Adlaw in the News – What is the ALJ Controversy?
This is a continuing news item. The case was decided last summer, but it is now on cert. review to the Supreme Court, so we do not know how it will come out. We are looking at this case and the controversy over the status of ALJs – employee, inferior officer, or what – as a review of some of the topics covered in Chapters 1-3. You are not responsible on the exam for the specific cases or law in this item, but you should view the video and review the materials as a review of concepts from our previous readings.
Video – Adlaw in the News: 5th Circuit Panel finds ALJ system unconstitutional
These are the annotated documents from the video:
Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446 (5th Cir. 2022) – majority opinion
You should take a look at the annotated sections of the dissent, which were mentioned, but not reviewed in the video:
Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446 (5th Cir. 2022) – dissent
Assignment – Part 1
Introduction
This week we are reading less about the technical legal issues in administrative law and looking harder at what administrative law looks like in real life. We are going to watch one of the only two documentaries that have been made about the US administrative law system. (We will watch the second next week.) We are also going to do a deep dive into the most common ALJ adjudications, Social Security Disability Insurance (SSDI) determinations. The constitutional due process requirements for terminating benefits were litigated in the Mathews case. The Supreme Court has not explicitly overruled Goldberg, but since the Goldberg welfare system is gone, Goldberg is now a historical footnote. In contrast, Mathews has become one of the most important constitutional law cases on due process in all areas, not just SSDI determinations.
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 case in constitutional and administrative law. Before reading Mathews, we are going to learn some background information on the Social Security Disability System.
Video – Introduction to Social Security Disability Insurance
PowerPoint – Introduction to Social Security Disability Insurance
For more info, also see: Supplemental Security Income Home Page — 2022 Edition
Next, we are going to read the background story of Mathews v. Eldrige. This chapter was written nearly 30 years after the case was decided. Since this time, the Social Security Disability system has significantly expanded, most recently 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.
Now we will read the case itself:
Mathews v. Eldridge (edited version)
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
Finish reading 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
Assignment – Part 2
A major objective of this course is to show you how the administrative system works. You cannot learn this by just reading cases and statutes. Our deep dive into Matthews shows the problems in running a disability benefits program whose enabling legislation and assumptions diverge from the actual workplace. The claimant’s credibility – in theory – is not an issue in SSDI determinations because they are based on written medical records.
We are now going to look at a system where the claimant’s credibility is paramount – determinations of whether a refugee has a sufficiently “well-founded fear of persecution” to be allowed to claim asylum in the United States. This is a system that depends on the credibility of the individual refugee’s story as told to an administrative judge with very limited resources to independently verify the story. These can be life and death determinations.
We are going to watch a documentary, Well-Founded Fear, on the administrative hearing process in the immigration court system. To my knowledge, there are only two documentaries that have been shot inside the world of administrative law. In each case, it was a miracle that the filmmakers were able to get permission to observe the agency. (We will watch the second one, The Regulators, as part of our Chapter 5 materials on rulemaking.
This documentary was shot in the late 1990s. While there have been some shifts in immigration rules since then, the basic law for refugee status has not changed. The major change to the adjudication process is that the system is more crowded and thus less effective now than in 2000. This film looks at the initial review process where an administrative judge (not an ALJ immigration judge) reviews the application and determines whether to grant refugee status. If the AJ denies refugee status, the claimant can request an appeal before the ALJ. (Much like final review by an ALJ in SSDI determinations.)
You have two short readings before viewing the film. The first 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:
You should also watch this interview with the authors:
Well-Founded Fear – Shari Robertson and Michael Camerini – Behind the Lens
The second is a guide to watching the movie:
Well-Founded Fear – Facilitators Guide
It includes a history of the Immigration Act in force at the time the movie was filmed and information about the procedures shown in the movie. Look carefully at the questions it raises about the role of the AJs in determining credibility. Watch the film carefully to see places where this process breaks down.
After you have had a chance to view the film, you will be required to post comments on a course forum about the problems you see with the process. (The forum will be opened later in the week, after you have time to read the materials and watch the movie.) Think about the pressures on the officers. Emotionally, this might be the worst job in administrative law. We are watching the film on Moodle because I have permission from the filmmakers to show it to my classes, but it is not generally released to the public.
Video – Well-Founded Fear
Forum Assignment for Well-Founded Fear
Assignment – Part 3
Introduction
Legislation creates agencies and gives them their powers. As an administrative lawyer, you must always start with the legislation that covers the area that affects your client, be the client an agency, a regulated party, or an interest group. If the agency has been given the power to make rules and has made rules on the subject, then those rules have the same effect as legislation if they are properly promulgated and stay within the powers granted to the agency. We are going to look at the federal rulemaking process. State rulemaking, and Louisiana in specific, parallel the federal model. The rules make up the Code of Federal Regulation (CFR). Understanding and using the code provisions are the heart of most administrative law practice. This includes commenting on proposed rules and attacking the legality of new rules. We will be taking a deep dive into making and challenging rules for the rest of this course. Many of these rules will deal with environmental law, including climate change. While environmental law was a bipartisan project in the 19060s and 1970s, it has become one of the most polarized areas of law during the three decades since Congress passed the last bipartisan environmental law. The Supreme Court majority frequently uses environmental law cases to set standards for the exercise of agency powers.
What does a rule look like?
Before we talk about the APA procedures on rulemaking, you should see what a notice and comment rule posting rule looks like. I am using these two climate change rules because they are currently before the Court in West Virginia v. EPA, a case that may fundamentally change the standards for judicial review of agency rules.
Scan these rules to get an idea 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 course.
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.
Both of these rules are dead, as we will discuss later in the course when we look at the new case of West Va. v. EPA. The Biden administration has proposed a new rule to replace these that it says is consistent with the limitations imposed by West Va. v. EPA.
Readings
Chapter 5 to III. RULEMAKING PROCEDURES, p. 148 and 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.
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.
The Regmap – a Review of Informal Rulemaking – simplified
The Regmap – a Review of Informal Rulemaking – Detailed
This is a graphical review of informal rulemaking. I have used parts of the simplified version in the presentations.
Video – Introduction to Rulemaking
PowerPoint – Introduction to Rulemaking
Video – The Procedures of Notice-and-Comment Rulemaking
PowerPoint – The Procedures of Notice-and-Comment Rulemaking