CONGRESS ENACTS A STATUTE TO SOLVE A PROBLEM

Does the statute include rulemaking authority?

Is disclosure of comments for notice and comment rulemaking required?
Does the statute contain on the record language?
Does the statute grant the power to act retroactively?
Does the statute create a cause of action?
Does the statute preclude review?
Is the plaintiff within the zone of interest?
Does the statute specify when a rule is final and/or reviewable?
Does the statute expressly require exhaustion?
Does the statute delegate interpretive authority to the agency? Mead
Is the statutory provision clear and unambiguous? Chevron

AGENCY INTERPRETS ACT AND ISSUES RULES

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Notice and Comment Rulemaking [DEFAULT]

o Goal: reasoned decision-making
o Initiation
Congress mandates rulemaking by legislation
Top down: proposed by Congress or the President
Bottom up: proposed from within the agency
Private initiative
o Informal lobbying
o Formal petition (APA 553(e), 555(e))
o Exceptions
Exceptions to APA 553(b) notice and comment process
No force of law
No requirement of legislative authorization
Must be published (usually in the Federal Register) pursuant to APA 552(a)(1)
(D) (FOIA)
Advantages to non-legislative rulemaking
o More efficient
o Creates uniform application of the regulations across the field offices
o Gives regulated entities notice of possible future action (avoiding due
process claims later on)
Problems with non-legislative rulemaking
o Not legally binding
o Regulated entities dont contribute to the process
o Agencies may have incentive to try to slip things through quickly or
change interpretation regularly
o Difficult to get judicial review
Challenging non-legislative rules: The rule should have been formally
promulgated in accordance with notice and comment requirements.
APA 553(b)(3)(A) exceptions
Procedural rules
o Set forth the mechanisms for enforcing or affording substantive rights, but
are not substantive rights in themselves
o JEM Broadcasting Co., Inc. v. FCC (1994): hard look rules prohibiting a
revised application and promulgated without notice and comment were
procedural and did not invoke 553 because the applicants rights were
not so significant as to require notice and comment safeguards
1

Test

Overruling Air Transport Assn of America v. Dept of

Transportation (1990): even though the rule in question was
procedural, 553 notice and comment were required because the
agency applied a substantive value judgment (citing American
Hospital Assn v. Bowen (1987))
Does the rule alter substantive rights?
Are those rights of sufficient gravity to outweigh the agencys
efficiency concerns and invoke notice and comment
requirements?

Good cause
o Impracticable
o Unnecessary
o Contrary to public interest
Balancing test: agency expertise versus public participation
Must be substantiated on the record (APA 553(b)(3)(B))
Interim final rule: time sensitivity requires a rule to be published
before notice and comment, with amendments later on
Direct final rulemaking: rule is published with a deadline; if there
are objections before the deadline, then the rule will go through
the normal notice and comment procedure; if no objections, rule
will be final as is without notice and comment
Military and foreign affairs
Agency management, personnel, public property, loans, grants, benefits,
contracts
Interpretive rules (statements of interpretation of the regulations)
When is something an interpretive rule that does not require notice and
comment?
o (1) New Duty Test: Metropolitan School District v. Davila (1992)
Does the agency action create a new legal duty?
How does the agency characterize the statement?
Is the agency action intended to create new law, rights, or
duties?
o (2) Other New Duty Test: American Mining Congress v. Mine Safety &
Health Administration (1993)
Does the agency action create a new legal duty?
Does the agency have rulemaking authority?
Does the rule contradict or revise a prior legislative rule?
Is the rule published in the Federal Register or CFR?
o (3) When the agency lacks authority to undertake 553 rulemaking
Policy statements (statements of intention to enforce the regulations in a particular way)
When is an agency action a policy statement that does not require notice and
comment?
o (1) Force of Law Test (New Duty/Binding Effects): American Hospital
Assn v. Bowen (1987)
Does the agency action have the force of law?
What is the present effect?
Does the action prevent future discretion by agency
decision-makers (are they bound by it)?
The reviewing court will also consider how the agency
characterizes its own conduct
o (2) When the agency lacks authority to undertake 553 rulemaking
2

Notice of Proposed Rulemaking (NPRM)

Affected parties must have sufficient notice to alert them that their interests are at stake
if there is to be a meaningful opportunity to participate in rulemaking
Method of notice (APA 553(b))
Publishing the proposed rule; OR
Description of the subjects and issues involved
o Fair notice must be given to those whose interests may be affected
Test for adequate notice:
(1) The rules ultimately adopted must be a logical
outgrowth of the proposal; OR
o Chocolate Manufacturers Assn v. Block (1985)
(chocolate milk was originally exempted from the
rule, but then included on a list of prohibited foods
in the final rule)
(2) The final rule may not materially alter the issues
involved in the rulemaking and may not substantially
depart from the proposal
Subject to judicial review
o Includes Preamble and Proposed Rule
Comment
APA 553(c)
Flexible comment requirements with a focus on fairness
Policy: public participation and diversity of viewpoints
Ex parte communications: no ban on ex parte communications in APA 553
But see
o Sangamon Valley Television Corp. v. United States (1959): due process
prohibits ex parte contact when rulemaking involves conflict claims to a
valuable privilege
o HBO v. FCC (1977): any communication prior to NPRM is permissible, but
if it affects the outcome, it has to be on the record; after NPRM, all
communication has to be through formal comment or on the record
A broad reading of Vermont Yankee Nuclear Power Corp. v.
NRDC (1978) may require a very narrow reading of APA 553
provisions, therefore casting doubt on decisions like HBO that
affect agency action by interpreting 553 to require more or
something other than what the agency did in those cases
Agency may voluntarily ban ex parte communications
o Easier to apply a blanket ban than try to figure out when they are allowed
and when they are prohibited (e.g. during hybrid rulemaking)
Sierra Club v. Costle (1981): court chose not to follow HBO v. FCC
(informal rulemaking did not ban ex parte communications, but the
Clean Air Act in this cases did require docketing and evaluation of
ex parte communications)
o Agency may want to avoid appearance of impropriety
o Ex parte communications will generally be allowed during informal
rulemaking unless the court finds undue pressure. DC Federation of
Civics Assn v. Volpe (1971)
Two conditions must be met before undue pressure found:
(1) The content of the pressure on the administrator must
be designed to force him to decide upon factors not made
relevant by Congress in the applicable statute
(2) The administrators determination must be affected by
those extraneous considerations
3

