March 27

News

TBA

Assignment

Finish Chapter 6. Read carefully and note how final agency action and ripeness are often just different ways of arguing the same facts.

March 22

News

Gorsuch won’t be pinned down on Chevron doctrine

Endrew F. v. Douglas Cty. Sch. Dist. RE-1,

USSC expands students rights to an individually tailored education under federal law. Good IDEA, but a huge partially funded mandate.

Assignment

Chapter 6 through 256

Resources

Study Guide: Access to Judicial Review and Finality

This includes materials we will read for next class.

March 20

News

The Powell Memorandum – http://law2.wlu.edu/powellarchives/page.asp?pageid=1251

While this is from 1971, it is in the news because of the beginnings of the Gorsuch hearings. Two months before being nominated to the court, Lewis Powell wrote this confidential memo on how the right could capture the courts and public opinion.

Assignment

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – the global warming case. Read paragraphs 23-85. This is the standing material referred to in the text. We are going to look carefully at this case and climate change as the critical regulatory dilemma of our time. We will read more of the case when we are reading Chapter 7.

Chapter 6 – Read to II. EXCEPTIONS TO JUDICIAL REVIEW UNDER THE APA, p. 236

Resources

Study Guide: Mass v EPA – Standing

Slides: Mass v EPA – Standing

Study Guide: Standing – Part- II

Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) – for reference

 

March 15

News

CBO Scoring of Trumpcare 1.0

Obamacare revision would reduce insured numbers by 24 million

Assignment

Evaluating risk: IARC Monographs Volume 112: evaluation of five organophosphate insecticides and herbicides

Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013) – Edited, reformatted, and rearranged version for class discussion.

Study questions based on the edited version of the case. 

Read carefully. Now that we are done with the structural part of the course, we are going to read some cases very deeply. This is not casebook blurb stuff, we want to dig in and figure out what the court is doing.

 

 

March 13

News

Hospitals weigh in on ACA replacement

Keep a lookout for the CBO scoring of the Trumpcare bill.

Assignments

Bonvillian Cases: Bonvillian v. Dep’t of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal – Bonvillian, round II.

Chapter 6 to Other Widely Shared Injuries, p. 226. This should be quick as it should just recap what you learned in constitutional law.

Resources

Study Guide: The Bonvillian Cases

Slides: The Bonvillian Cases

Study Guide: Standing Introduction

Slides: Introduction to Standing

Practice materials for summary proceedings

Filetti, Garrett. “22nd Time’s the Charm: The 2015 Revisions to Summary Judgment in Louisiana.” La. L. Rev. 77 (2016): 479-585.

Code sections for Declaratory Judgment in LA

CCP 1871 Declaratory judgments; scope
CCP 1872 Interested parties may obtain declaration of rights, status, or other legal relations
CCP 1873 Construction of contract
CCP 1874 Interested person may obtain declaration of rights; purpose
CCP 1875 Powers enumerated not exclusive
CCP 1876 Court may refuse declaratory judgment
CCP 1877 Review of judgments and decrees
CCP 1878 Supplemental relief; expedited hearing for constitutional determination; effect of pendency of other proceedings
CCP 1879 Trial and determination of issue of fact
CCP 1880 Parties
CCP 1881 Construction
CCP 1882 Provisions independent and severable
CCP 1883 Uniformity of interpretation

March 8

News

LA Task force on reducing incarceration to adopt final recommendations March 16

Insurance Commissioner Leaving Office… Without Indictment (older story)

“The last time a Louisiana insurance commissioner left office and did not ultimately go to prison was in 1972, with Dudley A. Guglielmo. Now, 34 years later, Robert Wooley is accomplishing that feat again, stepping down from the post that he has held for the past five years, effective February 15th — leaving before the end of his term.”

Assignment

Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005)

We are going to spend a class on this case because it goes to heart of a major problem with administrative law in Louisiana. Be sure to look at the study guide as you read the case. (Heads up – The opinion, through paragraph 47, lays out the lower court’s ruling. The lower court ruling is a bit disjoint, so do not expect deep legal reasoning it. Try to identify the facts that the district court based its ruling on.)

