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Unformatted text preview: 1) Introduction and Structure 2) Congress, the President, and Administrative Agencies i) Nondelegation Pg. 3 ii) Legislative veto Pg. 7 iii) Executive control generally Pg. 8 iv) Centralized executive review Pg. 12 v) Cost-benefit analysis Pg. 15 vi) Signing statements & non-enforcement Pg. 16 3) Statutory Procedural Requirements i) APA Pg. 19 ii) The choice between rulemaking and adjudication Pg. 22 iii) Formal adjudication Pg. 25 iv) Formal rulemaking Pg. 27 v) Informal rulemaking Pg. 29 vi) Exceptions to notice & comment requirements Pg. 36 vii) Rulemaking ossification Pg. 36 viii) Official notice Pg. 39 ix) Ex parte contacts Pg. 42 4) Constitutional Procedural Requirements The Due Process Clause i) Protected interests Pg. 47 ii) The process due Pg. 51 5) Requirements of Agency Consistency i) Consistent explanations Pg. 53 ii) Estoppel and res judicata Pg. 57 iii) Retroactivity Pg. 59 6) T he Scope of Judicial Review of Agency Action i) Questions of fact Pg. 60 ii) Questions of law Pg. 64 iii) Chevron Pg. 64 iv) Reviewing discretionary decisions Pg. 70 1 1) Introduction and Structure (Administrative Functions) a) Regulation of private conduct. Usually, economic regulation of price, entry, or business practices is targeted at commercial enterprises. b) Government exactions. Administrative agencies collect taxes, build roads, and impose obligations upon citizens. c) Disbursement of benefits. Agencies distribute subsidies to large sectors of the nation, including farmers, welfare recipients, and the elderly. d) Direct provision of goods or services. Some enterprises in our largely capitalist economy are government owned or operated, such as the postal service, Amtrak, several large public utilities, and enterprises constructing highways and dams. Such proprietary activities also include the running of prisons, public housing, and mental hospitals. i) Administrative Tools. Most agencies possess a wide variety of coercive means to implement the obligations they impose. Often, actual sanctions may be imposed only through the use of the courts. But many less severe coercive mechanisms may be utilized by agencies without judicial enforcement, such as license denial, restrictions, or revocation, or withholding economic benefits. Another significant weapon in the arsenal of coercive devices is investigation and the dissemination of adverse information. (a) Structure and Organization. A wide variety of organizational structures exists for administrative agencies. Most have large staffs and highly specialized responsibilities. Federal administrative agencies are defined by the Administrative Procedure Act ("APA"), 5 U.S.C. section 551, by what they are not: they do not consist of the legislature, the courts, or the governments of the states or the District of Columbia. But they employ more people, dispense more money, and regulate more activities than the other three combined....
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- Fall '06