Final Rule
APA 553 (b), (c)
Agency re-evaluation and amendments
General statement of basis and purpose included in the final rule
The rules ultimately adopted must be a logical outgrowth of the proposal. Chocolate
Manufacturers Assn v. Block (1985)
30 days notice required before rule may be enforced
o Application
Adjudication
Judicial Review
o Agency fails to act
APA 551(13)
o Agency delays in acting
APA 706(1)
Telecommunications Research & Action Center (TRAC) v. FCC (1984): available
remedies for agency delay are mandamus (forcing the agency to act immediately) or
issuance of an order setting another timetable (and case dismissed without prejudice)
Common law factors when deciding whether agency delay requires remedy
o (1) Time taken to make decision must be reasonable
o (2) Congress has provided a timetable
o (3) Economic regulation where health and welfare are at stake
o (4) Issues of competing priorities
o (5) Nature and extent of interests produced by delay
o (6) The court does not need to find any impropriety to find that agency
delay is unreasonable
o Agency denies request
APA 706(2)(A)
Arbitrary and capricious standard of review
Formal Rulemaking
o APA 556-557
o APA 553(c)
Adjudicatory process (cf. informal rulemaking which is more legislative than judicial)
Pleading stage: proposed rule; written response
Trial stage: testimony; documentary evidence; cross-examination
Decision: formulation of final rule
Only invoked if statute requires a hearing on the record
United States v. Allegheny-Ludlum Steel Corp. (1972): statutory hearing
requirement is not sufficient to require formal rulemaking without a requirement
that rules be made on the record
o The transcript is the record in formal rulemaking
United States v. Florida East Coast Rwy. Co. (1973): formal rulemaking requires
an unambiguous and express statutory mandate such as on the record after
agency hearing; there is a presumption against formality
Hybrid Rulemaking
o Organic statute exists that governs agency rulemaking in addition to the APA
**Always look to enabling statute when determining what notice and comment
procedures govern rulemaking
Often referred to as the ossification of rulemaking (hardening or calcification)
Vermont Yankee Nuclear Power Corp. v. NRDC (1978): courts may not require
procedures in addition to those specified in the APA or other applicable statutes (e.g. the
enabling act); hybrid rulemaking remains unaffected
o

o
-

A broad reading of Vermont Yankee may require a very narrow reading of APA
553 provisions, therefore casting doubt on decisions like Chocolate
Manufacturers and HBO that affect agency action by interpreting 553 to require
more or something other than what the agency did in those cases
Regulatory Flexibility Act: requires agencies to consider the economic impact of its
rulemaking activities on small businesses
Agencies must create Regulatory Flexibility Analysis when triggered by a significant
economic impact on small entities. 603(a)
Final RFA must be included with the promulgation of the final rule. 604
RFA compliance is subject to judicial review pursuant to 611 and APA 706
Executive Order 12866: requires agencies to assess the benefits and costs of all major rules
or significant action. 3(f)
Ensures that agencies promulgate rules only when necessary (centralized review of
agency action).
6 require steps by agency in addition to providing notice and enabling comment
Office of Information and Regulatory Affairs (OMB) is responsible for approving or
disapproving agency compliance with regulatory requirements, including EO 12866
EO 12866 compliance is not subject to judicial review
Information Quality Act: requires agencies to issue guidelines and establish mechanisms
allowing affected persons to obtain correction of information or complain about the accuracy of
the information disseminated by the agency
The agency must then report on any complaints and responses to the OMB Director
Office of Management and Budget: serves as tribunal before which agency conflicts are
resolved

Other
o Negotiated Rulemaking (NR)
Agency decides whether NR is in the public interest
Agency publishes notice in Federal Register of intent to use NR
Public has 30 days to comment on issues and nominate the negotiating
committee
If agency does not go forward wit NR, it must publish its decision and reasons in the
Federal Register
If agency does go forward with NT, it establishes a negotiating committee (agency
nominates a facilitator and committee consents)
Agency responsibilities
Pay for facilitator
Pay for expenses of necessary parties who lack funding
Provide administrative support
Possible outcomes
Full consensus: committee presents proposed rule to agency, which decides
whether to accept or reject ( 553 notice and comment rulemaking commences if
accepted)
Partial consensus: committee may or may not present proposed rule to agency
No consensus: agency decides whether to go forward with 553 notice and
comment rulemaking
When does NR apply?
Is the dispute mature and ripe?
Must participants compromise fundamental tenants?
Can affected interests be represented?
Are there numerous diverse issues at play?
Will one interest dominate negotiations?
Why wouldnt participants operate in good faith?
5

No judicial review of agency actions under NR

Rulemaking by adjudication
Can the agency formulate and apply general policy standard for the first time in
adjudication?
Advantages
o Avoid influence by interest groups (insulated from political pressure)
o More efficient/cost-effective
o Narrow policy movements rather than grand pronouncements by
rulemaking
Conditions at issue are not static
Issues may not be ripe for global judgments
Too hard to weigh competing interests
Problem is so technical and specialized that it cant be
summarized in one rule
o Agency can select the defendant
Disadvantages
o Less predictable
o Less consistency
o Less agency accountability
o Problems with notice to affected non-parties
o Unable to make broad policy
o Public input may be desirable
Legal constraints on choice of rulemaking versus rulemaking by adjudication
Agency can use APA 553 only if Congress authorizes agency to promulgate
substantive rules (shall promulgate regulations)
The ultimate choice cannot violate individual due process rights: sufficient notice
of legal obligations?
o Injunctions usually do not trigger due process rights because property is
not being taken from the regulated entity
o General Electric Co. v. EPA (2002): guidance documents issued by the
agency were invalid absent notice and comment because the applicant
following the agency guidance was assured it had satisfied certain
requirements for a permit; agency could not issue a fine
o Appalachian Power Co. v. EPA (2005): guidance document significantly
broadened agency rule and thus was invalid absent notice and comment
Precedent:
SEC v. Chenery Corp. (1947): agency not precluded from choosing adjudication
over rulemaking merely because adjudication had a retroactive effect
o Balancing test: the retroactive effect must be balanced against the
mischief of producing a result which is contrary to a statutory design or to
legal and equitable principles
o Agencies have discretion to fill the gaps in regulation through adjudication
NLRB v. Wyman-Gordon Co. (1969): adjudication serves as a vehicle for
developing policies which are later announced as rules
Rule:
NLRB v. Bell Aerospace Co. (1974): it is within the agencys discretion to choose
between rulemaking or adjudication to announce new rules, but such a decision
is still subject to judicial review if it amounts to an abuse of discretion (hard to
prove) or a violation of the enabling act
o Factors for judicial review:
Could a generalized standard be framed with more than marginal
utility?
6

Is a case-by-case manner the best way to develop standards?

