Admin Law Sample Answer Summer 07

Admin Law Sample Answer Summer 07 - ID:...

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Unformatted text preview: ID: Administrative+LawflSMO7WE‘inal (Pa. .. Matthew Farmer 1) a} 1) First PPM will want to look at the statutory scheme in the act. When looking to statutory challenges we must first look at what the statute says. We must give a look to see whether the statute violates any important principles such as the non delegation doctrine or the separation of powers or even procedural due process. When looking at the non delegation doctrine we are looking to see if Congress has delegated anything that it should not have. This would be powers that it cannot give, etc. We don't really have big issues with this one here. It appears that the delegation here was proper. MAD was given the authority to administer the music act and to make all rules and regulations deemed necessary and proper to carry out the terms ofhte Music Act. This wouls seem like it is giving MAD the ability to enforce the rules given. There are no real seapration ofpowers issues here b/c Congress is letting go of the agency and not meddling in its affairs from what we can see. PPM could make a constitutional claim that the statutes violate their first amendment free speech rights because it limits who they can perform their songs in front of. This will be able to overcome any obstacle that could be placed in its way if the statute tried to preclude judicial review. Any procedural due process claim is probably going to come up later below in the regulations and probably not in the statutes. The regulations in question bring out some potential challenges for PPM. PPM could argue that the regs are too vague in that it only says that restricted includes "mentions" any drug use without saying what it means to Mention. They woudl argue that this could mean directly saying the words of the drugs. MAD would probably counter to this by saying reference is what is meant because there is the mention of "infer or suggest" in the same line when talking about sexual conduct. PPM could say that MAD should have been clear b/c they should have said lnfer and suggest about drug use too. Another challenge at the reg stage is that the Clear and Conscise general statement of basis and purpose is anything but clear and concise. It seems somewhat confusing when saying the that a definition is needed b/c children are unduly susceptible to such negative influences. I need to back up. the regulation was formed based on Informal rule making procedures which have three procedural requirements. There must be prior notice, usually through the federal register, (done here). Alter notiice is given interested persons must be given the opportunity to participate through submission of written comments containing views, Page 1 of 4 (Question 1 continued) ID: Administrative_Law_SMO7fiFinal (Fa. .. Matthew Farmer arguments, etc. third) After the agency has done these two steps above it must issue w/ the final rules a concise general statement of basis and purpose. It must show that the agency looked at the relevant factors presented during the rulemaking process. during informal rulemaking the standard that applies to all agency actions would be the arbitrary and capricious standard. The court reviewiing this would look to see if the agency acted in a manner that was not arbitrary and capricious. When a court is looking at this they will check to see if the agency considered the relevant matters presented. If they did then this would negate the danger of an arbitrary or capricious action. We know that two groups submitted writen comments about the proposed rules and they did infacat talk about the children. So in a sense this statement meets the standard but it is a little bit susceptible to challenge b/c it is pretty short and doesn't get into much of anything. It doesn‘t give any sort of solid direction or guidance about how the agency is going to implement this in the future except for that this rule is important. The adjudication going on here seems to be a formal adjudication because it says that PPM was given a hearing. This could also be informal b/c we dont‘ have all of the facts. The interest at stake here is two fold as both a property interest b/c $5K is going to be taken from them and it is a liberty interest as well b/c it infringes on their rights to perform and sing the way that they want to. When there is an adjudication the substantial evidence test applies when the reviewing court takes a look at what went on. This has been described as looking to see whether a rational person looking at the evidence could find more than a scintilla of proof to find for the person. PPM might challenge MAD to find out what findings were made to come to the conclusion that the song was all about drugs and smoking pot. Another challenge that can be brought up is that the Agency abused its discretion is creating the rules that it did and finding the way that it did in the adjudication. We would follow the Chevron Doctrine in this challenge. Chevron is a two part