I. How to Approach an Administrative Law Question:
1. Identify the agency action or actions.
o What is the agency doing here?
o Focus on each individual agency action
2. Then answer two questions:
i. Is the action rulemaking or adjudication? On exam, will be either R or A under both the Londoner/Bi-Metallic definition and under APA definition.
§ Note: Legislatures can’t circumvent the r/a distinction by labeling one or other. Must look at the action and decide if it fits its label.
§ Under Londoner/Bi-Metallic?
ú Rulemaking: When agency makes prospective-looking decision that affects a large number or persons, and where that decision is made on generalized and/or statistical facts
· Bi- Metallic: Constitution does not require notice or opportunity to be heard prior to rulemaking
o Bi-Metallic Investment Co v. Colorado (US 1915) – Court found that state taxpayers had no constitutional right t be heard before CO tax commission ordered an increase in the valuation of taxable property in Denver by 40%.
ú Adjudication: When agency makes retrospective decision that affects one person or small groups of people, and where that decision is made relying on individualized facts
· Londoner: Under DP – an agency can only adjudicate after providing (1) notice to affected people and (2) an opportunity for them to be heard
o Londoner v. Denver (US 1908) – Court found violation of 14th Amend. DP when Ps were denied right to at least a brief chat before being assessed for road paving in their neighborhood for which they had no choice.
· “Hearing” does not have to include cross-examination
§ Under § 551 of the APA?
ú Rulemaking: § 551(5) – An agency process for formulating, amending, or repealing a rule
· Rule – § 551(4): Whole or part of an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency
ú Adjudication: § 551(7) – An agency process for the formulation of an order
· Order – § 551(6) – The whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing
ii. Is the action formal or informal?
§ Determine this under the APA framework – locate your quadrant on the 2×2 box
§
Doctrine – Art. I, § 1 of Constitution: Gives all legislative power to Congress
o General Idea: There are limits to the extent that Congress can delegate its work in the legislative branch over to bureaucrats in the executive Branch (Benzene)
§ It’s illegal for agencies to do more than Congress delegated to them to do; going beyond Congress’s will is ultra vires (not in accordance w/ law)
§ What does a statute mean?
ú Clear Statement Rule: SCOTUS wants Congress to be unambiguously clear before it will assume a particular statutory meaning was contemplated
ú Legislative history is considered as part of what the statute means, especially when it’s uncontested and clear as to Congressional intent
§ Federal non-delegation doctrine is WEAK.
ú Some like Rehnquist would revive it, but generally, it’s very weak.
o Three Functions of Nondelegation Doctrine (per Rehnquist’s Dissent in Benzene)
Contingency Rationale à Ensures that important