Retroactivity
Simply another factor in determining appropriateness of rulemaking by
adjudication versus rulemaking
o Retroactivity of APA 553 rules is usually prohibited unless expressly
permitted by Congress. American Hospital Assn v. Bowen (1987)
Balancing test from SEC v. Chenery Corp.
Retail, Wholesale and Department Store Union v. NLRB (1972): identified factors
for the Chenery balancing test (the agency will usually prevail on this balancing
unless there is already a rule in place which the agency is changing
inappropriately)
o Whether the particular case is one of first impression
o Whether the new rule represents an abrupt departure from well
established practice or merely attempts to fill a void in an unsettled area
of law
o The extent to which the party against whom the new rule is applied relied
on the former rule
o The degree of the burden which a retroactive order imposes on a party
o The statutory interest in applying a new rule despite reliance of a party on
the old standard

AGENCY ENFORCES PRIVATE PARTY COMPLIANCE

-

Adjudication
o APA 551
o APA 555
Applies to all adjudications
Requirements
Persons appearing before the agency can be represented by counsel
An interested person can appear before an agency so far as the orderly
conduct of public business permits
Agencies must conclude matters presented to them
555(e) requires that agencies give prompt notice of denials with a brief
statement of the grounds
o Formal Adjudication [Exhaustion of Administrative Remedies]
Triggered by 554(a): required by statute to be determined on the record after
opportunity for an agency hearing
What does on the record mean (i.e. when is formal adjudication required)?
Formal rulemaking context:
o United States v. Allegheny-Ludlum Steel Corp. (1972): statutory hearing
requirement is not sufficient to require formal rulemaking without a
requirement that rules be made on the record
o United States v. Florida East Coast Rwy. Co. (1973): formal rulemaking
requires an unambiguous and express statutory mandate such as on the
record after agency hearing; there is a presumption against formality
Seacoast Anti-Pollution League v. Costle (1st Cir. 1978) (presuming formality
without congressional denial): even when a statute does not require a hearing
on the record, formal adjudication requirements depend on the substantive
nature of the proceedings; Congress must clearly deny formality
City of West Chicago v. NRC (7th Cir. 1983) (presuming informality without
congressional intent): when a statute does not require a hearing on the record,
formal adjudication will not be required unless there is clear congressional intent
to require such
7

Chemical Waste Management, Inc. v. EPA (DC Cir. 1989) (Chevron deference):
when a statute does not require a hearing on the record, formal adjudication
may be required in certain circumstances; the agencys interpretation of the level
of formality will be determined under Chevron Review
Investigation
Notice ( 554(b))
Understanding the nature of the charges with an opportunity to respond
Administrative complaint sent to potential defendant (often as a letter)
Due process challenge (see below)
Settlement (?)
Consent decree
Hearing
Before ALJ ( 556(b)) or agency head
o Employee of the agency
o ALJ only removed for cause
556(c), (d) governs rights and responsibilities of presiding officer, evidence,
and burdens of proof
o No discovery rights
o Agency has statutory subpoena power
o FRE do not apply (agencies may make their own rules of evidence)
Different procedural rules
Opportunity to cross-examine
Ban on ex parte communications ( 554(c), 557(d)) [see also separation of
functions]
o Elements
Ban on ex parte contacts relevant to the merits of the proceedings
By interested parties outside the agency (or agency insiders?)
o Key inquiries:
Is this an impermissible ex parte communication?
If so, what is the remedy?
(1) Place the prohibited communication on the public
record ( 557(d)(1)(C))
(2) ALJ or presiding officer may require the offending party
to show cause why it should not be sanctioned (i.e. have
its interest voided in some way) ( 557(d)(1)(D))
o PATCO v. FLRA (1982): test is whether the
agencys decision-making process was irrevocably
tainted so as to make the ultimate judgment of the
agency unfair, either to an innocent party or to the
public interest that the agency was obliged to
protect
o Factors to determine whether decision should be
voided:
Gravity of ex parte communications
Whether the contacts may have influenced
the agencys ultimate decision
Whether the party making the improper
contacts benefited from the agencys
ultimate decision
Whether the contents of the
communications were unknown to other
parties (with no opportunity to respond)
8

Why is there a ban?

Adjudication affects individual rights, so there is a due process
concern
Protect the exclusivity of the record
Ensure no appearance of impropriety

Decision
Made on the record ( 556(e))
554(d), 557
If not appealed, the ALJs decision becomes the decision of the agency
Separation of functions requirement ( 554(d))
o Prohibits ALJ/decision-maker from consulting with a person or party on a
fact in issue
o Unless the remaining parties are put on notice and given an opportunity
to participate
o Applies to intra-agency communications
Persons outside the agency ( 557(d))
Agency Review
APA 557
De novo review (no deference for ALJ decision)
The ALJ decision becomes part of the record for review
Informal Adjudication (non-APA)
APA 555
No APA ban on ex parte communications
Informal adjudication is outside the APA or bound by hybrid procedures
Technically includes all agency actions that are not 553 rulemakings or APA
formal adjudications
o Government grants
o Licensing decisions
o Contract determinations
o Determinations under entitlement programs
o Responses to requests for exceptions, waivers and exemptions
o Responses to requests for interpretations, clarifications, and modifications
to/or existing agency rules
Also include informal preliminary decisions in 553 rulemakings and formal
adjudications
o Briefing schedules
o Hearing dates
o Settlement negotiations
o Consent decrees
Elements/requirements
Reasonable time
Prompt notice of decision
Grounds for decision
Participation
Due Process challenge
Constitutional basis
Prohibits the federal government and the states from depriving anyone of life,
liberty, or property without due process of law

