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Administrative Law
University of Pennsylvania School of Law
Zaring, David T.

Administrative Law Outline (Zaring Spring 2016)
Statutory Interpretation
Class #1: January 12, 2016
Vehicles in the Park
Motorcycle should be counted as a vehicle; it’s motorized. Legislative intent: a kid could be struck by a motorcycle, in the same way that a vehicle can. Motorcycle loud like vehicles. Unlike a bike, because the bike cannot accelerate to the same extent as a motorcycle.
Tank put in the memorial car
On behalf of Riverside Park (how to distinguish precedence)
Children are still in danger because they might run into it and not know what it is.
Fully functioning tank could become dangerous if gasoline is provided. Tank just needs gasoline, like motorcycle that just needs to be turned on. Then will become noisy and dangerous.
DOJ of Riverside – if a police officer tickets doctor
Hart v. Fuller
Fuller – legal realist (say that the way the court decides the case is when cert is granted. These judges knew how they were going to vote.)
Hart – looks of questions of legal interpretation are really easy (truck driving through the park.) There are other, harder, cases.
Need Rules of Recognition – depend on the fact that there must be a police officer that gives a ticket, and a justice that decides whether it was alright or not.
Whether the law is just (Hart v. Fuller)
Hart says North Korea-like government is okay because it has Rules of Recognition
Fuller looks at morality of the laws
What to do with something that is different from something those that passed the law
Players: courts, legislatures, legislative history and department of justice
Looking at purpose of the statute and things like precedence as well.
One species of public law. Mediates ways in which citizens and governments are involved.
How agencies are permitted to interact with people and amongst themselves
Organic Statute of the Agency, Constitution and the Administrative Proceedings Act (rules of the road for administrative agencies); ways agencies are constrained – how they respond to judicial review
An agency’s organic act is the law that created the agency. An agency’s statutory mandate may be contained in its organic act, or it may be in a separate law.
Yates v. US (2015)[online] : SCOTUS
Historical Facts: Yates caught fish on his vessel. The government agent on the boat put them in boxes and told Yates that they will be seized in a government investigation. Yates instead threw the fish overboard and caught bigger fish. He was charged with falsifying information in a government investigation.
: Are fish considered “tangible objects” for the purpose of the statute that makes it a crime to destroy or conceal tangible objects to impede a governmental investigation, even though the term is undefined and exists in a statute that largely refers to record-keeping documents? [Is a fish a tangible object?] 18 U.S.C. §1519 – Destruction, Alteration, or Falsification or Records in Federal Investigations and Bankruptcy
: while fish are considered tangible, the statute doesn’t pertain to fish. It pertains to the financial situation (legislative intent)
They looked at the headings and title of the statute
Where it sits in the United States Code
This statute is just not about this kind of activity
They looked at broad languages versus specific language (falsify/put false information in)
In favor of leniency (Rule of Lenity – because criminal convictions are serious, if convictions are made based off of ambiguous statutes, it suggests that criminal statutes should be interpreted narrowly. Gives favor to the defendant. This is another reason to interpret “tangible things” as narrow, and not including fish.)
Canons of Statutory Interpretation
What is a canon of construction?
A Rule of Thumb used to construct a statute (that courts use to construe legislative directives)
Noscitur a sociis – a word is known by the company it keeps
Ejusdem generis – general words are usually construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
Alito’s Concurrence: wants to interpret the statute on narrow grounds, looking at the list of nouns, verbs and the statute’s title.
: how is a fish not a tangible object?
Text versus purpose – many think that we should focus on the text, and not legislative history.
Purpose – legislative history
We first start with the text of the statute, only then you look at purpose.
Policy preferences should not play a role in statutory interpretation.
Summary of Yates v. US:
The Court asked what is a “tangible object”?
Begin with the dictionary, and “plain meaning.”
Put the term in the statutory scheme
Consult the caption of the part of the statute being interpreted
Consider canons of construction:
“a word is known by the company it keeps.” (noscitur a sociis)
Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”
The “rule of lenity.”
