Assignment 13

Readings

Read Chapter 6 to 3. Prudential Standing, p. 235.

Much of this assignment should be a review of materials on standing that you covered in Constitutional Law I. I am reviewing this material to make sure that everyone has the same base knowledge. We are going to see these doctrines against as we read cases and pleadings as we work through the remainder of the course.

Video – Chapter 6 – Introduction and Statutory Jurisdiction

PowerPoint – Chapter 6 – Introduction and Statutory Jurisdiction

Video – Chapter 6 – The Injury Test for Standing

PowerPoint – Chapter 6 – The Injury Test for Standing

Video – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

PowerPoint – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

Video – Chapter 6 – Procedural Injuries

PowerPoint – Chapter 6 – Procedural Injuries

Video – Chapter 6 – Causation for Standing

PowerPoint – Chapter 6 – Causation for Standing

This assignment is complete.

Assignment 12

Readings

Read Chapter 5 from C.The Procedures for Formal Rulemaking p. 176. to D.The Procedures of Notice-and-Comment Rulemaking, p. 180.

Read E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187 to 1. Executive Orders, p. 199.

Video – Chapter 5 – Other Exemptions from Notice and Comment Requirements

PowerPoint – Chapter 5 – Other Exemptions from Notice and Comment Requirements

Video – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues (Vermont Yankee), Ex Parte Communications 

Powerpoint – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues, (Vermont Yankee), Ex Parte Communications

This assignment is complete.

Assignment 11

Readings

Read Chapter 5 to C. The Procedures for Formal Rulemaking p. 176.

Video – Chapter 5 – What have we learned from The Regulators?

PowerPoint – Chapter 5 – What have we learned from The Regulators?

Video – Chapter 5 – Do You Have to Have Notice and Comment? 

PowerPoint – Chapter 5 – Do You Have to Have Notice and Comment?

This assignment is complete.

Assignment 10

Rulemaking in Action

Now that you have learned the basics of notice and comment rulemaking, we are going to look at rulemaking in action. This is PBS d0cumentary about a rulemaking that took place in the late 1970s. The EPA was required by the courts to make rules to implement amendments to the Clean Air Act (CAA) that were intended to protect the views in the Grand Canyon and other national monuments from being obscured by pollution. While this rulemaking took place more than 40 years ago, the fights over these rules continue today, and Grand Canyon is still fouled with air pollution. This park service webcam shows a live view of the Canyon. If you select the Clear/Hazy tab, you can see the contract between a clear day (when the winds blow the pollution away from the park and flying tours are limited) and a hazy day (when the conditions are less favorable and the pollution builds up in the park):

https://www.nps.gov/subjects/air/webcams.htm?site=grca

The documentary starts with the park ranger whose picture of the Grand Canyon stimulated environmental groups to lobby for amendments to the CAA. This was a period in US politics that is difficult to imagine today. Broad reaching environmental laws with ambitious goals had bipartisan support in Congress. Most of the major environmental laws, including the law that pulled the various free-standing pollution agencies into the EPA – were passed during the Nixon administration. Several had the support of Nixon, who hoped to win the support of liberals who opposed him on the Vietnam War. The documentary shows a Congressional hearing with several Congressmen who were the authors of our basic environmental law framework. The bipartisan support for environmental laws was at the same time that Congress and the country were bitterly divided over the Vietnam War and the Civil Rights movement.

The documentary then shifts to the air pollution division of the EPA and the process of drafting the regulations. While the documentary was recorded over 40 years ago, the basic process is essentially the same today. The major change is that today the courts are now much more particular about the published record for the rule, making the drafting process longer and more complicated. Note the arguing over what the vague words in the statute would allow the agency to do in the regulations. Also, note the involvement of the Carter White House. The agency was facing both a court-ordered deadline and a political deadline. Carter was mired in the Iranian Hostage Crisis and far behind Ronald Regan in the polls. Regan was to end the bipartisan support for environmental laws, and the agency was concerned that if they did not get the rule finalized before the end of the Carter Presidency, it would be watered down the Regan administration.

While not required by the APA, the EPA had public hearings on these regs, as well as taking written comments. These were held in the western states most affected by the regs. The bitter testimony against the regs and the EPA could be ripped from today’s headlines. As background, the country had suffered a gasoline shortage and long lines at the pumps due to the OPEC oil embargo. This led to programs to make gasoline from coal, as Germany had done during WWII when it was cut off from oil imports. This comes up in some of the testimony. As a college student, I participated in earlier CAA hearings, which I can report resembled those in this documentary.