Whether vacation of the agencys decision

and remand for new proceedings would
serve a useful purpose

o 5th Amendment (federal government)

o 14th Amendment (states)
Procedural due process: government officials may deprive people of life, liberty
or property only if fundamentally fair procedures are followed
Key inquiries
(1) Is process due at all?
o Applies only during adjudication (not rulemaking)
Small number of people affected (adjudication) versus equally
applicable to populace (rulemaking). Londoner v. Denver (1908)
(an agency decision particularized to the situation of each property
owner affect required a hearing with the right to present
arguments and evidence); Bi-Metallic Investment Co. v. State
Board of Equalization (1915) (when an agency imposes a tax on
an across-the-board basis without attention to the particulars of
any taxpayer, due process does not require individualized
hearings)
Extent of impact on each person
Individualized determination (adjudication) versus generalized
determination (rulemaking)
o Traditional model: due process violated only if government infringed a
right that was recognized at common law
Property interest in tangible property, fines, taxes
Liberty freedom from bodily restrain, right to contract, right to
engage in common occupations of life, right to acquire useful
knowledge, right to marry, right to establish a home and raise
children. Meyer v. Nebraska (1923)
No right to individual entitlements created by statute
o Modern additions:
Property a legitimate claim to statutory entitlement
Board of Regents v. Roth (1972): constitutional property
interest hinges on the terms of a law creating rights and
recognizing an entitlement
o Even if a statute includes no individual
entitlement, a good lawyer would still argue that
there is a reasonable expectation of entitlement
under state law as long as eligibility requirements
are met
Perry v. Sindermann (1972): in the absence of entitlement,
less formal assurances or state practices may create an
entitlement and, therefore, a property interest
Note: Roth-type statutory entitlements have become
precarious in light of (1) increased state discretion; and (2)
private administration and enforcement
Liberty interest in reputation. Wisconsin v. Constantineau
(possible right to reputation); Paul v. Davis (1976) (stigma plus
test: damage to reputation through defamation, without an actual
altercation of the persons legal status, did not amount to a
deprivation of liberty); Shands v. City of Kennett (1993)
(employers accusations must be so damaging to reputation as to
make it difficult or impossible to escape stigma, or to foreclose
other employment opportunities)
(2) If some process is due, what kind of process is due?
o Essential elements
10

Notice
Must give sufficient information to apprise parties of the
action and enable them to present their objections
Actual notice not always required
o What is reasonable notice under the
circumstances? Mullane v. Central Hanover Bank
& Trust Co. (1950)
An opportunity to be heard
Usually, a meaningful opportunity to be heard must be
available before deprivation of liberty or property (prior
hearing)
Exceptions: exigent circumstances or impracticality
Paradigm: the judicial trial
Is the process adequate? Mathews v. Eldridge (1976) (balancing test for
determining what process is due)
(1) Individuals interest
How weighty is the individuals interest and what are the
consequences if not additional procedures are granted?
The stronger the interest, the more procedure is required
(2) Risk of erroneous deprivation through procedures used
Will added procedures improve accuracy?
The greater the risk, the more procedure is required
(3) Governments interest
How much will additional procedures cost (fiscally and
administratively)?
The stronger the governments interest, the stronger the
argument in favor of minimizing procedures
The exception to the rule
Goldberg v. Kelly (1970): welfare benefits could not be terminated
without a hearing prior to termination (even though a hearing was
available after termination) because of the grievous loss likely to
be suffered by a person facing wrongful termination of benefits
(balancing grievous loss versus states interest)
Note: Goldbergs grievous loss test goes only to the amount of
process due, not whether the property or liberty interest exists in
the first place; so the property interest is still determined by
whether the statute creates an entitlement (see Roth)
See also: Univ. of Missouri v. Horowitz (1978) (dismissal for academic
reasons did not require a formal, advance hearing); Osteen v. Henley
(1993) (no right to require counsel in a student disciplinary proceeding)
Bottom line: something short of a trial-type hearing is generally okay; the
required formality of an administrative process is still unclear
Minimum requirements for entitlement benefits:
Pre-termination notice
Pre-termination hearing
Right to an attorney (but not court-ordered)
Right to present and cross-examine evidence
Right to oral presentation of evidence and arguments

o
o

JUDICIAL REVIEW
-

Judicial Review in general

11

Reasons for review

Did the agency act in excess of its authority? APA 706(2)(C)
Did the agency act unconstitutionally? APA 706(2)(B)
Did the agency act in violation of procedural requirements? APA 706(2)(D)
Did the agency unlawfully fail to act? APA 706(1)
Did the agency improperly exercise its substantive authority?
o Balancing of judicial review
Ensuring legality and legitimacy of agency action affecting individuals rights
Ensuring that courts do not usurp agency authority
o Questions for review
Questions of fact
Questions of law
Mixed questions of fact and law
Cause of action
o Common law
Courts create causes of action
o Organic statute
May provide for right of review directly in court, e.g., DC Circuit
o APA 702
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof
Creates a fallback cause of action for judicial review
Who can bring a suit under 702?
Plaintiffs who can show injury in fact
Court may still dismiss the claim on prudential grounds
Exclusions
o Narrowly construed
Presumption of review
Abbott Laboratories v. Gardner (1967): there is a presumption of judicial review,
and there must be clear and convincing evidence of contrary legislative intent;
here, the statute did not foreclose pre-enforcement review simply by omission
(based on legislative scheme)
Unless it is fairly discernible that Congress intended otherwise. Block v.
Community Nutrition Institute
Presumption against review of agencys failure to take enforcement action. Heckler v.
Chaney
o APA 701(a)
(1) Statute precludes judicial review [applies when statute mentions judicial review]
Specific statute prevails: If there is a statute that explicitly precludes review or
provides another form of review, the specific statute trumps APA 702 cause of
action
When does a silent statute create an implicit preclusion of review?
o Block v. Community Nutrition Institute (1984): judicial review on behalf of
parties other than the milk handlers was implicitly precluded by the statute
that explicitly granted review only to milk handlers
*Note: court changed clear and convincing standard from Abbott
Labs to fairly discernible, making is easier to find an implied
preclusion of judicial review
(2) Agency action is committed to agency discretion by law [applies when statute does
not mention judicial review]
o