Class #2: January 14, 2016
The definition of agency is in 5 U.S.C. §551(1). Definitions
“agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include…
Congress, courts of the US, governments of the territories of the US, …
Agencies act in one of two ways – by issuing rules or by issuing orders after adjudications
King v. Burwell (2015)[online] This is a case about statutory interpretation. When should courts defer to agencies? Some questions are too important to defer to agency. This is too important, so no Chevron deference. This is the regular standard.
: whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange.
: they are available in States that have a Federal Exchange.
(1) whether the statute is ambiguous, and (2) whether the agency’s interpretation is reasonable.
Three things must be true (1) the individual must enroll in an insurance plan through “an Exchange,” (2) that Exchange must be ‘established by the states,’ and (3) that Exchange must be established under the law.
Every time the Act uses the word ‘Exchange,’ the definitional provision requires that we substitute the phrase ‘Exchange established under section 18031
It says something about when courts should defer to agency
King v. Burwell says that there are some cases that are too important to believe that we must apply deference to an agency’s interpretation.
The way that the tax scheme worked was too important to defer to the agency.
Instead they applied multiple other tools of statutory interpretation
Sibelius v. National Federation
Requirement that they purchase insurance is not unconstitutional if it’s seen as a tax.
“An exchange established by the State”
They aren’t eligible for tax exchange (we don’t need a break on taxes, so we don’t want to purchase health insurance.”
Virginia is a federally set-up exchange
Court needs to review IRS decision à question of judicial review of a government agency.
Chevron consists of three stems
(0) Does Chevron apply at all?
(1) is the statute ambiguous?
(2) if so, is the agency’s decision reasonable?
In Burwell, the Court says that there are cases where Chevron doesn’t apply. The “too big a deal” exception (this question is too important to be left to an agency”
Implications à if it doesn’t hold for those with federal exchanges, then many people would lose their healthcare (“Death Spiral” – looking at the real world implications.)
This decision creates funding federal exchanges that cannot be reversed
Statutory interpretation mechanisms
Scalia’s focus on the text (inserting interpretation in the plain language of the text is empowering judges, and taking away power from the legislature)
Majority looked at what words in other parts of the statute look like
Canon of Surplusage – words are not there for no reason
When should courts defer to an agency? Not in this case.
Much legal application requires statutory interpretation by courts and regulations.
In Yates regarding what is tangible object: (1) plain meaning, (2) put them in statutory scheme, (3) caption of part of the statute, (4) cannons of construction (in the company it keeps)
Speluncean Explorers Case by Lon Fuller [Basic Approaches to Statutory Interpretation] Historical Facts: landslide that traps them in. Doctors said they will not survive for ten days. They roll die for them. “Whoever shall willfully take the life from another shall be punishable by death.” Lower court judge and jury ask sovereign for clemency because they believed it was unfair.
Trupenny, C.J. – [Textualist] statute is clear. Focuses on the language because there is some awareness of institutional competence and the judicial role.
Some courts, like the DC Circuit, appeal to Congress to change the language of a statute if it is unartfully drafted, in their opinion.
– in the state of nature (the cave) they have a contract and context, which is important in specific situations (moral and just agreement where people have the same information. Purpose of the laws of the commonwealth if it does apply (legislative intent)
An IMPLIED EXCEPTION, we look at precedence.
– rejects Foster’s approach but decides to withdraw from the case. He can’t withdraw his emotional investment (too emotionally invested). Does say law of nature is blurry. When are we not in the state of nature? Slippery slope à if we agree to this, what else will we agree to? If we allow an exception to the murder statute, where are we going to stop?
– [Textualist] role of the courts. Judges don’t decide right and wrong.  (What’s our relationship with the executive? We want to interpret the law as written.
Handy – [Realist] cares about public opinion. 90% of the commonwealth don’t want to hang them. He looks at common sense. Chief Executive will probably carry out the death sentence. Looks at policy. If we don’t do this, no one will. Need to figure out what the real answer is, and get there. There is one rule à do the right thing. Doesn’t take precedence into account.
