Administrative Law (Law 116 Sec. 002)

Transcription

1 Administrative Law (Law 116 Sec. 002) Prof. Greve Spring 2013 MW 6:00-7:15 P.M. Room 225 Hazel Hall Welcome to Administrative Law. Our textbook is Gary Lawson, Federal Administrative Law (5 th ed. 2009; ISBN ), GL in the syllabus; all other materials are on TWEN. This is a very demanding course, with tons of readings, oodles of basic (and, alas, mostly phony) rules to memorize, and countless traps, exceptions, and twists of arguments. Every prof has his or her own path through, or rather across, this endless minefield. This introductory note outlines mine (no harm done if you skip straight to the syllabus below). The basic premise of Administrative Law is that at the end of the day, government gets to do what it wants. AdLaw is about (1) the hoops government must jump through and (2) what happens when desperate plaintiffs say that government has screwed up majorly. (They lose about nine times out of ten. Still, they keep coming.) The way we teach this is through cases. That method introduces a certain bias: it screens out all the stuff that goes on within agencies, or between an agency and the Congress or OMB. But it s the conventional way, and I don t see the alternative. The material is overwhelming. First, the administrative state is big-gish. (Take a look around your own bathroom: can you name an item that is not designed or regulated by at least one government agency? How many federal agencies can you find? I can find the Department of State, likely under your sink: can you?) Moreover, the administrative state does an infinite number of things in many different ways. It grants business licenses; administers disability benefits; sets industry rates and standards; writes checks; collects taxes; takes over small banks and subsidizes large ones; etc. Your textbook supposes that this is all of one piece, more or less. I m not at all sure, and I will teach against it. Second, AdLaw isn t self-contained. It s about what government does and how it may do it; so it overlaps with ConLaw. It plays out, overwhelmingly, in a statutory context, so it overlaps with Statutory Interpretation and with the specialized law of whatever playpen one happens to be in Environmental Law, Food and Drug Law, Financial Regulation, Civil Rights Law, etc. The business of the administrative state is to nudge private conduct into productive (or at least not-non-productive channels); hence, AdLaw has come to intersect with cost-benefit analysis, auction pricing, and economics of the normal and the behavioral kind. Most of the business is conducted by and within agencies; thus, a basic familiarity with theories of organizational behavior would help you (as well as the courts that review

2 agency decisions, usually in blissful ignorance). I have crammed some of this stuff into Part I and ignored the rest. Third, administrative law has a complicated history. It was squeezed awkwardly into the Constitution, beginning a century or so ago. And it s proven very unstable ever since. The textbook covers the historical development in considerable detail; the course will present a brutally curtailed version, focused on themes that are still of practical relevance and, to the extent possible, through the lens and medium of modern cases (i.e., cases that postdate the birth of Justin Bieber). Finally, I should flag several major omissions: due process (i.e., the question of how long and in what way government has to talk to you before it gets what it wants you ll have to learn that in ConLaw II); internal agency proceedings; state (and local) administrative law; and statutes governing agency procedure and disclosure obligations, especially the Freedom of Information Act. There simply isn t enough time. Here s what we will study: Part I covers the constitutional backdrop and the historical development of AdLaw. Parts II-IV cover black-letter AdLaw, such as it is: agency procedure, the scope of judicial review, and the availability of judicial review. (You will find out very quickly that these themes are interrelated in complicated ways; that s one of the challenges.) Part VI is a closer look at one major piece of regulation and litigation: Massachusetts v. EPA (2007), which turned the Clean Air Act inside-out and created a greenhouse gas exception to just about every principle you have learned over the preceding weeks. Whatever its merits, it s a terrific vehicle to review big chunks of AdLaw in a single regulatory setting. Note: The syllabus is subject to change, depending on our pace and your instructor s sheer whim. You ll want to check TWEN periodically.