test to determine whether the agency has abused its discretion. This usually deals w/ interpretations of rules like we are dealing with here. This is looked at when Congress has legislated in the area but maybe has not said everything that it could about the situation prefering to leave up to the agency the ability to make decisions and interpretations. lf Chevron is found to apply the agency gets quite a bit of deference to their decision making. Under Chevron the first question is whether Congress has spoken on the issue, if it has then it stops there. If it has not then the question is whether the agencies interpretation or rule Page 2 of 4 (Question 7 continued) ID: Administrative_Law_.SMO7_Final(Fa. .. Matthew Farmer reasonable. If it is reasonable then the interpretation carries the force of law and gets high deference. Here the Congress has not really spoken to whether what words are restricted or even said anything about drug use in songs. So the first part is past. We do know that congress gave MAD the ability to administer the act and to make rules and regulations. I guess there could be an argument in there that it does not say that there should be interpretations, at which point a Skidmore analysis might be the situation to follow. But I will get to that later, maybe b/c I should finsish w/ Chevron. The second step looks to see if the interp is reasonable. it could probably be reasonable or it could not be b/c we are also dealing w/ 1st amendment speech issues here. Speech is protected somewhat. Excessive profanity might be obscence so that might not be protected speech, however, drug use might not be an unprotected class so there might be a fight there. Chances of success are likely going to come down to what type of speech, protecetd or unprotected we are dealing with. Back to Skidmore. this applies when the agency doesn't have the authority to interpret and they do anyways. These types of rules get mid level deference. The chances for sucess for PPM are mixed. The statutory challenges might not be that great unless they stick to the first amendment issues/ con law issues. any sort of non delegation argument could be brought up but would probably not go far b/c of hte language in teh statutes make clear what can be done and do not try to overstep Congress bounds. The regulationswill probably be okay b/c the agency followed the required steps for informal rulemaking and the court might be somewhat lenient to the sloppy "concise" general statement. PPM will likely have their best chances on the adjudications arguing a whole range of things mentioned above. Apple I Tunes Apples challenge to the regulations only. Apple could probably make jsut about the same argument as above was done for PPM regarding the regulations. There will be diffrernt arguments by apple for the second set of regulations which were not really touched by PPM. We know that is was informal rulemaking. Apple may challenge the situation that was used to produce the rules by aruging that there were so few other interenet downloading companies that they should have been provided formal rulemaking proceedings to have a chance to comment on Page 3 of 4 (Question 1 continued) ID: Administrative_Law_SMO7_Final(Fa. . . Matthew Farmer how the proposed regualations should have been decided on. MAD will argue that if informal rulemaking was done then Apple had the opportunity to have its voice heard through written comments as mentioned above regarding the process for informal rulemaking. Apple will argue that the informal rulemaking proceedings do not give enough oppportunity to maketheir case known to MAD. Since there is such a small group of sellers of music on the internet it is more like an adjudication than a rulemaking b/c whatever rule is going to put in place is going to affect apple much more than if it were a broad rule of genreal applicability. Apple could challenge the regulations b/c the process prvoded for a lack of procedural due process. property and liberty interests would be violated b/c money would be lost. They could make the argument that a pre- deprivation hearing would be appropriate b/c they are going to lose money. They would have to look at the Matthews Factors a three part test that looks at the private interest affected by official action, the risk of erroneous deprivation throgh the procedures used and the government interest including function and cost of administration. ’I‘I‘le private interst is the apple runnign their company. Risk of deprivation is not great. this is a big company. The government interest could be considered to be big, b/c they want to protect the children. this would probably lose. Another challenge would be that regulation is going to cost alot b/c have to make publicly availabe the lyrics for all the songs on their website. This is going to cost a lot. A question might be where is the concise general stament after the informal rulemaking? That would need to be there. That could be challenged b/c I do not see it. There might be a question about whether this challenge is ripe. In order to be ripe there must be a then