Bottom Line: Congress can shift any power anywhere, as long as it doesn’t shift it to itself




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Admin Law Outline:

  1. Separation of powers




    1. Bottom Line: Congress can shift any power anywhere, as long as it doesn’t shift it to itself

      1. History:

        1. “separation of powers” is a fallacy:

          1. most “legislation” comes out of the administrative agencies

          2. most “adjudication” takes place in the administrative agencies

          3.  so legislation, adjudication, and enforcement are all concentrated in one agency

        2. New Deal: the “switch-in time” paved the way for the administrative state (except for the ICC and FTC, which were early exceptions)

        3. Reagan Administration Justice Department and Deregulation

          1. 1st post New Deal challenge to the administrative state

          2. concerned w/ barriers placed between the president and the administrative agencies

          3. also concerned w/ excessive delegation

          4.  lost: administrative state survived, but became much more vulnerable

      2. Delegation:

        1. Congress Agency (“intelligible principles,” Mistretta v. US)

        2. Courts Agency (Article III review: CFTC v. Schor)

        3. President Congress (Not OK: Buckley v. Valeo, Bowsher v. Synar, Myers v. US, INS v. Chadha)

        4. President Agency (doesn’t impede on the president’s ability to perform his constitutional duty: Humphrey’s Executor, Morrison v. Olson)

      3. Other Separation of Powers Considerations

        1. “unitary executive”

        2. APA requirements of separation at ALJ level

        3. APA does not require separation at the agency head level

        4. some control over agencies by executive branch

          1. OMB/OIRA

          2. appointment

          3. removal

          4. ex parte contacts in rulemaking

          5. Chevron support for politics

        5. some control over agencies by Congress

          1. purse strings

          2. ex parte contacts, including hearings, etc.

          3. legislation and amendments




    1. Congress Agency: Delegation of Legislative Authority

      1. Why delegate?

        1. Dalton v. Specter (1994, p. 1)—Defense Base Closure and Realignment Commission

          1. expertise

          2. representation of broader interests

          3. legitimization of the process

          4. compromise to protect Congressional interests

            1. Congress lacks the political will to make the decisions

            2. but having representatives on the commissions gets their interests in

            3. since president’s can’t cherry-pick, the process preserves the compromise, and also shields the president’s unpopular decisions

        2. Mistretta v. United States (1989, p. 52)—Sentencing Commission (independent agency w/in judicial branch)

          1. credit-claiming/ blame-shifting

          2. expertise (why more so than Congress?)

            1. ongoing review (which Congress can’t do) develops expertise

            2. on scientific/technical questions, the expertise argument is stronger

          3. efficiency

            1. time constraint to do highly detailed work

            2. flexibility over time (rather than amending legislation)

        3. example: price controls on common carriers

          1. legislative power delegated from Courts to Administrative agency,

          2. under common law, “reasonableness” was a judicial determination

          3. why delegate?

            1. consistency

            2. certainty

            3. enforcement (avoid collective action problems)




      1. Is there a constitutional limitation on delegation of legislative powers to administrative agencies?

        1. bottom line:

          1. “intelligible principle”

          2. almost no limit in practice

            1. the vague “intelligible principle” doctrine leaves minimal role for courts to review

            2. but the doctrine is still considered justiciable

          3. possible limitations

            1. delegation to an agency with no specific purpose

            2. delegation with no attempt to provide guidance

              1. but note: “in the public interest” and “according to statute” were considered OK

              2. note: also OK if agency limits its own discretion by promulgating regulations, because then the court can judge

                1. this makes no sense given the separation of powers concern, but it’s true

                2. if the agency didn’t limit its own discretion could cause possible problem

          4. explanation of cases finding the delegation unconstitutional:

            1. the unofficial amendment of the Constitution that occurred w/ the New Deal

            2. Panama: NIRA’s excessive power to control the economy

            3. Schecter: delegation to private parties

        2. cases

          1. Mistretta v. United States (1989, p. 52)

            1. Page 54: “So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform . . .”

            2. intelligible principle: goals, purpose, factors to consider




          1. South Dakota v. United States Department of Interior (1995; in 1996, SC vacated opinion without granting cert., handout)

            1. SC vacates 8th Circuit decision that the delegation was unconstitutional because of a lack of an intelligible principle

            2. statute: “The Secretary of the Interior is hereby authorized, in his discretion, to acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians.”

            3. leaves the open question of how much guidance is required?