3 SYLLABUS Part I: Foundations What Is Administrative Law? GL pp 1-8; FDA v. Brown & Williamson ( ) Read in this order. Do not attempt to comprehend Brown & Williamson at any great depth: you will encounter it again, later. Instead, ponder basic questions: who or what is the FDA, and what does it do? What did it do here? Who is suing the agency over what? Constitutional Foundations GL 36-50; Skowronek, Building a New American State (TWEN); Landis, The Administrative Process (GL 30-31, 42-44); G. Lawson, The Rise and Rise of the Administrative State (TWEN) The Constitution is inimical to a Fourth, administrative branch of government isn t it? Then again, who should deal with railroad rates, internet services, or pollution that crosses state boundaries? Congress: Delegation J.W. Hampton; Panama Refining; Schechter Poultry; Mistretta (GL 58-76); GL ; Mashaw, Prodelegation (TWEN) Your casebook author s hypo (p. 53): Congress creates the Goodness and Niceness Commission, authorized to make binding rules for the promotion of goodness and niceness on all subjects within Congress constitutional jurisdiction. Constitutional? A good idea, per Mashaw? Controlling Delegations: Legislative Oversight, Judicial Construction INS v. Chadha (and text, GL ); REINS Act (TWEN); Industrial Union v. API (GL ); Whitman v. ATA (TWEN); Oren, Whitman v. ATA (TWEN) If the Fourth Branch is headless, what s the remedy restore legislative controls, or have the courts ride herd? (Recall the FDA tobacco saga: is that a good model)? Re ATA: can you tell why Edward Warren a lawyer of unrivaled brilliance waltzed into the Supreme Court with an argument he knew he would lose? The Executive: Appointment and Removal Myers, Humphrey s Executor; Buckley v. Valeo; Morrison v. Olson (here listed in chronological order simply read through GL ); Free Enterprise Fund v. PCAOB (TWEN); Dodd-Frank Act (selected provisions TWEN) Recall Lawson s fondness for a unitary executive : what problems, if any, would that fix?

4 The APA: A Very Brief History Breyer et al, Historical Development (TWEN); Sunstein, Factions, Self-Interest, and the APA and Shapiro, APA: Past, Present, Future (single document on TWEN); Calvert Cliffs Coord. Committee (TWEN); Scalia, The Doctrine of Standing (TWEN); Ginsburg, Remarks (TWEN) Lecture class. You ll want to get the general gist of the readings and then take careful notes in class: you need the context for the rest of this course. There s no other way to do this. Part II: Agency Procedure APA: Structure and Content APA (GL 987pp); GL ; GL 10-13, Read in this order, starting with the APA in its entirety (not much of it actually matters but you should read it at least once). The APA lives off a basic distinction between rulemaking and adjudication (and a second, effectively-defunct distinction between formal and informal proceedings); make sure you catch that. The Chenery Saga SEC v. Chenery Corp. (I,II) (GL ) At the end of this travesty, Justice Jackson and Frankfurter dissent but still embrace the administrative process as an expeditious and nontechnical method of applying law as distinct from dispensing with law. What, though, is the administrative process (as opposed to, say, constitutionally due process), and what can it do for you? Formal Rulemaking and Adjudication Florida East Coast Railway (GL ); City of West Chicago, Seacoast Anti-Pollution League, Chem Waste Mgmt ( ) Your textbook notes that FECR follows Roe v. Wade in the U.S. Reporter. What the author means to suggest is that Roe was just a warm-up act for this piece of work (do you agree?). The practical question to keep in mind: where do procedures come from? Make a list. Informal Rulemaking(I) Vermont Yankee (GL ); CT Light & Power (GL ); CSX Transportation v. Surface Transp. Bd. (TWEN) Finally, something that matters: this is huge.