Resources

Study Guide: Louisiana Adjudications and the Wooley Case

Slides: Wooley and the DAL

March 6

News

The Federal Budget in 2016

Assignment

Read Mathews v. Eldridge (edited version)

Finish reading Chapter 4

Resources

Social Security Disability Insurance Program Spending 2012

Social Security Disability Insurance: Participation and Spending 2016

CBO: Social Security Policy Options, 2015

Study Guide: Mathews and the Modern World

Study Guide: Bias in Administrative Hearings

Slides: Mathews and Bias

March 1

News

Risk Benefit for Medical Treatment

Presidential Executive Order on Enforcing the Regulatory Reform Agenda

Assignment

A little review on rules v. guidance documents – the transgender bathroom rule documents

Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015

Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016

Dear Colleague letter withdrawing the guidance on transgender student bathroom use

Read these letter and be prepared to discuss whether they are proper guidance documents or improper rules. We will return to these when we discuss the legal standards for deference to agencies.

Carry over readings from last class. Read to B. The Modern Rule in Chapter 4.

Resources

Study Guide: Prisons as Administrative Institutions

The Cost of Prisons

LA Prison Stats – Murder Rates – If NO was a Country

Slides: Employment and Liberty

 

February 22

News

OMB material is now on the White House WWW site

Assignment

Carry over readings from last class

Chapter 4 to b. Liberty and Correctional Facilities.

Resources

Heerden v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., No. CIV.A. 10-155-JJB-CN, 2011 WL 320921 (M.D. La. Jan. 28, 2011)

We are going to look at pages 4-6 in class.

The Flyer from Paul v. Davis, 424 U.S. 693 (1976)

Study Guide: The New Property

Slides: Introduction to Due Process and Goldberg

Study Guide: Goldberg (based on slides)

 

February 20

News

The ongoing controversy over the travel ban

Assignment

Some short readings on Cost Benefit Analysis

2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act

This is probably the most controversial document in the regulatory world. Just look at the tables in chapter 1.

Saving Lives: A Review of the Record

This is a great article on problems with CBA. Read 13-18  and look hard at tables 1-3 at the end. (AED – automatic external defibrillator)

Cost benefit of armed guards in schools

Example of a proposed high cost response to an emotional risk.

2016 dog bite fatalities

For comparison, at least 3 times as many children are killed on average each by dog bites, yet it is nearly impossible to get many communities to pass regulations to address the risk.

Chapter 4 – Due Process

Chapter 4 to to: 1. Modern Concept of ‘‘Property’’

Read paragraphs 11-30 in Goldberg v. Kelly

Resources

Slides: Executive Review of Rulemaking

 Slides: Theories of Regulation and Critiques of Regulatory Policy

Study Guide: Introduction to Due Process

Optional reading

Hahn, Robert W., and Paul C. Tetlock. “Has economic analysis improved regulatory decisions?.” The Journal of Economic Perspectives 22, no. 1 (2008): 67-84.

February 15

News

Sharp division among Republicans, tough questions after second day of special session

Does Louisiana depend on the kindness of strangers?

Assignment

Carry over materials on Vermont Yankee

Nuclear Power Basics

Perez v. Mortgage Bankers Association, No. 13-1041 (2015) – Just read section II, A & B, which discuss reiterating the limits of Vermont Yankee on judicial additions to APA procedure.

Read Chapter 5, 4. The “Logical Outgrowth” Test to H. Other Administratively or Statutorily Required Procedures—Hybrid Rulemaking.

Study Guide – The Procedures of Notice and Comment Rulemaking

Procedures of Notice and Comment Rulemaking

Review the Reg Map for Informal Rulemaking for a wrap-up of notice and comment rulemaking.

Read Chapter 5, H. Other Administratively or Statutorily Required Procedures—Hybrid Rulemaking to the end. This is narrative description of procedures and statutes governing rulemaking, not an analytical section. I will do a brief review of this material.

