Administrative Law Spring 2010 Appointments/Removal

Officers: President & Senate

Prof. David Hodas CONSTITUTION Inferior Officers: Pres. & Senate
President alone, Courts, Head of Dept.
Removal
Art. I Art. II Separation of Powers Issues

Art. III
Congress Executive Courts
Legislative acts of Congress
Delegation of Confirmation Appointment/ Formal v. Informal Adjudication
Legislative Power
Bicameral approval Removal No Supreme Ct decision; Cir. Ct
(Intelligible Principle)
Presentment to President approaches:
No legislative veto 1. Presumption in favor of formal
adjudication (Marathon Oil, Seacoast
Agencies Anti-Pollution League)
Appropriations Executive / Independent 2. Apply Chevron rule: deference to
reasonable agency interpretation if
statute is ambiguous (DC Cir)

Policy Choice
Rulemaking Wyman-Gordon Adjudication
Londoner or Bimetallic?
Informal
Formal APA 553 Informal
APA553(c), 556, 557 Notice & Comment
Formal Few requirements, e.g. record
APA 554,556, 557 Not arbitrary or capricious
Presumption against (FECR) (Notice issues; Logical outgrowth rule, concise
statement, publication, effective date, etc.) Overton Pk, Vermont Yankee
No addl procedures imposed by Ct. (Vermont
Yankee) Procedural Due Process
Exceptions to N&C: Subject matter, Procedural,
Interpretive rules, Policy Statements; good cause
Applies?

Rule Order

Judicial Review
Who?: Standing Whether?
When? Preclusion Judicial Review
Constitutional Finality Express 1. Outcome (What agency decided – Chenery I)
Injury in fact Exhaustion Implied Factual Support
Causation APA vs. common law Substantial evidence test APA 706(2)(E) or
Redressability Committed to
Ripeness arbitrary/capricious std (informal proceedings)
Prudential agency discretion Deference to initial decisionmaker
No 3rd Party Claim Legal Conclusions
No generalized grievance Chevron
Zone of interests Procedural Due Process Agency administers law
1. Gov’t Action Congress not spoken to precise issue
Statutory
Fed: 5th Amd.; State: 14th Amd. (also State Constitution) Reasonable agency interpretation
Associational Standing Sufficiently authoritative
2. Individualized Claim
3. Deprivation of a Protected Interest: “Life, Liberty Skidmore / Hearst
Property” Deference to agency expertise when Chevron
Property Interest: traditional definition expanded to include doesn’t apply
legitimate claims of entitlement 2. Procedure (How agency reached decision)
Liberty interest: freedom from restraint, unconstitutional Correct procedures followed (e.g. rulemaking
conditions (e.g. give up free speech for gov’t procedures invalid for adjudication & vice versa)
employment); stigma alone from gov’t action insufficient, 3. Decision-making Process (Why)
must be coupled with a legal impediment. Review based only on reasons given by agency
What Process is Due? Balance: (Chenery I): explanation required
1. Private interest in the hearing (need for the interest and Arbitrary / Capricious review APA 706(2)(A)
hardship from wrongful deprivation) Reasoned / rational decision-making: not
2. Fairness / reliability of existing procedures and value of arbitrary/capricious or clearly erroneous
additional procedures Appropriate factors considered
3. Gov’t interest in prompt deprivation Inappropriate factors not considered
4. Procedural Due Process – Constitutional Issues