American Public Law Process Outline

APLP Grunewald Spring 2014

Federalist 45 – Madison

New government will not have any more power; just a more effective. Goals of new administrative power is for the public good; and the public good is more important than state sovereignty. But still need to worry that federal government will take this ceded power form the states and use it to grow and take more – same constitution; same issues. Madison said this wont happen. Wrong.

Policy is power; Public inters v private choice

Admin Law – power granted to the executive, by the legislature, checked by Judiciary. Wilson expanded executive power with AA. Reponses to Great depression expertise in administration. Legal basis for this administrative age was vague, and only implied; no direct authority –Article II and Article III

Public interest v/and Public choice – Want uniformity, states are not doing the job, tort law may not be good enough to curb industry actions or compensate those affected by industry actions

Legislative control; Non-delegation Test – (protect sep of powers in constitution) congress can delegate power to AA so long as it gives the AA an intelligible principle to guide and limit in exercising that power; guide and limit exercise of power. Whitman Trucking. Skepticism – separation of power and abdication of responsibility – Schechter and Carter Coal; Yakus – broad delegation of power is ok “generally fair and equitable prices” so long as still accountability to congress by delegating to the executive branch, and not straight to industry. Whitman –“Just and reasonable, as public convenience, interest or necessity require”; need broad discretion because rulemaking requires it; congress can do job with out being able to delegate its legislative authority; also legislative power belongs to legislature, they should be able to give it away; but some legislative power may not be delegable because they are too much like lawmaking. Maning of Vested and Legislative. Benzene – court could have used non delegation principle to toss enabling act as unconstitutional; instead just used it to limit the scope of agency interpretation of the powers that were delegated to OSHA; Rehnquist had 3 theories for non delegation doctrine purpose – ensure important policy choices were made by congress; to provide a guide to the executive; and allow courts to test whether the agency adhered to what congress wanted AA to do –means congress must retain responsibility

Partial delegation – Sep of Powers – Chada – legislative veto Unconst– fails constitutional bicameralism for legislative acts; Congress has Constitutional Review ACT; Reins act Clinton – line item veto Uuconst; Impoundment

Controls; Fed 51- who guards against the guardian? the three branches will protect against an one getting to big and powerful – ambition vs. ambition. Incentives and sep of powers. public choice checks public interest will check that. Bad checks bad. failed to consider delegation, size of executive, political parties

Unconstitutional v Extra Constitutional

Appointment power in is Art II sec 2 – pres can appoint principle executive officers with advice and consent of senate. For inferior officers, congress can decide if it wants to have say or leave it to the executive; Buckley – congress limits scope the officers authority and can place some standards; no congressmen or judges as executive officers – separations of powers and incompatibility clause

Removal (sep of powers issue depending on what type of power official has) is extra constitutional. Implied in constitutional from power to appoint? Meyer Art II sec 3 – president has power to ensure laws of US are faithfully executed Meyer and Humphries framework, then Morrison decides that congress can impose restrictions on press’s ability to remove an executive officer that does not have purely executive function (legislative and judicial); and on a case by case bias, an executive officer operating with purely executive function so long as the restriction will not prevent the executive form making decisions to enforce the law and that will not mess up separation of powers and give the legislative branch an effective check (inferior officers appointed by congress, with purely executive function can have a for cause removal restriction placed on president by congress). Bowsher Congress cannot remove executive officer with purely judicial function (sep of powers)

Inferior officers v principle officers – Inferior can be removed by higher executive branch official, are accountable to principle officer who is accountable to the president, have certain specific limited duties, limited in jurisdiction and tenure

Must have employees who are sympathetic to goals of agency and have ability to get rid of employees not doing their job properly frustrating end goal of agency; hard to give head of agency this discretion if people don’t trust views and goals of agency heads

Patronage v civil service coexist, but patronage system is small; only top level of officials; lots more civil servants – this creates issue of inability to motivate or remove shitty employees

Principle officers – heads of agency, appointed with advice and consent of congress, mostly political, removal according to statute; limited removal especially if it an independent agency or appointed for a fixed term few thousand, political or not; Inferior officers – a few thousand, may be political or not, may have discretion and policy authority depending on statute; appointed and controlled by principle; less protection from removal, unless civil service; Confidential employees (no protection); Federal officer (civil service); Federal Contractors (contracts)

Informal Rule making – 553 Notice and comment

Rule making

Notice – publication of the proposed rule making in FR; the legal authority; and terms or substance of proposed rule; with a description of subjects and issues involved – vaguer the riskier; tell why you are regulating; Three purposes; allow rule to be tested and exposed to diverse public comment, improving the rule; afford fairness to affected parties by giving them opportunity to express views; allows for more useful comments and judicial review; CMA v Block – notice will be satisfactory when changes in the original plan are in the character with the original scheme in the notice and the final rule is a logical outgrowth of the notice as a whole, not just the reasons behind the rule making generally – interested parties must have notice that final rule promulgated could have an effect on them – WRITE RULE BROADLY

Comment period to submission of data/views/arguments by the public; comments should have meaningful effect; Valuable to have comments debates; on record for judicial review and transparency; submissions on the last day, agencies basically don’t touch it; late comments may be considere; but if it changes the rule, then you have to start a new comment period; e-filing

Consideration and publication (Judicail Review look for arbitrary and capricious reasoning/rational with connections form facts on record in comment period)– consider public comments and other relevant materials; Produce concise general statement of the rules basis and purpose in a preamble, explaining why or why not you did or did not change rule based on comments; publish rule 30 days before effective date; Don’t have to discuss or consider every comments

Enabling act gives AA authority to rule make expressly or impliedly; National Petro v FTC – FTC given authority to adjudicate regulations on gas company advertisements – wants to make a rule to make adjudication easier. Court looks to enabling act/legislative intent/chevron defrence and finds the rule making authority to further adjudicative function of the agency – like madison says – it is not new power, its just making the power they have more effective to protect public good

Public interest in AA offset special interests; public choice embraces special interest; individual public good will never put the force on an AA that special interest will. but no more pure public good of public officials – more pure private interest of public officials operating against pure public good; many ways to interpret what is the public good; only good to regulate when the market failues to bring public welfare; but not everyone agrees when this is, how it should be done, and whether the government is even any good at it. Industry affecting public choice – Government can provide benefits or impose costs; Hypothesis – your chance of receiving benefits/avoiding costs depends on the investment (lobbying, campaign donations, rule making comments); conclusion – is may make more sense to invest in possible influence rather than equipment training, ect; Result – rent (cost of obtaining break or advantage) or agency capture (agency looking after one groups social interest)

Lower due process for rule making – Policy and politics are invovled

This means that in rule making we don’t need complete impartiality or total ban on ex parte comms – want people to have opinions when they are rule making because it is forward looking and rule makers are the ones who are experts.

National Advertisers –but don’t need impartiality of officials in rule making – rule making is driven by partiality.

Sierra club – ex parte meetings with executive branch are ok during rule making, unless strictly prohibited – rulemaking is not suppose to be cut off from ex parte comments, and especially not for the controlling executive party – only have to put them on the record if you are going to use these ex parte comms to make decisions; issue hard to tell what you are basing decision off of, the info, or the politics

HBO v FCC – cant have two records for a rule making – Compromise on need for ex parte comms and the need to have transparency; Contact prior to N&C is fine and need not be on record/not really ex parte; if contact is used to make decision, then it must be added to the record for judicial review and for other to comment on; once N and C period has begun, ex parte comms must be added to the record aka they are prohibited. After Comment period ends, ex parte comms used to make a decision will functions as a late comment.

Executive order 12866 procedures for rule