After the hearings and reviewing the public comments, the agency is forced to modify its original rule and to redo some of the background record to be published in the FR. It finally gets the rule finalized – in record time – before Carter had to leave office. This is a revealing look at the agency process and it is unlikely we will ever see another like it. Some of the participants, such as Jim Hawkins, went on to become leaders in the public environmental movement after leaving the government. I have not been able to find out what happened to the photographer who started it all.

One invaluable part of the documentary is the coverage of the lawyers who represented the electric power industry whose coal-fired power plants would bear the brunt of the regulatory costs of these rules. You can see how they represented their clients’ interests and how they interacted with the agency lawyers. You should also note the difference in the office settings between the EPA staff and the industry lawyers.

The documentary is hosted by CSPAN:

The Regulators: Our Invisible Government

 

Assignment 9

Introduction to Rulemaking

Chapter 5 introduces rulemaking. We will look at rulemaking again in the chapters on judicial review because many of the critical administrative law decisions arose from challenges to rulemaking, or the failure to use rulemaking. Most of the major litigation against the Trump administration involved challenges to rules proposed by the Trump administration to repeal or massively restructure rules from previous administrations. These include rules governing immigration fights, greenhouse gas emissions and climate change,  protection of wetlands, and the census.

These political fights have moved to the administrative law world over the past 30 years because the political consensus behind laws such as the environmental laws has broken down since the laws were passed. This makes it difficult to update the laws as circumstances change through time. One obvious example is that the major environmental laws were passed in the 1960s and 1970s, before climate change was recognized as a global threat. Absence direction from Congress, the Obama administration used rulemaking to extend the regulatory reach of the Clean Air Act to greenhouse gas emissions. This use of agency rulemaking to extend a statute leads to charges of executive branch overreaching by the opponents of the changes.

As we will learn in the chapters on judicial review, agencies do have broad latitude to set policy through rulemaking, if Congress initially gave them a broad delegation of authority. We will also see that opponents of using rulemaking to change regulatory policy tend to change their view when their party wins the White House and uses rulemaking to support their views of what the law should be.

The new rules have to follow the required APA procedures and, as we will learn, the courts look hard at rules to assure that they are properly supported by law and in the published record. This leads to the rulemaking ossification discussed in the readings. Meeting these judicial standards leads rules to be hundreds of pages of fine print that take years to develop. In the cases where agencies try to rush the process with poorly supported rules, the courts will remand the rule back to the agency to be corrected and reissued.

Many of the concepts in this chapter will be more fully developed in the later chapters on judicial review. We will look in-depth at specific cases were rules were challenged in court and will see how the courts apply the doctrines introduced in this chapter.

Readings

Chapter 5 to III. RULEMAKING PROCEDURES, p. 148

Read D.The Procedures of Notice-and-Comment Rulemaking, p 180 to E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 188.

Todd Garvey. “A brief overview of rulemaking and judicial review.” Washington, DC: Congressional Research Service (2017).

This is an excellent reference for both rulemaking as covered in Chapter 5, and Chapters 6 & 7 on judicial review. For this assignment, read to Exceptions to the APA’s Section 553 Rulemaking Requirements, p. 6.

Video – Introduction to Rulemaking

PowerPoint – Introduction to Rulemaking

Video – The Procedures of Notice-and-Comment Rulemaking

PowerPoint – The Procedures of Notice-and-Comment Rulemaking

This assignment is complete.

Resource Materials

I would like you to scan these rules to get an idea of what a major rule looks like to get a sense of the complexity of modern rules. You do not need to read them, just see what has to go into a rule.

Clean Power Plan Final Rule, 80 FR 64662 (October 23, 2015)

Promulgated by the Obama administration to regulate greenhouse gases (GHGs) under the Clean Air Act. The authority for this rule was established (perhaps) by Mass. v. EPA, which we will read later in the court.

Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations

This is the rule promulgated by the Trump administration to repeal the Clean Power Plan and replace it with a new rule that requires little change in GHG emissions.

 

Assignment 8

Adlaw in the News – Senate Confirmation Hearing

Senate Judiciary Committee Holds Confirmation Hearings for Judge Amy Coney Barrett’s Nomination to U.S. Supreme Court

While the press has focused on guns and abortion as the hot issues for the hearings, the most important long-term effects of another very conservative justice on the court are likely to come from administrative law decisions.