          2. FCC case (1944): “in the public interest” was upheld by the Supreme Court

          3. note: in Chevron (1984, p. 91), the fact that the statutory ambiguity might have been a result of Congress being unable to decide an issue was not considered fatal to the delegation suggests that not even an intelligible principle is required




      1. Should Courts have a role in reviewing delegation?

        1. Constitutional text inconclusive:

          1. Necessary and Proper

            1. pro-delegation: Congress can do what it needs to

            2. con-delegation: Congress can do what it needs to

          2. Art. I, Sec. I

            1. con-delegation: the legislative power is vested in Congress

            2.  depends on how you define legislation

              1. agencies aren’t legislating

              2. but (i.) turns the definition of “legislation” into a tautology (“whatever Congress does . . .”)

        2. checks and balances:

          1. con-delegation: not OK for Congress to give legislative power over to executive branch

          2. pro-delegation: but Congress has control over the agencies because it can amend, oversee, etc.

        3. “Rule of Law”

          1. necessity of firm legal structure because there is no democratic control

          2. judges are theoretically still involved; delegation principle just changes the question.

          3. but it is hard for courts to actually decide whether delegation is OK danger of courts inserting themselves into the legal process

          4. Rule of Law can nevertheless be ensured through regulation of the administrative agencies

        4. assessment of vast delegation

          1. con:

            1. important policy trade-offs can’t be made within single administrative agencies

            2. delegation lets Congress off the hook: take credit without the blame

          2. pro:

            1. complexity of programs demand the expertise and institutional structure of agencies

            2. agencies remain under presidential and congressional control




    1. Courts Agency: Delegation of Judicial Powers

      1. bottom line:

        1. “traditional agency model of adjudication”

          1. Congress may delegate adjudication to non-Article III courts

          2. so long as there is some review in the Art. III courts

          3. under the standards of:

            1. Chevron deference on questions of law

            2. substantial evidence on questions of fact

        2. Crowell v. Benson CFTC v. Schor

          1. model started with Crowell v. Benson

            1. Northern Pipeline suggested that Crowell v. Benson was too deferential

            2. Thomas v. Union Carbide created confusion by suggesting that Crowell v. Benson was not deferential enough

            3. and finally the court seems to return full circle in CFTC v. Schor

          2. remaining confusion

            1. is consent an issue? O’Connor’s opinion in CFTC did suggest that there might otherwise be a problem with insufficient Art. III control what does this mean?

            2. what about common law claims that are not tied to non-common law claims?

            3. what about self-enforcing judgments?

            4. unfortunately, the inconsistent analysis on public v. private could pose problems for non-traditional agency models

      2. cases

        1. Crowell v. Benson (1932, p. 117)—establishes framework

          1. workers’ compensation adjudication scheme upheld

          2. how is an agency different from a court?

            1. usually agencies can bring charges themselves (BUT not in this case)

            2. no Art. III protections guaranteeing the independence of the judiciary (is this simply a non-Art. III court?)

            3. specialized jurisdiction (BUT there are specialized courts)

            4. usually agencies have other functions as well, while courts perform exclusively judicial functions

            5.  bottom line: the agency in this case looks like a court

          3. private rights vs. public rights

            1. general questions

              1. can Congress delegate adjudicatory functions?

              2. if so, must there be Art. 3 review?

              3. if so, under what standard?

            2. private rights

              1. definition: disputes between citizen and citizen (i.e., this case, because the real parties in interest are employer and employee)

              2. Congress can delegate adjudication to agency, but they must provide for Art. III review

              3. standards

                1. de novo review of the question of law now, given Chevron’s enormous deference to agency interpretation, there is no longer full de novo review of questions of law

                2. substantial evidence review of ordinary facts still exists

                3. in this case: de novo review of “jurisdictional facts” (did injury take place on navigable waters? Master/servant relationship?) now: jurisdictional fact doctrine limited to these circumstances

            3. public rights

              1. definition: disputes between citizen and government (i.e., tax, social security, licensing)

              2. needn’t be adjudicated in court Congress could make the whole decision, or delegate it, w/ or w/o Art. III review, b/c “greater (sometimes) includes the lesser”

            4. problems with this distinction

              1. tautology? Defined by Congress’s right to make decision by itself

              2. private rights cases can be recharacterized as 2 public rights cases

            5. note: Congress has never taken constitutional (civil rights, criminal, etc.) issues out of the Art. III courts, so it is unclear as to whether they could

          4. Court upholds the scheme (which adjudicates private rights) because they interpret the agency as if it were an adjunct to the court (i.e. special master)