Study Guide – Executive and Congressional Review of Rulemaking

Slides – Executive Review of Rulemaking

 

February 13

News

LAWFARE

Trump Jan 2017 EO kept on hold

Assignment

Read from b. General Statements of Policy to 4. The “Logical Outgrowth” Test. You can skim the section in this assignment on Formal Rulemaking.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 98 S. Ct. 1197, 435 U.S. 519 (1978)

Study Guide for Vermont Yankee

Use this guide as you read the case to make sure you work through the issues. We are going to read this case carefully as part of our discussion about how the court and the agency handle a wicked regulatory problem: the disposal of nuclear waste.

Resources

Review guide – Introduction to Rulemaking II

Slides – Policy Statements and Agency Procedures

553 – The Procedures for Notice and Comment

 Reg Map for Informal Rulemaking – pdf

Nuclear Power Basics

NEPA

NRC fast track program for new reactors – the operating and construction permit process has now been consolidated, to reduce the opportunities for administrative delay.

A future for nuclear energy: pebble bed reactors – tech study for those who are interested.

Gas Makes Nuclear Power Radioactive – current economics of nuclear power.

February 8

News

Oral arguement in TRO on immigration order:

Key Cases

Dames & Moore v. Regan

Youngstown Sheet & Tube Company v. Sawyer

Assignment

Read chapter 5 to C. The Procedures for Formal Rulemaking. Work through the examples carefully so we can discuss them in class.

Study Guide: Introduction to Rulemaking Part I

Resources

Obama’s executive order on immigration.

This was found to be a rule that needed notice and comment by the lower courts, and the USSC split 4-4, leaving the lower court decision in place.

553

Rules in Louisiana:  RS 49:951

Reg Map for Informal Rulemaking – pdf

A Handy “Rulemaking Versus Guidance” Checklist For Federal Agency Counsel

What does a rule look like?

Clean Water Rule: Definition of ‘‘Waters of the United States’’; Proposed Rule

Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule

What does a guidance document look like?

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons

February 6

News

State of Washington & State of Minnesota v. Trump

Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs”

OMB Circular No. A-4 (referenced in the guidance document)

Assignment

Chapter 3, Section II and the remainder of the chapter.

APA Adjudication Provisions

These set up the framework for Formal/APA adjudications. We will parse these. Much of the framework is also applicable to non-APA adjudications.One of the reasons we care about whether these apply is that the Equal Access to Justice Act– 28 U.S. Code § 2412 (d)(1)(D) allows attorney’s fees for APA proceedings as described in APA 504 (A)(4) which refers to 554 proceedings.)

554 -Adjudications.

556 – Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557 – Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

558 – Licensing

LA Law Note – Title 49, Chapter 13, §961. Licenses

Resources

Formal Adjudications

Limiting Bias in Adjudications

Licensing and Permitting

February 1

Check back for updates if there is adlaw breaking news.

News

This was posted while were discussing OIRA on Monday: Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs

Trump EO on Immigration – Complaint as Filed

Suit by the Washington State Attorney General to enjoin the Immigration EO. Good list of the statements by Trump, including the signing statement, that indicate this is meant to be a Muslin ban.

Assignment

Read the executive order – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. This amends/partially replaces EO 12866, so we will also look at it.

Read Chapter 3 Section I, skip Section II for now, then Section III to G. Ex Parte Communications.

Resources

Introduction to Adjudications

Slides

 

 

January 30

Adlaw in the News

An executive order that is not like anything before, and which goes against traditional republican federalism

A proposed order that breaks both US and International Law

Have the Executive Orders Been Reviewed by Counsel?

Does the immigration executive order violate the 1965 Immigration and Nationality Act?

The Quiet GOP Campaign Against Government Regulation

Read this for class

Assignment

Finish Chapter 2

Guide: Removal and the Creation of Independent Agencies

Guide: General Regulatory Review and Coordination

Resources

OIRA

OMB – The White House site was taken down by Trump Administration

January 25

Adlaw in the News

More Executive Orders (called memorandum, for an unknown reason)

The Problem of Filling Desks in a New Administration

Citizens For Responsibility And Ethics In Washington v Donald Trump

We will look at this later when we discuss standing.