12

Citizens to Preserve Overton Park v. Volpe (1971): judicial review is not available
when statutes are drawn in such broad terms that in a given case there is no law
to apply (i.e. no discernible statutory authority against which the court can
determine the legality of the agency action)
o But see Webster v. Doe (1988): although the statutory clause allowing
termination based on the agency directors discretion was too vague to
allow judicial review, plaintiffs constitutional claim was still reviewable
even if his statutory claim was not
Heckler v. Chaney (1985): judicial review is not available when there is no
meaningful standard against which the court can review agency action
o There is a presumption against review of non-enforcement decisions
o J. Brennan concurrence: possible exception to the presumption against
reviewability of non-enforcement actions
(1) Agency claims it has no statutory jurisdiction
(2) Agency engages in a pattern of non-enforcement in the face of
clear statutory language
(3) Agency refuses to enforce a lawful regulations
(4) Non-enforcement decision violates constitutional rights (e.g.
Webster v. Doe)
Constitutional challenges
o Article III, 2: case and controversy
Cases arising under the Constitution, the laws of the US, treaties, or cases affecting
ambassadors and other public ministers or consuls
Controversies between two or more states, between a state and citizen of another state,
between citizens of different states, and between a state or citizens and foreign states or
foreign citizens
o Standing (Jurisdictional)
Whether the plaintiff is the appropriate person to represent a dispute to the courts
Requirements
(1) Injury in fact; THAT IS
o Must be distinct and palpable, not abstract or conjectural or
hypothetical
o Must be particularized
o Must be imminent
(2) Fairly traceable to the defendants allegedly unlawful conduct (causation);
AND
o Concerns the causal connection between the unlawful conduct and the
injury
o Claimed causal connection may be one possibility among many
possibilities
(3) Likely to be redressed by the relief requested (redressability)
o Concerns the causal connection between the relief requested and the
injury
Lujan v. Defenders of Wildlife (1992) (redressability would require
an order against agencies not a party to the case)
Redressability may not be met if there is not a continuing harm
and if plaintiff is not entitled to compensation for past harm
The deterrent effect of a civil penalty toward future violations has
been held sufficient to satisfy redressability. Friends of Earth, Inc.
v. Laidlaw Environmental Services, Inc. (2000)
Lack of standing dismissed as lack of subject matter jurisdiction
Standing must be shown with the same level of proof as is required for that stage of
litigation
13

Primary standing issue under the APA is the missing step: a lack of regulation is not
redressable, so the court will have to command the agency to act, which will force
regulated entities to comply, which may then create the proper case and controversy
Citizen suit provisions
Modern statutes, especially environmental statutes, include citizen suit
provisions: private parties are authorized to bring suit against other private
parties and government officials for violating the statute and regulations
Can only be used when the agency has failed to fulfill a mandatory duty; the
citizen suit can be used to compel agency action (not a substitute for judicial
review)
Article III standing requirements must still be met
Associational standing
In what capacity is the organization suing?
Suing for harm to the organizations own interests?
o Regular standing test applies
Suing in a representative capacity? Hunt v. Washington State Apple Advertising
Commn (1977)
o (1) Members must otherwise have had standing to sue in their own right
o (2) The interests the organization seeks to protect must be germane to
the organization
o (3) Neither the claim asserted nor the relief request requires the
participation in the lawsuit of the individual members (i.e., the
organization is fully equipped to handle the lawsuit, all members share
the same claim, and all members would benefit equally from the relief)
Prudential standing doctrines
Third-party standing
Generalized grievances
This is a constitutional doctrine and cannot be overridden by Congress pursuant
to a citizen suit provision. Lujan v. Defenders of Wildlife (J. Scalia)
o But see FEC v. Akins (1998): court found that plaintiff had injury in fact
and that voters are in the zone of interests of election laws requiring
political committees to disclose information; suit also permitted under the
citizen suit provision
No taxpayer standing
No concerned citizen standing
Rationale
o Separation of powers: we dont want the courts to turn into a central
enforcement body hovering over the agencies
o Counter-argument: foreclosing judicial enforcement transfers power to the
executive at the expense of Congress (from which the agencies power
emanates); some hard would go without redress
o Massachusetts v. EPA: Court found state had standing to challenge the
EPAs failure to regulate CO2 emissions from domestic cars as a
contributing factor to global warming
Zone of interest
Is the plaintiff within the zone of interests protected by statute?
o This is a political, rather than legal, look at standing because it asks not
whether plaintiff has a legal right, but whether the plaintiffs interests were
considered by Congress of the regulatory body
Applies only in statutory cases
Context: plaintiffs actions were not directly controlled by the challenged
administrative action

14

Test: look to congressional intent

o Air Courier Conference of America v. American Postal Workers Union
(1991): postal workers were not within the zone of interests of the statute
because the statute reflected Congress sole concern with the public
interest in an efficient mail service
o But see National Credit Union of America v. First Natl Bank & Trust Co.
(1998): competing banks are within the zone of interests of the statute
regulating the scope of credit unions business
**Court lowered the standard of clear congressional intent to
arguably within the zone of interests
Mootness
Whether a case is stale or too ripe
Political question
Whether courts should refuse to adjudicate a dispute because the Constitution
commits its resolution to other branches of government that are better suited to
resolve it
Ripeness/Finality (both a prudential and timing consideration)
Definition: the dispute has become a concrete case or controversy that is ready for a
judicial determination
Test for ripeness (Hobsons Choice): Abbott Laboratories v. Gardner (1967)
(1) Fitness for judicial review
o Finality of decision (final order)
o Purely legal question (the more factual the questions, the less ripe)
(2) Hardship to party in delaying judicial review
o Plaintiff should show they will suffer harm by waiting longer for judicial
review
**Note: an agency decision may be final, but not yet ripe
Application of Abbott Labs test
Ohio Forestry Association, Inc. v. Sierra Club (1998): Sierra Clubs claim to preenforcement review of logging plan could benefit from further development
because a number of things would have to happen before it would be harmed
Due process

o
Timing
o Finality
Definition: agency has completed its decision and the decision has a direct and
immediate effect
APA 704: two kinds of agency actions subject to judicial review
(1) Agency actions made reviewable by statute
(2) Final agency action for which there is no other adequate remedy in court
When is an agency action final?
Franklin v. Massachusetts (1992):
o Whether the agency has completed its decision-making process
(definitive agency position)
o Whether the result of the process will have a direct legal effect on the
parties
Bennett v. Spear (1997): final action is that by which rights or
obligations have been determined, or from which legal
consequences will flow (is the rule legally binding on affected
parties?)
Even if an agency action is labeled as tentative or not binding, it will be
considered final and binding by looking at these factors (Appalachian Power Co.
v. EPA (2000)):
15