One of the questions for judges when they’re interpreting statutes – the right results in a particular case or when applying things more generally (long-term vs. short-term problem)
The Constitution and the Administrative State
Article I and the Non-Delegation Doctrine
Class #3: January 19, 2016
The Non-Delegation Doctrine is one of the foundational doctrines of administrative law
It’s only been invoked to invalidate statutes twice.
Why is the doctrine used when it’s applied so rarely?
5 U.S.C. § 551(1) (1). Definitions.
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia; or except as to the requirements of section 552 of this title—
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory
One of the things that APA does is that it provides for judicial review of agency actions
Some things that the President does should be subject to judicial review, while others should be exempt.
This might be a separation of powers issue.
The White House is exempt from FOIA (and the APA’s requirements for adjudication of disputes.)
This exemption is done even though the language of the statute itself doesn’t say that the White House shouldn’t be considered an agency.
Another example of statutory interpretation –
The APA is defined so broadly, that courts have found some exceptions to what constitutes an agency.
Some of the bases for regulations themselves and the basic justifications for agency action and regulation:
Administrative Law consists of those legal principles that define the authority and structure of administrative agencies, specify the procedures agencies must follow, determine the validity of administrative decisions, and define the role of reviewing courts and other organs of government in relation to administrative agencies.
Administrative law embodies three bodies of law: (1) constitutional law; (2) statutory law, including above all the Administrative Procedure Act (APA); and (3) a form of federal common law, embodied in judicial decisions that do not have a clear constitutional or statutory source.
Administrative agencies are engaged in regulation.
Regulatory agencies develop and enforce prohibitions or obligations with which private firms and/or individuals must comply.
Administrative regulation as a response to market failure in these four areas – environmental, safety, health and consumer regulation.
The need to correct for ‘externalities’ or ‘transaction costs’
Collective action problems
When individual rational private behavior leads to collective or public harm
Public Goods – nonrivalrous consumption (consumption by one person does not create scarcity or preclude consumption by others) and nonexcludability (the good benefits a group of people and no one person or subgroup can easily, or at all, be prevented from enjoying it.)
Public goods won’t be available because of the high transaction costs
Free Riders Problem
Prisoner’s Dilemma
The need to compensate for inadequate information
The need to control monopoly power
Less secure economic grounds
The need to control ‘windfall’ profits
Winfall profits may result from sudden, generally unanticipated increases in commodity prices. The profits will flow to any firm that holds a stock of that commodity or controls a nonduplicable low-cost source of supply. The profits will flow to any firm that holds a stock of that commodity or controls a nonduplicable low-cost source of supply.
If they happen to be “at the right place at the right time” (those that profit, then this might be a case for regulation.
The need to eliminate ‘excessive’ competition
Too much competition – if rices are too low most of the competing firms will go out of business.
Problem with predatory pricing
The need to alleviate scarcity
Agency problems
If someone else is responsible for purchasing something on behalf of the buyer (such as medical insurance)
Noneconomic justification
Redistribution, Nonmarket or collective values, Disadvantage and caste, Planning, Paternalism
Regulatory Tools
Price controls, screening or licensing, standards, fees, taxes, grants and subsidies, provision of information, cooperation, moral suasion, guidelines, technical assistance, statements of best practices, awards and the like.
Non-market bases for regulation:
Paternalism – the problem of health insurance
Redistribution – through regulation, e.g. blue laws
High taxes on the rich
Planning – defense industry & CFIUS (Committee of Foreign Investments in the United States)
Defense industry that depend on government contracts.
Regulations re how these contracts are distributed is decided by agencies
CFIUS decide things like who is allowed to build a truck company in China
Department of Defense (doesn’t want us to sell any American technologies abroad) vs. Department of Commerce (that loves those kinds of things)
Social mobility – civil rights

EPA changes the NAAQs, it costs a lot of money and changes in the economy.
: the construction of the Clean Air Act on which the EPA relied was an unconstitutional delegation of power because there was no intelligible principle on which it was based (some criteria for letting EPA decide.)
: the DC Circuit thinks that if Congress hasn’t set up an intelligible principle, the EPA could have. But it didn’t.
