes #1. If answer to (a) is no, we defer to the extent the action is persuasive and worthy of deference. Skidmore. a. Think of it as “benefit of the doubt” review.

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Was the action reasonable? IV.

V.

Is it reviewable? a. Anyone suffering a legal wrong b/c of an agency action (which includes failure to act, §551(13) can get judicial review. §702. b. To be reviewable, action must be… §704 i. Made reviewable by the organic statute; AND ii. Be a final agency action; AND 3. Can’t be preliminary, procedural, or intermediate iii. Must have no other adequate remedy c. NOTE: Courts may only review agency decisions based on the agencies’ stated reasons. Chenery I i. This also means that an agency can’t apply a standard sub silentio. The stated rule an agency follows is the one it must follow. Allentown. If so, it’s reversible if… a. GENERALLY: We ask, in various forms, whether… i. The agency had the authority under the statute to make this decision ii. Whether exercise of that authority was reasonable b. Agency action was unlawfully withheld or unreasonably delayed. §706(1) i. Court can compel agency action c. Action was arbitrary and capricious. §706(2)(A) i. Things that are a/c 1. Rulemaking a. Failing to inform interested parties of important facts. Nova Scotia b. Failing to address important comments in informal rulemaking. Nova Scotia. c. Entirely rejecting an option that satisfies your statutory goals (i.e., rejecting airbag requirement for no good reason). State Farm. 2. Adjudication a. Making a decision with no record. Overton Park b. Denying petition for rulemaking to regulate CO2 where EPA has determined CO2 is dangerous. Mass. v. EPA ii. Things that are not a/c 1. Failing to prosecute violators of the organic statute. Heckler. d. Abuse of discretion. §706(2)(A) e. Not in accordance with law. §706(2)(A) f. Contrary to Constitutional right. §706(2)(B) g. In excess of statutory jurisdiction/authority/limitations. §706(2)(C) h. [RARE] Without observance of procedure required by law. §706(2)(D) i. But remember: The APA is all the procedure you need. Vermont Yankee ii. Except that in informal adjudication, you need to develop some kind of record (hard look review). Overton Park. iii. And the “general statement” requirement of §553(a)(3) is violated where agency ø disclose scientific data it’ll be using to make its decision. Nova Scotia.

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i. [RARE] Unsupported by substantial evidence. §706(2)(E) i. This is a relative standard– you look to the whole record to determine substantial evidence, not just view whether agency made the case in isolation. Universal Camera ii. Examples: 2. No rational factfinder could find management lacked reasonable doubt required to vote the union out where 6 employees said ø support union, 2 said union’s not worth the dues, and a few guess that the union would lose in a poll. Allentown.

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