or now existing controversy that presents some type of immediate harm or impact upon the party challenging the action taken. In addition Apple would have to exhaust all of its administrative remedies before challenging this is court. The ripeness factor for court would probably have to wait until after the action ofpaying 20 Million had taken place. Page 4 of 4 ID: Administrative_Law_SMO7_Final (Fa. .. Matthew Farmer 2) 2) There are a lot of issues that Bill can challenge here. First, from the top, he can say that 10 USC 500 is overbroad and vague at the same time. I know this isn't one of our main things, but I wanted to point it out. it is overbroad potentially b/c it deals w/ all food. What does that mean? Food, drink, supplements, etc, does it mean anythign that can be taken in the mouth. Is it vague b/c it says that it needs to make food "safe" Safe from what? That is a wideopen term. There is also no intelligible principle w/ the delegation of power to the FDA. At least we don‘t see one. it is kind of helter skelter all over the place what Congress is trying to do w/ this act. Another challenge is that 10 USC 501 is that it could be denying procedural due process to the people who have already begun receivng government benefits. This is pretty broad and coudl be interepreted to include a lot of benefits. How are the people going to prove the food is safe? This seems to be overreaching the point of the act, the point which we don't seem to have. It seems that this is about making food safe. How will demonstrating that you are complying with the act further the intent to make the food safe? It will not. It does however present a procedural due process violation if you are going to be denying food stamp benefits like what was done in Goldberg v. Kelly. There the court said that you could not take away a person's welfare, food stamps without a predeprivation hearing. That would be violated if this act were followed b/c the recepient would have to show that the food is safe before continuing to receive benefits. This would amount to a post deprivation hearing by the time the person was able to demonstrate that they were purchasing safe foods. The people would not be able to purchase food without the benefits and would have no way to demonstrate they were buying safe food. Procedural due prOcess involves official ations and they must meet minimum standards of fairness to an individual. There must be right to adequate notice and a meaningful opportunit to be heard before the decision. this would be missing here for the reasons mentioned above. This argument might not apply however to all government benefits. We have seen examples of benefits that were subject to post deprivation hearings such as what is going on here. An example of this would be Matthews v. Eldridge, which dealt with Social Secuity much like Bill's case here. Here we are dealing with a rulemaking and possibly an adjudication b/c there must be demonstrated that the food is safe which requires a detemination. We will look at the statute for Page 1 of 4 ( Question 2 continued) ID: Administrative_Law_SMO7fiFinal(Fa. .. Matthew Farmer the adjudication and see what it says on the procedure. This is a property interest b/c we aredealing w/ govt benefits which can become entitlements sometimes. We need to look to see if Due Process applies. it woudl seem that is does here b/c we are deaing w/ benefits. if yes, as here, then we apply the Matthews factors. These three are the private interest affected by official action, the risk of erroneous deprivation throgh the procedures used, and the government interest including function and cost of administration. this would have to play out for bill along the lines of social security. Matthews dealt with Social securiuty disabiliyt, we don't know il’Bills is the same case or whether he is retired and is living off of social securiyt in that regard. That might make a difference b/c if it is the latter then it could be his sole means ofsurvivial which woudl be more like the Goldberg case than the matthews case. The private interest is great in that money is needed to buy food and the argument above comes into play. the risk of deprivation is great based on the way it is set up, see above. The government doesn't really have a pressing need to enforce it this way, it seems arbitrary and capricous b/c there really seems to be no rational relationshiop or basis stated or one that i can figure out for the rule. The government interest is not that great in relation to the basis of the rule. In addition, it would not cost a lot more to give pre-deprivationhearings to Bill b/c it is not going to be a change in money spent for the government to just wait until the adjudication takes place to deprive him or continue to grant his benefits. bill will probably succeed on this challenge for the reasons just mentioned. 