#11271 - Judicial Oversight - Legislation & Regulation

1. JUDICIAL OVERSIGHT

   1. Reviewability

• APA § 701(a): Two (relatively narrow) exceptions to reviewability:

  • Statute precludes review.

  • Committed to agency discretion by law (“no law to apply.” See Overton Park for standard)

• Agency non-enforcement is presumptively unreviewable.

  • See Heckler v. Chaney.

  • Judiciary lacks expertise re: spending/resources/timing

  • Non-enforcement means no coercive interference in rights

  • Akin to executive’s prosecutorial discretion

  1. Review of Questions of Law

     1. Chevron Step 0 – Did Congress give the agency lawmaking authority?

Skidmore: Weaker form of deference owed to the agency. We will defer to the agency’s interpretation of law based on:

• Thoroughness;

• Validity;

• Consistency;

• Other persuasive factors.

U.S. v. Mead Corp.: Did Congress intend such actions to carry the force of law? If so, Chevron applies. If not, Skidmore applies instead. For Chevron:

• Formal procedures;

• Due consideration;

• Fairness and deliberation.

Against Chevron:

• Large volume of decisions;

• Made by low-level employees;

• No explanation offered;

• Not intended to have precedential effect.

Barnhart v. Walton: Rather than answer the formalist question whether the action is meant to carry force of law, better to assess it based on an ad hoc analysis to determine if Chevron applies:

• Interstitial nature of the question;

• Expertise of the agency;

• Importance of the question to carrying out the statute;

• Careful consideration of the decision;

• Duration of the policy.

  1. Chevron Step 1 – Did Congress speak to this issue in particular?

     1. “Major Questions” Exception

MCI: (“Modify.”) Congress does not hide elephants in mouse holes. Even though the agency’s interpretation may be supported by the language of the statute, we will expect that Congress will give a strong signal if it intends to give the agency very broad discretion.

FDA v. Brown & Williamson: (Tobacco ban.) “Major questions exception” to Chevron. Even though a reading of the statute may be supported by the language of the statute, we will not presume that Congress intended to delegate a huge decision of policy to the agency in a few lines of statutory text.

2. Constitutional Avoidance

Solid Waste Agency v. Army Corps of Engineers: Even though the agency’s interpretation might be supported by the language of the statute, we will not construe the statute as pushing the limits of Congress’s constitutional authority unless we have a clear statement in the statute supporting it.

DeBartolo v. Florida Gulf Coast: The court may stretch Congress’s words on an issue if it allows us to dodge a potential constitutional question.

2. Chevron Step 2 – Is the agency’s construction of the law permissible?

Whitman v. American Trucking: Even though a statute’s meaning might be ambiguous, the agency’s preferred interpretation may go beyond the bounds of reasonableness.

1. Substantial Evidence Review

• Review authorized by APA § 706(2)(E).

• Used when challenging fact-finding in formal rulemaking or adjudication, under §§ 556 and 557.

• Sufficient to allow a reasonable mind to accept a conclusion.

  • No basis in fact / “mere scintilla < Substantial Evidence < Clear and Convincing

• On appeal, the commission may override the ALJ.

  • But the reviewing court may defer to the ALJ’s assessment of demeanor evidence, which he alone hears.

  • But barring this, the court will defer to the commission’s decision provided it is supported by SE.

• Universal Camera: Court reviews entire record to see if agency’s decision supported by SE.

  1. Arbitrary and Capricious Review

• Review authorized by APA § 706(2)(A)

• The court may not hold the agency to a higher procedural standard than the APA (Vermont Yankee)

• Applies to fact-finding in informal rulemaking and to all policy decisions.

  • Includes enforcement, rulemaking, and non-rulemaking.

  • DOES NOT INCLUDE non-enforcement (committed to agency discretion by law).

• Was there careful consideration of the facts? Was there an error of judgment?

• The court reviews the agency decision based on the record the agency considered at the time.

• Overton Park: If we don’t have a complete record of the decision to review, we can’t let the decision stand (remand).

• Chenery I: The agency’s can only stand based on the rationale it adopted at the time; it may not revise its justification post-hoc for purposes of appeal.

• If new information is available, it may be arbitrary and capricious of the agency to let its decision stand without reconsidering (remand).

• For positive agency actions, the court employs a hard look review (See State Farm, infra). Includes:

  • Recission of rules (State Farm)

  • Promulgation of rules (Nova Scotia)

  • Adjudication (Overton Park)

  • Adjudicative Rulemaking (Chenery II)

• For negative actions (rulemaking refusal only—non-enforcement is presumptively unreviewable) the standard is highly deferential or extremely limited, UNLESS

  • Statute orders the agency to act (Mass v. EPA)

  • Agency fails to...