October 10, 2020. The Senate Judiciary Committee has scheduled confirmation hearings to consider the nomination of Judge Amy Coney Barrett, currently of the United States Court of Appeals for the Seventh Circuit, as Associate Justice of the United States Supreme Court to replace Justice Ruth Bader Ginsburg who died on September 18. The hearings on the nomination are scheduled to begin at 9:00 am Monday, October 12, 2020 and to run through October 15.

At this point, the committee has not posted information on witnesses other than the panel to introduce Judge Coney Barrett on Monday and that she will testify thereafter. However, she has completed the Senate Judiciary Questionnaire and that and other key documents are provided below. However, these documents were only recently filed, so there are as yet no materials from others in response to the nomination apart from the letters posted by the committee in support. (Additional information will be posted here as it becomes available.)

Read the Nominee Questionnaire (SJQ).
Read SJQ Appendix 11.c.(Presentations and Sponsorship of those Events).
Read SJQ Attachments to Question 12.a. (Published Writings).
Read Attachments to Question 12.b. (Reports, Memos and Other Documents Prepared for Organizations.
Read Attachments to Question 12.c. (Testimony and Statements).
Read Attachments to Question 12.d. (Speeches and Talks).
Read Appendix 13.b. (Citations to Nominee’s Opinions and Orders).
Read Appendix 13.c. (List of Cases in Which Nominee Was a Member of the Panel but Did Not Write Opinions).
Read SJQ Appendix 13.f.(Cases in Which Nominee Participated in Which Certiorari to the Supreme Court Was Requested or Granted).
Read SJQ Appendix 14 (Cases in Which Nominee Recused).
Read SJQ Attachments to Question 19 (Information on Teaching, Including Details of Courses and Syllabi).
Read SJQ Supplement Attachments to Questions 12.a. 12.b. 12.d. and 12.e. (Additional Items Provided by Nominee on October 9 to Ensure Completeness of Responses to Items Under Question 12).
Read Letter in Support of Nomination, NSSF to McConnell and Schumer – Barrett Nomination. (The Letter Explains National Shooting Sports Foundation (NSSF) is America’s trade association for the firearm, ammunition, hunting and recreational shooting sports industry.)
Read Letter in Support of Nomination, Tennessee Secretary of State Tre Hargett to President Trump – Barrett Nomination.
Read Letter in Support of Nomination, 18 Secretaries of State to Chairman Graham – Barrett Nomination.
Read Letter in Support of Nomination, 22 State Attorneys General to McConnell Schumer Graham Feinstein – Barrett Nomination.
Access the Senate Judiciary Committee Hearings and Meetings Webpage for Further Information on Each Day of the Hearings.

Exam Info

I have had some questions about the exam and format. Some of this is still being worked out since we are in a new world with all online exams, but with normal grading. The exam will be at the assigned time for 4 hours. It will be delivered and taken through the exam software. The Registrar’s office and IT will give you more information about that if they have not done so at this point. A part of the exam will be objective – multiple-choice – questions. At this point, I have not determined if there will be an essay and short-answer sections as well. I will make that decision later in the term as I get more information.

Readings and Video

Legal cases and theory do not capture the human drama of high-stakes adjudications. One of the highest-stake adjudications is the immigration proceedings to determine if a refugee has a sufficiently “well-founded fear of persecution” to be allowed to claim asylum in the United States. We are going to watch a documentary, Well-Founded Fear, on the administrative hearing process in the immigration court system. This documentary is several years old, but the only thing that has changed is that the system is more crowded and less effective. This will give you a sense of how administrative hearings and due process play out in the real world. This is an article by the filmmakers on the difficulties they faced in making the film, which included opposition by immigration attorneys because the film was not sufficiently critical of the immigration judges:

Shari Robertson and Michael Camerini, Seven Ambiguities: Lawyers and the Making of Well-Founded Fear, A Law-Genre Documentary, 16 Fordham Intell. Prop. Media & Ent. L.J. 725 (2006).

This is a guide to watching the movie. It includes a history of the Immigration Act in force at the time the movie was filmed and information about procedure shown in the movie:

Well-Founded Fear – Facilitators Guide

One of the most important things to watch for is how the personalities on the examiners affect the process. Another is the how the lack of resources limits the information available to the judges. You will see that the judges do not have staff to research cases to support their review of the case, so they do the best that they can on their own. While some denials are reversed by the final appeal to an Immigration Judge, the proceedings are much the same.

Another problem is that just as there is no duty to provide counsel to applicants, there is also no duty to provide translators. The applicant must bring his/her own translator, which also leads to confusion. Note how confusion between the judges and the applicants can have catastrophic effects on the applicant’s cases. Some of this is hard to hear clearly in the film, so I am attaching this document which analyzes some of the linguistic problems. (Don’t worry about the jargon in the article, focus on what leads to confusion.)