If the agency acts as if a document issues at headquarters is controlling

in the field
o If the agency treats the document in the same manner as it treats a
legislative rule
o If the agency bases enforcement actions on the policies or interpretations
formulated in the document
o If the agency leads private parties or state to believe that it will declare
conduct invalid unless they comply with the terms of the document
The questions of finality and whether a rule should have gone through notice and
comment are substantially similar, but finality is a jurisdictional question and therefore
should be addressed first. Taylor-Callahan-Coleman Counties District Adult Probation
Department v. Cole (1991)
Exhaustion of administrative remedies
Definition: plaintiff has pursued all available administrative remedies before coming into
court
Corollary: issue exhaustion
When is exhaustion required?
Under the APA, there is no general exhaustion requirement beyond 704s
finality requirement; if agency action is final within that section, judicial review is
timely
o Darby v. Cisneros (1993): APA requires statute or regulation to expressly
require exhaustion (and provide that the rule is meanwhile inoperative)
In non-APA cases, exhaustion is required unless
o (1) Exhaustion would cause undue prejudice to the protection of rights at
issue
o (2) The agency lacks power to grant effective relief
o (3) Exhaustion would be futile because the agency is biased
McCarthy v. Madigan (1992): balancing institutional interests in
exhaustion versus individual interests in prompt access to a
judicial forum
o

Fact
Substantial evidence

Law
De novo
Chevron

Mixed
Substantial evidence
Chevron
Combination

APA Judicial Review

o APA 706
Agency action must be in accordance of the law
Agency action must not be in excess of statutory authority
o POLICY: Chevron Review: does the statute permit the agencys policy choice?
Chevron, Inc. v. NRDC (1984): unless Congress has directly spoken on the precise
issue in question, courts should defer to agencies on pure questions of statutory
interpretation as long as the agency arrived at a reasonable or permissible construction
of the statute
Applies (1) during judicial review of informal rulemaking, formal rulemaking, nonlegislative rules, informal adjudication, and formal adjudication; (2) when the agency
whose interpretation is at issue is the agency responsible for administering the statute;
(3) even if the court interprets a statute first (agency not bound)
Does not apply to agencys interpretation of its own regulations; an agencys
interpretation of its own regulations is entitled to deference unless it is plainly
erroneous or inconsistent with the regulation. Bowles v. Seminole Rock & Sand
Co. (1945); Martin v. OSHRC (1991)
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Note: but the agency cannot simply restate the language of the statute
and then re-interpret that language to claim complete deference.
Gonzales v. Oregon
Does not apply if the agency interprets a statute for the first time in the course of
litigation to which it is a party
Step Zero: is there an explicit or implicit delegation of authority to interpret a statute from
Congress?
United States v. Mead Corp. (2001): Chevron deference will apply to an informal
agency determination if it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and the agency
interpretation claiming deference was promulgated in the exercise of that
authority (in that case, the letter rulings did not have the force of law, but there
was at least room to claim Skidmore Deference)
o Standard: Is there express intent to grant lawmaking authority, or is it
reasonable to infer from the statute the authority to act with the force of
law (i.e. how binding is the action)?
Usually straightforward inquiry if the agency went through the
notice and comment process
o If neither, go with Skidmore Deference
Key context is whether agencies get deference for informal adjudication and nonlegislative rulemaking
Barnhart v. Walton (2003): prior informality of the promulgation of agency
guidance later memorialized in a formal rule was irrelevant, but the following
factors (totality of the circumstances) were considered in whether to apply
Chevron Review:
o Interstitial nature of the legal question (narrow interval between other
things)
o Related expertise of the agency
o Importance of the question to the administration of the statute
o Complexity of the administration
o Careful consideration the agency has given the question over a long
period of time
Step One: has Congress spoken directly on the issue (i.e. is the statute clear)?
Factors
o Plain meaning
o Canons of construction
o Overall design of the statute
o Legislative purpose, intent, and/or history
o Textualism (the only meaningful legislative intent is reflected in the final
statutory text) versus Intentionalism (legislatures have coherent and
identifiable policy intentions)
If yes, the agencys interpretation is overruled in favor of congressional intent
If no, proceed to Step Two
Step Two: when there is implicit delegation of interpretive authority due to inadvertent
ambiguity in the statute, is the agencys interpretation permissible?
Factors
o Same factors as Step One
o Is agency interpretation supported by a reasonable explanation, and is it
logically coherent?
Rationale
o Agencies have special expertise
o Congress chose to delegate authority to the agency (prevailing view)
o Beware of different interpretations per court (Balkanization)
17
o

o Separation of Powers (courts should not be legislating)

The agency interpretation will be permissible if it is a sufficiently rational one to
preclude a court from substituting its judgment for that of the agency. Chemical
Manufacturers Association v. NRDC (1985)
Extremely deferential standard
POLICY: Skidmore Deference
Skidmore v. Swift & Co. (1944): in informal agency action or action where the agency did
not have the authority to act with the force of law, agency interpretations are entitled to
respect, but only to the extent that those interpretations have the power to persuade
Factors for the level of deference calculation (totality of the circumstances):
Thoroughness evidence in the agencys consideration
Validity of the agencys reasoning
Consistency with early and later pronouncements
All other factors giving the agency the power to persuade, if not control
See also Christensen v. Harris County (2000): Chevron deference did not apply to an
interpretation contained in an Opinion Letter that an agency wrote in response to a
letter from a regulated party regarding a particular course of conduct
Less deferential than Chevron Review (closer to arbitrary and capricious review)
Problem with a bright-line rule between Chevron and Skidmore is that Congress may
have authorized the agency to do more than just legislative rulemaking
POLICY: Arbitrary and Capricious standard: does the factual record permit the policy
choice?
APA 706(2)(A): the court shall hold unlawful agency actions that are arbitrary,
capricious, or reflect an abuse of discretion
Standard of review (Citizens to Preserve Overton Park v. Volpe (1971))
Agencies must make decisions:
o Based on a consideration of the relevant factors, including alternatives to
the agencys proposal suggested by the record
o Without a clear error of judgment
o Under the correct legal standard
Example of different interpretations of the standard
o High deference
The agency must provide an (1) explanation of the facts and
policies it relied on in its decision, (2) with some basis in the
record. Arkansas Power & Light Co. v. ICC (1984)
o Low deference
The agency must (1) provide a substantial inquiry into facts; (2)
show rational connection between facts and determination; and
(3) articulate a reason for decision. Northern Spotted Owl v. Hodel
(1988)
o Both construe arbitrary and capricious but dealt with different types of
records (the former being less fact-based than the latter)
Narrow standard
Court cannot substitute its judgment for that of the agency
Examine relevant data only
Articulate a satisfactory explanation: rational connection between the facts and
the choice made by the agency. Yepes-Prado v. INS (1993) (reasoned
explanation required when reviewing for abuse of discretion)
Precedent must be overruled or distinguished. Davila-Bardales v. INS (1994)
Examples of arbitrary and capricious: the agency
Relied on improper facts
Entirely ignored an important aspect
18

