types of agency actions
- rulemaking
2. adjudication
outcome of agency rulemaking
rule
agency rule
statement of general or specific applicability
that operates like a statute
with a future effect of
implementing law or describing agency procedure
outcome of adjudication
order
agency adjudication
application of agency law to a fairly discrete group of entities that often turns on the application of existing law to a particular set of facts (like a judicial decision)
- operates like “mini law-making”
- mostly retrospective
- can be somewhat prospective by placing others “on notice”
rulemaking process
- informal (aka notice & comment) s553
2. formal (APA s556/557)
informal aka notice & comment
- covered by APA s 553
- large category, dominant mode
- contains trigger clause to push to formal
- lots of ex parte disclosure
ex: rules promulgated under the Patient Safety and Quality Improvement Act regarding Patient Safety Organizations . . . notice and comments
APA Notice Elements
- statement of time, place, and nature of proceeding
- reference to legal authority under which rule proposed
- terms or substance of proposed rule
- invitation for comment
comment period
usually 60d
informal rule timeline
notice
comment period 60d
comment considerations
final rule
exceptions to notice/comment period
- agency issuing interpretive read
- internal operations procedure
- rules that reduce regulation
* * Emergency Executive Orders (ex: vaccine mandate) – effective immediately via final rule w/6mos. period for traditional notice/comment period
trigger language for formal rulemaking
rules required by statute to be made “on the record after opportunity for agency hearing” –> applies 556/557 instead of 553 (ex: Dodd Frank)
formal adjudication process
- APA rules
- provides standards of review
- most dominate form of adjudiciation
- trial-type substantive evidence on the record
Chevron 1984 case
facts: statute = Clearn Air Act Amendments
Carter Administration: apply the law distributive sense to each smoke stack
Reagan: applying the law collectively smoke stack to entire plan “bubble approach”
Chevron’s 2-step test for evaluating agency statute
- 2-step test for evaluating agency statute:
1) . has Congress spoke directly to the precise issue? Intent of congress? If yes –> use that. No –> #2
2) . silent/ambiguous: is the agency’s interpretation reasonable? Y–> uphold. N–> maybe strike down, remand for considerations, etc.
advantages Chevron deference
- position/knowledge: cts = generalitst; agencies = better position via complex expertise
- democracy: cts not accountable to ppl; agency more responsbility b/c have to answer to Congress oversight and president election
- consistency (1 agency vs. 1000 lower courts and jurisdictions)
disadvantages of Chevron deference
- agency capture concern
- Marbury 1706 court interpretive power
- gives president too much power via agencies
examples of judicial review of agency statutory interpretation
- Skidmore (how persuasive)
- Chevron (deferential)
- Mead (how to shift: between = L)
Skidmore 1944
- FLSA interp awake & ~eating = OT
- how persuasive agency’s interpretation
- not deferential
- factors: contemporaneous, longstanding, consistency, public reliance, public controversy
- informal adjudication
- congress retaining power reflective of APA s706 directive
Mead Corp. 2001
- tariff classification rules re diaries vs. dayplanners
- how much deference in situation: shift from skidmore to chevron when congress explicitly tells to do so granting agency powers
- if congres sintends to be deferential in rulemaking or formal adj
- NOT given agency tremendous power via deference in the informal adjudication sphere
checks on agencies
- executive (OIRA cost/benefit analysis)
- judicial (Skidmore, Mead, Chevron)
- congress (create/destroy, x4 checks)