5 Informal Rulemaking(II) NPRs; Statutory Hybrid Rulemaking; Exemptions (GL ) No pathbreaking precedents here; only case illustrations of recurrent notice and comment rulemaking problems, most enshrouded in considerable smog, by the D.C. Circuit s en banc lights. Make a list of what appear to be the basic propositions. Informal Adjudication Citizens to Preserve Overton Park (GL ); PBGC v. LTV (GL ) Totally made up but a good introduction to the interplay between procedure, substance, and scope of review, which comes next. Part III: Scope of Review Findings of Fact Universal Camera Corp v. NLRB (GL ); ADPSO v. Bd of Governors (GL ); Corrosion Proof Fittings (TWEN) Read, and memorize, the text surrounding Universal Camera; flip through and then forget the case. Can you see how Corrosion Proof Fittings hangs together with the non-delegation stuff? Legal Conclusions NLRB v. Hearst (GL ); Skidmore v. Swift (GL ) I ve spared you most of the unteachable NLRB cases in the book ( Thank you, Professor Greve! You re welcome but if you misbehave we ll do Universal Camera after all. ) These, though, you have to know. Chances are you ll get to yell Skidmore! at some point of your career, and the moment had better be right. Chevron Chevron U.S.A. v. NRDC (GL ) ; Merrill, The Story of Chevron (TWEN); Schuck & Elliott, To the Chevron Station (TWEN); INS v. Cardoza-Fonseca (GL ) The sum and substance of modern AdLaw, made up in an afternoon and then implemented by the D.C. Circuit. Get the two/three-step down. Chevron, Step Zero Rapaport (GL ); Christensen (GL ); U.S. v. Mead (GL ); Gonzales v. Oregon (GL )

6 Because no one has a clue what deference means, we give it varying you-know-what-i-mean names: Skidmore, Auer, Chevron, Mead Make a list: case name, year, deference to what; cram it into your head. Chevron, Step One: Is That Clear? Zuni Pub. Sch. Dist. V. DoEd (GL ); Dole v. Steelworkers (GL ); Sweet Home Chapter (TWEN); FDA v. Brown &Williamson (GL ) If the statute is clear, how come the justices always seem to disagree? (Not a trick question.) Chevron, Step Two: What s Reasonable? Entergy v. Riverkeeper (TWEN); Brand X (GL ); Debate (GL ) Assuming Step Two is a separate step, it s legal lingo for government wins. Noodle over the past sessions and materials: does the Chevron framework make sense? Hard Look Review The Great Debate (GL ); State Farm ( ); Business Roundtable v. SEC (TWEN) The great debate (in Bruce Springsteen s words) leaves you with nothing, Mister, but boring stories of glory days (the D.C. Circuit s). In contrast, State Farm is foundational. Business Roundtable is way harsh: a second coming of Bazelon & Leventhal? Hard Look in Practice LeMoyne-Owen (GL ); Dept of Treasury v. FLRA (GL ) Two more opinions, by very good D.C. Circuit judges. I ll summarize a few other cases but enough is enough. Think: are Chevron II and arbitrary and capricious review the same, or not? Part IV: Judicial Review Statutory Review and Preclusion GL ; Block v. CNI (GL ); Heckler v. Chaney (TWEN); Amer. Horse Protection Ass n (TWEN); Webster v. Doe (GL ) GL doesn t teach this but it s important, and difficult. Keep the cases in mind when reading Mass v. EPA later on.

7 Standing Lujan v. Defenders of Wildlife (GL ); FoE v. Laidlaw (GL ); ADPSO v. Camp (GL ); Clarke v. SIA (GL ); Air Courier (GL ); Bennett v. Spear ( , ) The owl of Minerva flaps its wings at dusk and flutters straight into a federal courthouse. Exhaustion, Finality, Ripeness McCarthy v. Madigan (GL ); Darby v. Cisneros (GL ); CSX v. STB (TWEN); FTC v. Standard Oil (GL ); Air Brake Systems (GL ); Abbott Labs (GL ); GL Often difficult in practice, but no great intellectual challenge. Part V: AdLaw Climate Change? Massachusetts v.epa Mass v. EPA (D.C. Circuit) (TWEN); Mass v. EPA (SupCt) (TWEN); Coalition for Responsible Regulation (TWEN); Wallach, U.S. Regulation of Greenhouse Gas Emissions (TWEN) Time permitting, we ll spend two sessions on these materials. Read the majority opinion carefully. Make a list of the doctrines/adlaw precedents that now, apparently, come with a global warming exception or asterisk. What (if anything) were the justices thinking and trying to accomplish? Was the disaster in CRR foreseeable?