Provided an explanation counter to the evidence

Made an implausible determination
Applied to informal rulemaking [**but can apply to ANY agency action**]
Hard Look Review (for police determinations)
o Motor Vehicles Assn v. State Farm Mutual Ins. Co. (1983): an agency
must provide some degree of factual support for a rule (even though the
APA does not require that an agency provide factual support for a rule)
o Compare to Chevron Review Step Two: both inquiries address the
propriety of the agencys policy choices reflected in the final rule
Substantial Evidence Review is only applied to informal rulemaking when
specified by a particular regulatory statute
Applied to informal adjudication (aka informal agency action)
Citizens to Preserve Overton Park v. Volpe (1971)
FACTS AFTER AGENCY ADJUDICATION: Substantial Evidence standard
APA 706(2)(E): the court shall hold unlawful agency actions that are unsupported by
substantial evidence in a case subject to 556 and 557
Standard of review (Consolidated Edison Co. v. NLRB (1938))
The agency decision must be reasonable, (reasonable person standard) OR
The record must contain such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion
The court performing substantial evidence review must look at the whole record
Narrow standard
Court cannot substitute its judgment for that of the agency
Most deferential when agency is making policy choices within its expertise
Applied to formal rulemaking and adjudication
(1) Agency witness credibility determinations: entitled to great deference because
reviewing court only reviews the paper record and not demeanor; significant
amount of contrary evidence required
(2) Agency reversal of ALJ decisions (on appeal): court will review the initial ALJ
decision as part of the record, and therefore the reversal of the ALJ decision
weighs against the agencys decision in the courts determination of whether the
agency decision is supported by substantial evidence
o Universal Camera Corp. v. NLRB (1951): the reviewing court must take
the initial decision-makers opinion into account when deciding whether
the agencys conclusions are supported by substantial evidence
(indicating the importance of live credibility determinations)
o Penasquitos Village, Inc. v. NLRB (1977): when the agency reaches a
different conclusion from the ALJ on appeal, the reviewing court will defer
to the ALJs determinations of credibility (demeanor evidence), and will
defer to the agencys factual conclusions based on expertise (derivative
evidence)
o Jackson v. Veterans Administration (1985): when the agency rejects the
ALJs credibility determinations, the agency must articulate a sound
reason based on the record (substantial evidence) for its contrary
conclusion
Hybrid rulemaking may also specify a substantial evidence standard
FACTS: De Novo review of fact
APA 706(2)(F): the court shall hold unlawful agency actions unwarranted by the facts
to the extent that the facts are subject to trial de novo by the reviewing court
Standard: reviewing court considers the facts and reaches its own decision without
referring to the conclusions of the agency
Only applies in two rare circumstances (formal adjudication)
19

(1) Agency adjudicatory fact-finding procedures are inadequate

(2) New factual issues arise in an action to enforce non-adjudicatory agency
action
o LAW: Review of questions of law
The choice on the spectrum between agency deference and de novo review is
dependant on circumstance: more deference may be appropriate if the question is based
in fact or policy
De novo: it is the role of the judiciary to declare the law
Judges will apply de novo standard to pure questions of law
De novo review is usually preferable also if the legal question controls, or if a
generalized perspective is necessary to cut against agency focus
Deferential: courts defer to reasonable agency interpretations of law because agency
expertise assists in understanding Congresss statutory commands and other legal
issues within the agencys jurisdiction
Judges will defer to the agency on the application of the law to facts
NLRB v. Hearst Publications, Inc. (1944): the definition and interpretation of
statutory terms is for the court and the application to particular facts is for the
agency; agency decisions involving the application of law to facts will be affirmed
if they are supported by the record and find a reasonable basis in law
o Parallel framework to Chevron:
Chevron (rulemaking): (1) Has Congress unambiguously indicated
its intent? (2) If not, is the agencys construction permissible?
Hearst (adjudication): (1) Did Congress define the term? (2) If not,
does the agencys interpretation have warrant in the record and a
reasonable basis in the law?
o FACTS AND LAW: Review of mixed questions of law and fact
Substantial evidence or Chevron or a combination
Some courts have seen substantial evidence standard as a subset of Chevron:
when applying its interpretation, the agency must support its decision with
substantial evidence in the record
Common law
o Challenging non-legislative rulemaking
An agency cannot use less formal procedures to change a binding policy (e.g. a
legislative rule cannot be repealed by adjudication or by a non-legislative rule)
An agency can change a policy using the same procedures it used to adopt it (e.g. a
legislative rule can change a legislative rule)
Non-legislative rules become binding once embodied in notice and comment rulemaking
APA does not address changing policy statements at all
o Reliance: changing a non-legislative rule
What happens when a regulated entity relies on a non-legislative rule, and then the
agency refuses to follow it?
Alaska Profession Hunters Assn v. FAA (1999): notice and comment required if
regulated entities relied on the agencys (or field offices) interpretation and they
would have taken advantage of the comment period during 553 rulemaking
o This holding essentially creates a requirement to change non-legislative
interpretive rules by means of notice and comment, which may be at odds
with Vermont Yankee
Assn of American Railroads v. Department of Transportation (1999): notice and
comment required only if prior non-legislative agency action was a definitive
understanding of the rule at issue; does the agency action constitute an abrupt
departure from prior interpretation? (no creation of administrative common law)
o Estoppel
Elements of common law estoppel:
20

