Class 3: Types of agency action & intro. to APA
Updated: Sep 1, 2019
Read before Tuesday, September 3
Supplemental Readings for Class 3:
LULAC v. Wheeler, 899 F.3d 814 (Aug. 9, 2018) [THIS is the key thing to read here - it's the court decision about how the EPA responded, or failed to respond, to the 2007 petition)
Here is the Get To Know An Agency worksheet. It is due Thursday, September 12. You can download it and answer the questions in the document as you visit the webpage of one of the agencies on the back of the worksheet (p. 2). The Assignment Dropbox is here. If you have any trouble submitting the assignment, let me know. (Also try using a non-Safari web browser like Google Chrome or Firefox, etc.)
A deeper dive into regulatory policy
Debates about what to regulate and how much to regulate have always been central to political theory and philosophy. Some believe that regulation is critical to a successful, equitable society. Conversely, some believe that regulation is unnecessary government intervention in our lives and markets. You'll notice, in our semester together, that administrative decisions often vary depending on where government leaders rest on the spectrum of beliefs about the proper place and role of regulation.
The Trump Administration believes in less regulation:
Ordering agencies to repeal at least two existing regulations for each new regulation issues (Executive Order 13771)
Leaving a large number of federal agency leadership positions vacant
The desire to limit regulatory power and processes is not a new feature of U.S. politics. Judge Richard Posner wrote about the back and forth push of regulatory policy in The Rise and Fall of Administrative Law in 1996. He offers a different perspective than the ones you may receive in class, and his overview of how courts review agency decisions offers a sneak peek into much of the major case law we're going to cover in class. If you check back here at the end of the semester, I bet excerpts from Posner's piece will be even more meaningful:
Posner's take on major PI cases (in which courts review agency decisions): "The most important administrative law decisions of the Supreme Court in this period of growing sophistication of academic thinking about administrative law include decisions authorizing pre-enforcement review of administrative rules (Abbott Laboratories), ... invalidating the one-house veto of regulatory action (Chadha), insisting that agencies justify their about-faces (Motor Vehicle Manufacturers' Association), squashing intrusive judicial review of agencies' procedures (Vermont Yankee), allowing federal criminal sentencing policies to be consigned to an administrative agency (Mistretta), and curtailing judicial review of agencies' interpretations of their statutes (Chevron)...
The law that best describes the results in the Supreme Court's administrative law jurisprudence of recent decades is the law of unintended consequences. I am sure that the Court did not realize when it authorized pre-enforcement judicial review of administrative rules in the Abbott Laboratories case that this would curtail the use of notice and comment rulemaking because it would require the agency to create a highly elaborate record in order to withstand that review, whereas if review were postponed to an enforcement proceeding a record narrowly tailored to the issue in that proceeding could be developed on the spot as it were, rather than in advance. Or that the Court's endorsement of the “hard look” doctrine in Vermont Yankee would simply slow down the administrative process with no offsetting gains in greater accuracy. One wonders whether the Court has any clue as to the consequences of its administrative law decisions for society. Maybe it doesn't think that that is any of its business."
Debates over proper the place and scope of regulatory power and authority will run through our course discussion from the things we read in our casebook to discussions we have in class. Peoples' opinions vary widely on this always "hot topic" of law and policy.