Shannahan, Jennifer. “A narrative perspective on a well-founded fear: Officer stancetaking in a political asylum documentary.” University of Hawai’I Second Langauge Studies Paper 33 (2) (2015).

The movie is posted on the class Moodle page. While I have permission from the filmmaker to show the film in class, I do not have permission to post it on the general Internet.

 

 

Assignment 7

The quiz for Assignment 5 has been posted.

Readings

Finish Chapter 4

Video – Chapter 4: Applying Mathews

PowerPoint – Chapter 4: Applying Mathews

Video – Chapter 4: Bias in Administrative Hearings

PowerPoint – Chapter 4: Bias in Administrative Hearings

This assignment is complete.

Assignment 6

The quiz has been extended to 2 Oct

Readings

The Mathews case sets up an explicit balancing of costs and benefits to determine what process is due in administrative adjudications. This is a foundational modern constitutional and administrative law case. We are going to read a background article on the case and the SSID system before carefully reading the case. Note that the article is written from the perspective of the different participants in the system. You should also skim the resources to get an understanding of the size of the current SSID program. It employes most of the federal ALJs and it has become a major federal benefits programs.

This is the background story of Mathews v. Eldrige. This was written nearly 30 years after the case was decided. Since this article, the Social Security Disability system has significantly expanded as the 2008 recession drove many middle-aged people with some level of disability out of the workforce. The SSD system has been modified since the Mathews case, but the basic structure of the system is still close to what is described in Mathews and this article.

Mathews v. Eldridge (edited version)

Video – Introduction to Social Security Disability Insurance

PowerPoint – Introduction to Social Security Disability Insurance

Video – Mathews v Eldridge (1976): Getting to the Supreme Court

PowerPoint – Mathews v Eldridge (1976): Getting to the Supreme Court

Video – Mathews v Eldridge: The Supreme Court and the Mathews Analysis

PowerPoint – Mathews v Eldridge: The Supreme Court and the Mathews Analysis

This assignment is complete.

Resources

The Social Security Disability Insurance Program

Information about SSI – CBPP – Information about SSI – CBPP – PDF of Charts (2019)

The application process

Checklist for Online Adult Disability Application

 

 

Assignment 5 – Part 2

The quiz on Wooley and Bonvillian has been posted to Moodle

There was an error in the Quiz, which required me to revise it. Unfortunately, Moodle loses previous attempts when you revise a quiz. At that point, it showed 3 students had completed the quiz. If you had completed the quiz before 11:30 AM on Tuesday, you need to repeat it. If this is a problem, let me know.

New material has been posted to the Answers to Student Questions page.

Readings

Read Chapter 4 to B The Modern Rule (p. 123)

Paul v. Davis list of shoplifters

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) van Heerden – Round II – LSU Settles on stigma + claims

Warning – the news story is ONLY what the plaintiff’s attorney told the press. LSU did not comment. There is no reason to assume that facts in the story are a full and correct version of what actually happened. More generally, never trust legal opinions on facts – unless the court has appointed an independent expert, the court has no access to an unbiased version of the facts. The opinion usually represents the facts that the judge finds most attractive, based on the judge’s lay knowledge of the subject and personal views. As we will see later in the course when we look at the Katrina cases related to the facts in the news story on van Heerden, the judicial review of the facts in the Katrina cases is at odds with the scientific knowledge of why New Orleans flooded.

Video – Chapter 4  – The Employment Cases

PowerPoint – Chapter 4 – The Employment Cases

Video – Chapter 4 – Introduction to Liberty Interests

PowerPoint – Chapter 4 – Introduction to Liberty Interests

Video – Chapter 4 – Liberty Interests in Prisons

PowerPoint – Chapter 4 – Liberty Interests in Prisons

This assignment is complete.

Assignment 5 – Part 1

Adlaw in History – Update

The first Court-packing plan

During the Civil War, Lincoln and the Congress both packed the Court and expanded the lower courts to create new judgeships that Lincoln could fill.

Readings

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

Read Goldberg v. Kelly Pay particular attention to Justice Black’s dissent.

Video – Setting the Stage for Administrative Law Due Process

PowerPoint – Setting the Stage for Administrative Law Due Process

Video – Goldberg v. Kelly: Due Process and the New Property 

PowerPoint – Goldberg v. Kelly: Due Process and the New Property

Part 1 is complete.