What would have been an intelligible principle?
Maybe if the EPA could have established a cost-benefit analysis (even though this is not required for the Clear Air Act)
But they wanted more constraints on the agency.
What the Clean Air Act lists as guidance for the EPA is not guidance at all
The non-delegation doctrine forces Congress to be more explicit about what it wants the agency to do.
“Say more!”
When deciding whether to take an administrative law case, SCOTUS asks whether this case is “big deal enough” to take.
Whitman v. American Trucking Associations, Inc. (2001)[pg. 69] – an intelligible principle is required and an agency cannot cure an unlawful delegation by providing a narrow interpretation
: overrules the Circuit Court. Unanimous Supreme Court that thinks this is enough guidance for Congress to give an agency to constrain its discretion about regulating air quality.
There’s no real reason to give the EPA a chance to fix itself. Further than that, there is an intelligible principle with the word “requisite” so that it’s within the confines of the power that can be delegated by the EPA.
The intelligible principle is the rule.
: Congress must lay down by legislative act an intelligible principle to which the person or body authorities to act is direct to conform.
We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction.
Scalia says what “requisite” means – sufficient
The Court goes through delegations in the past that it has approved and that have been broad (in the public interest, where the agency was asked to promote “fair competition,” prices that will be “generally fair and purposeful.”)
That instruction has been sufficient in the past to constrain an agency’s discretion
The rule is that Congress has to come up with an intelligible principle
The agency cannot save an unconstitutional delegation (an agency cannot come up with a way to make it constitutional by coming up with its own constraints)
An agency cannot cure an illegal delegation from congress.
Immigration & Naturalization Service c. Chada (1983)[pg. 77] – there can be no one house rejection of any form of agency action.
Historical Facts: In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General. Chadha had stayed in the U.S. past his visa deadline. Though Chadha conceded that he was deportable, an immigration judge suspended his deportation. The House of Representatives voted without debate or recorded vote to deport Chadha. (Oyez)
: Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine? (Oyez)
: The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the “explicit constitutional standards” regarding lawmaking and congressional authority. (Oyez)
Presidents of both parties didn’t like this legislative veto.
This is a case that’s about a tool that Congress started using in the absence of constraining statutory language to exercise control over agency action.
Does he get a hearing? Does he have a right to make his case?
The process this guy was afforded was nothing. The House of Representatives didn’t say anything except for “deported!” It didn’t give any basis for its decision.
The Court:
Majority is concerned about a separation of powers circumvention
We know what Congress can do – it has the power to make laws. It makes laws by passing them through both houses and presenting it to the executive. Here neither of these things happened – there’s no bicameralism, and there’s no presentment.
There is pretty explicit language in the Constitution that when Congress acts, it should do so bicamerially and it failed to do so, which is a violation of the Constitution.
There’s a textual analysis here – the Constitution lists the times that the House can act alone, etc., but nowhere in the Constitution does it say that the House can veto decisions made by the executive branch.
This suggests that the Court doesn’t need to think about whether this is a good idea or not – just that this is in the Constitution.
The dissent is a lot more functional – this is a way that Congress has to oversee efficiency and quickly agency action. Quick one-House method for reversing particular decisions made by the administrative state.
We want that! That makes our administrative state more accountable.
The Court isn’t interested about talking about whether this is a good idea or not.
As a matter of black letter law, Chada stands for the fact that the legislative veto is not allowed.
Since Chada, Congress has been looking for ways to grant itself power to review agency action.
Congressional Review Act. 5 U.S.C. §801-08
This is just a fast-track instruction to Congress instructing it to reverse a rule.
It’s only been applied one time.
This is supposed to get Congress involved in major rules, but it hasn’t been too effective.
Requires every federal agency to make a report to Congress every time the agency wants to adopt a new rule, and gives Congress 60 days to introduce a “joint resolution of disapproval,” that, if passed, must be presented to the President. Until the 60 days expires, the agency rule cannot take effect, and, if the joint resolution is approved by the president, or the president’s veto is overridden, it cannot take effect at all.