Assignment

INS v. Chadha, 462 U.S. 919 (1983)

Rather than using a casebook full of edited cases, we are going to read a smaller number of full text cases because that is what you read in real life. Read this carefully, using the guide to help identify the key issues. I expect class participation in the discussion.

Guide: The Legislative Veto and Separation of Powers

Read Chapter 2, Section III (B)(1) – Appointment (stop at Removal for this class)

Guide: The Appointments Clause

Addenda for last class

Recess Appointments – Article 2, Section 2:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) – allows the senate to determine when it is in session, thus blocking recess appointments.

Resources

How a bill becomes a law

Vesting and Take Care Clauses

“The executive Power shall be vested in a President of the United States of America.”  U.S. Const. art. II, § 1.

Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.”  Art. II, § 3.

Source of domestic power

Art II, sec. 2, cl 2 – the Appointments Clause

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Background Reference Materials for Immigration Discussion

1951 Refugee Convention.

This creates the US treaty obligation to take in persons who are fleeing persecution. It is the major limitation on Congress power to control immigration. The procedures on legally entering the country as a political refugee (except for Cuba) are so convoluted that we effectively ignore our treaty obligations. Most enter illegally and then petition for asylum status.

January 23

Study guides have been added.

Adlaw in the News (check back for breaking news)

Note that all of the Obama executive orders are now taken down:

White House – Executive Orders

Trump’s First Executive Order and Trump Executive Order On ACA: What It Won’t Do, What It Might Do, And When

Read these for class (it is only two pages). We will discuss it as an example of the power and limits of executive orders and I will give you some background on the ACA so you can appreciate the administrative law fights that are starting over dismantling and replacing it.

Priebus Memo Directing Agencies to Review All in Progress Rulemaking

This memo is the standard direction from a new administration to agencies to pause all in progress rulemaking except for rules necessary for urgent health and safety matters. It is a good statement of the limits on what a president can direct agencies to do.

Reading assignment

Chapter 2 to 4. Legislative Veto, p. 46. You can skim the through page 36 until you get to the Schor case at the bottom of p. 37. The earlier material deals with historical cases on the delegation doctrine. We will talk about these briefly, but only to develop the idea of an intelligible purpose. Schor sets out when adjudications can be delegated and when due process requires an Art III judge.

Guide: The Delegation Doctrine

Guide: Limits on Congressional Control of Agencies

Material for Class Discussion

Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)

[1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and

[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,

[3] the origins and importance of the right to be adjudicated, and

[4] the concerns that drove Congress to depart from the requirements of Article III.

Would this include locking someone up?

The Appointments Clause – Art II, sec. 2, cl 2

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Ineligibility Clause

Prohibit any Member of Congress, while serving in Congress, from being appointed ‘‘to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time,’’ and they provide that ‘‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.’’ U.S. Const. art. I, §6, cl. 2.

January 18

Required Text: (You can buy these online if they are not available. )

Examples & Explanations: Administrative Law, by Funk, Seamon, 5th ed., 2015 – available online at Amazon and BN.COM.

Additional materials such as cases will be posted on this WWW site. Any proprietary materials will be posted on Moodle. Most class days will include a discussion of Administrative Law in the News. Check the blog the morning before class for any updated news items. I will also provide study materials (modules) for specific topics to help you prepare for class and then consolidate your knowledge after our class discussion. If you have been provided a module as part of your assignment, read it carefully. We may not cover all the included material in class.

Class participation can affect your final grade.

Seating – this is a small class in a big room. Please sit toward the center on the first few rows.

Assignment for January 17th

Read Chapter 1, which is a general introduction to administrative law at the state and federal level. We will have a general discussion of the administrative law system. We will also discuss major changes in administrative law proposed by the new administration and Republican congressional leaders. The first 100 days are going to be an exciting time for administrative lawyers.

Introduction to Administrative Law – Slides

Resource Materials

White House – Executive Orders

Executive Orders back to George Washington

National Security Orders

Are these executive orders?

Statement by the President on Cuban Immigration Policy

Statement by Secretary Johnson on the Continued Normalization of our Migration Relationship with Cuba