(1) Reasonable reliance

(2) Detrimental change
Agency action created detrimental reliance
Difficult to prevail
Agencies are not normally estopped by the conduct or statements of agency
officials
Common law theory is that the government should not be bound by the
misleading statements of lower level employees
Principles of estoppel cannot override the limitations placed by Congress on the
expenditure of government funds. Office of Personnel Management v. Richmond (1990)
When the public has ample notice of regulatory requirements, reliance on oral advice
from an agency employee to the contrary may not be reasonable reliance (and, in this
case, the detriment was not sufficient to justify estopping the government). Heckler v.
Community Health Services (1984).
But see Appeal of Eno (1985): when the plaintiffs claim is for a statutory entitlement,
and the interaction with the agency employee demonstrates a pattern of approval, the
government may be estopped from denying due process
Non-delegation doctrine
o Non-delegation doctrine prohibits excessive delegation of discretionary powers by Congress
to federal agencies
Stems from separation of powers
Art. I, 1: All legislative powers shall be vested in a Congress of the United
States.
How do agencies fit within the separation of powers?
o Adopt regulations with the force of law
o Enforce those regulations
o Apply those regulations in individual cases and adjudicate them
Core delegation issues
(1) Delegation of legislative authority to agencies
(2) Delegation of judicial authority to agencies
(3) Lack of executive control over certain agencies
o Test for no violation of the non-delegation doctrine (presumption of permissible delegation)
Intelligible Principle Test
J.W. Hampton, Jr. & Co. v. United States (1928): a delegation is permissible
when Congress lays down by legislative act an intelligible principle to which the
agency or other entity is directed to conform
Court has rarely struck down congressional statutes for a violation of the non-delegation
doctrine
Panama Refining Co. v. Ryan (1935): statutory provision declared
unconstitutional because it contained no standards guiding the Presidents
decision of whether to invoke his powers in a particular case
Schechter Poultry Corp. v. United States (1935): statutory provision declared
unconstitutional because it contained insufficient standards guiding the
Presidents discretion over whether to approve a particular code of fair
competition
o When a statute might otherwise violate the non-delegation doctrine, the court will narrowly
construe the legislation in a way that articulates a sufficiently intelligible principle (saving the
statute). Industrial Union Dept, AFL-CIO v. American Petroleum Institute (Benzene Cases)
(1980)
Whitman v. American Trucking Associations, Inc. (2001): Court rejected DC Circuits
lower holding that an agency could cure a violation of the non-delegation doctrine by
21

adopting a construction of the statute that limits its own discretion; instead, the Court
reaffirmed the traditional intelligible principle test
J. Stevens concurrence: there is no strict compliance with the Constitution here;
there is no reason to pretend this agency action is not legislative. However, we
should just admit that well accept this legislative action within the executive
branch so long as the statute sufficiently limits that action.
Quasi-judicial activities
o Agencies and courts: Article III
Art. III, 1: The judicial power of the United States shall be vested in one Supreme
Court and such inferior courts as the Congress may from time to time ordain and
establish.
Problem with agency adjudication: federal judges are immune from political
influence
Agency adjudication is permissible so long as it does not threaten the policies and
values underlying Art. IIIs assignment of the judicial power to the federal courts
Murrays Lessee v. Hoboken Land and Improvement Co. (1855): when the
dispute concerns public rights and the government waives sovereign immunity, it
may dictate the terms of adjudication (justification for specialized courts)
o Private rights: disputes between individuals
o Public rights: disputes between a person and the government
Crowell v. Bensen (1932): Congress may create tribunals to adjudicate private
rights as well, so long as Article III courts retain sufficient authority to make the
final decision
Core Functions test: Commodity Future Trading Commn v. Schor (1986): Court
rejected the public/private rights distinction; an agency tribunal is not
unconstitutional as long as the core function of the Art. III court is no
compromised
o Factors
Jurisdiction is particularized
There is reviewability in Art. III court
Litigants can still choose between the tribunal and an Art. III court
o Agencies and courts: 7th Amendment
7th Amendment: In suits at common law, where the value in controversy shall exceed
$20, the right to trial by jury shall be preserved.
When Congress creates a statutory cause of action, the statute may be challenged if
Congress explicitly denies a jury trial
Test for 7th Amendment right to jury trial (Granfinanceria v. Nordberg (1989))
(1) Was the claim heard in a court of equity or law at common law?
(2) What kind of relief is being sought?
(3) Is the right at issue a private right so closely integrated into a public regulatory
scheme that it is a matter more appropriate for agency resolution (and no jury
trial)?
Quasi-legislative activities
o Legislative veto
Definition: Congress reserved the power to reject agency action (usually regulations)
with a vote by both houses of Congress, by one house of Congress, or even by a single
congressional committee
The legislative veto is unconstitutional
INS v. Chadha (1983): Congress may only nullify agency action through the
constitutional legislative process (bicameralism and presentment)
How else does Congress control agency action?
Corrections Day
Congressional Review Act
22

Hearing and subpoena powers

Budget
Day-to-day oversight
Legislation
Appointment: can Congress transfer executive power to itself?
Art. II, 2, cl. 2: President shall nominate and appoint with advice and consent of
Senate; but Congress may vest the appointment of inferior officers in the president,
courts, or heads of departments.
This says nothing about scope of presidential appointments or removal
Officers
o Principal
o Inferior
o Mere employees
Exclusivity of Art. II appointment power
Buckley v. Valeo (1976): Congress may not rely on necessary and proper to
make appointments; appointments may only be made pursuant to Art. II
o Executive officer defined: whether officer exercises significant authority
under the law of the United States
Principal versus inferior officers
Morrison v. Olson (1988): independent counsel is an inferior office and can be
removed by Attorney General for cause
o No independent counsel statute anymore so why does this matter?
o Three kinds of agencies
Departments (cabinet-level) (principal officers)
Executive agencies outside Departments (principal officers)
Independent agencies (Court has never said these are
constitutional)
Insulated from executive influence
Headed by bi-partisan commissions
Executive officers: President has to appoint (Buckley)
The distinction is in removal power
Removal
Bowsher v. Synar (1986): if Congress wants to remove, it must be through impeachment
Can Congress statutorily hamper the Presidents power to remove?
Myers v. United States (1926): President has complete removal power that
cannot be limited by Congress (~appointment power)
Humphreys Executor v. United States (1935): FTC Commissioners are not
purely executive; they also have quasi-legislative and quasi-judicial power, so
presidential power to remove can be limited
Morrison v. Olson (1988): can independent counsel removal be limited to being
fired for cause?
o Court looked to whether the essential functions of the executive are
preserved: is the president still able, through limited removal power, to
ensure that appointees are faithfully executing the laws?
o The Court holds yes here (AG must still make cause determination)

23