10 USC 502 could be challenged onthe grounds that Congress may be cutting into the executive function and has not let go of the legislation. This is not acceptable b/c it is almost like the INS v. Chadha case where congress tried to adj udicatc or have final say on an agencies determination. this sort of applies here. While congress is always free to change the law. it must do so by making an amendment or making a new law. once they have presented the act to the president and he or she has signed the act then it becomes the domain of the executive branch or whoever is delegated the authority to act. Once that is done, Congress role should not be messing with the execution of the law. Congress can enact resolutions as amendments but they should allow intrepretations to take place by the FDA because in 10 USC 500 Congress gave the FDA the abilyt to regulate and assure all food is safe. Once it is given to the FDA to regulate it shouldn't go back to Congress 10 USC 503 is going to evoke several challenges. There will be the Non-delegation Page 2 of 4 (Question 2 continued) ID: Administrative_Law_SMO7_Final (Fa. .. Matthew Farmer doctrine, separation of powers, appointments clause issues. Appointments clause first. The president is given the power to appoint officers of the U .8. according to his picking. WE must first determine ifthis person is an officer or whether he is not. I don't know ifhte FDA is an executive agency. most are, but i'm looking to see ifit is an independent agency, b/c ifso then removal here might be out of line. [fit is an executive agency and the commissioner is an officer then he is removable by the prsident. ifhe is an inferior officer it might be a little bit different b/c it might need to be a for cause removal. We will define those shortly. Bowsher v. Synar, Humphrey's executor, and Morrisson v. Olson got into a lot of these issues regarding congress' power to regulate the president's relationship with administrators, especially in Humphreys executor. Humphrey dealt w/ commissioners of the FTC, here we are dealing w/ a commissioner. this commisioner was not able to be removed in the way the president wanted. Commisioners can be considered officers too. In Morrison v. Olson we saw three things that help determine if someone is an officer or an inferior officer. First, is the subject to removal by a higher executive branch official?- from the statute—no. second, is the person empowered by an at to perform only certain limited duties. Third is the appellant limited in jurisdiction? We don't knw enough to fully say, but from what we see it appears that this commissioner is an officer and not an inferior officer. As such he should not be able to removed by anyone but the president, unless we are looking at some exceptions as in Morrison v. Olson regarding the special counsel. This seems different from Morrison b/c the commish‘es reign is not really limited except by the president and his jobs duites are not really limited except to the statute. As such this was probably a violation fo the separation of powers and should not have created the stateute this way. I have ten minutes left so I will try my best. The courts should usually not be allowed to remove the commissioner unless we were dealing with a case like Morrisson which it doesn't quite appear that we are. This also Seems like a non delegation doctrine violation too b/c congress is giving away more power than they have power to give. Since this person is an officer and not an inferior officer the president should have the authority to determine how he can be removed. Congress can make certain officers removal for cause and this kind of plays into the independent agency arguement. One problem I just caught is that this commissioner works throgh the FDA. If he is answerable to the FDA then he might be an inferior officer. however, we know that he, according to the statute can only be removed by a court of law. Bill would Page 3 of 4 (Question 2 continued) ID: Administrative_Law_SMO7_Final (Fa. .. Matthew Farmer probably have some good success in this area ofhis challenges b/c this statute does not seem to be well written b/c of the cross over and separation of powers issues. This area of law used to be much clearer before Morrisson but now the trend is to check to see if there is a potential for overstepping boundaries. Bill will have problems on all of his arguements potentially b/c his challenges may not be ripe and he may not have exhausted his administrative remedies. In order to be ripe there must be a then or now existing controversy that presents some type of immediate harm or impact upon the party challenging the action taken. llis denial ol‘ social security might be ripe. However he may not have exhausted his administrative remeides. I'm not sure what these would be. there doesn't seem to be an appeal process in the statute. there is a presumption ofreviewability if nothign is mentioned in teh statute so he can END OF EXAM Page 4 of 4 ...
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This note was uploaded on 10/24/2010 for the course PR 123 taught by Professor Gramer during the Spring '06 term at Loyola Law School Los Angeles.

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Admin Law Sample Answer Summer 07 - ID:...

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