        1. Northern Pipeline Construction v. Marathon Pipeline Co. (1982, p. 130)—common law private rights must be adjudicated (or at least reviewed) in Art. III courts

          1. court strikes the delegation to bankruptcy courts of Art. III powers, subject to a “clearly erroneous” standard of review in Art. III court

          2. Brennan (plurality): private rights cannot be adjudicated in non-Art. III courts

            1. he is deciding the case with regard to all claims brought in bankruptcy court

            2. terrible opinion, because it contradicts everything that had been happening

          3. Rehnquist (concurrence: narrowest, thus governing, holding):

            1. decides only about the state court claims: only common law private rights claims can not be adjudicated in non-Art III courts

            2. clearly erroneous review is too deferential (Rehnquist seems to think that clearly erroneous is a more deferential review than substantial evidence review wrong)

            3. possible federalism argument: if the federal court is going to usurp state claims, it has to give them 1st class treatment

          4. How to reconcile with Crowell v. Benson?

            1. different standards of review involved

            2. self-enforcing judgment (?)

            3. further bifurcates “private rights”

              1. Public Rights—no Art. III review required

              2. Congressionally created private rights—agency OK, so long as there is Art. III review (Crowell v. Benson)

              3. Private Rights available at common law—strictest Art. III requirement (this case)




        1. Thomas v. Union Carbide Agricultural Products (1985, p. 132)—private rights bound up in regulatory scheme can be adjudicated by agency

          1. court upholds the delegation to an arbitrator of the final decision between two private litigants on the value of data provided from one to the other, subject to review in Art. III courts, only for fraud, etc.

          2. should logically be viewed as a private rights case

            1. under Crowell v. Bensonstrike it

            2. under Northern Pipeline

              1. Brennan rationale strike it

              2. Rehnquist rationale strike it, because the standard is even more deferential

          3. but court upholds, because the private rights are so bound up with the public regulatory scheme that the court basically treats it as a public right

            1. Q: does this completely destroy the public / private distinction?

              1. not completely: the right in Crowell is still private because it stems from relationship that pre-existed the regulatory scheme

              2. but: workers’ compensation scheme could be reinterpreted as bound up with a regulatory scheme designed to serve the public purpose of a safer workplace

            2. another possible distinction: private right is bootstrapped to the public right and is dealt with under the agency for efficiency reasons this case doesn’t “over-rule” Northern Pipeline, because it is sui generis




        1. CFTC v. Schor (1986, p. 120)—possible return to Crowell v. Benson

          1. court upholds the jurisdiction of agency (in addition to that of Art. III court) over common law counterclaims to claims brought before the agency, subject to review in Art. III court

          2. return to Crowell v. Benson? (common law private right adjudicated in agency with review in Art. III courts)

          3. BUT: the issue of consent differentiates this case from other cases

            1. does this case just stand for the proposition that after consenting to have your case heard here, you can’t contest it (no two bites at the apple)

            2. how important is consent to the outcome of the case? (O’Connor dwells on it in the Court’s opinion, even though under Crowell, the jurisdiction might be OK)

          4. bottom line:

            1. this case probably overrules Northern Pipeline, which was a bad case

            2. but issues still remain

              1. consent

              2. purely common law claims

              3. self-enforcing judgments




    1. President Congress vs. President Agency: Congressional Self-Aggrandizement vs. Encroachment

      1. bottom line: Congressional self-dealing is not OK

        1. Congressional tinkering is usually OK

          1. balancing test: Does the statute at issue prevent the President from accomplishing his constitutionally assigned functions? Is the extent of the intrusion justified by an overriding need to promote objectives within the constitutional authority of Congress?

            1. note: where the Constitution by specific text commits the power at issue to the exclusive control of the President, no intrusion is allowed by Congress (Public Citizen v. US Department of Justice)

              1. Secretary of State

              2. Secretary of the Treasury

            2. note also: the President must have some removal role for anyone who does anything with legal significance (“policy that binds the nation”)

            3. BUT note: the discussion of functions is usually confusing and irrelevant

              1. Myers started the discussion, but in Morrison v. Olson it didn’t matter

              2. doesn’t make sense because Congress could always get around it by adding legislative/judicial functions to position

        2. Congressional self-dealing is not OK

          1. Congressional consent to removal

          2. Congressional appointment to agency

          3. legislative veto

      2. executive power:

        1. “unitary executive?”: administrative law creates some strictures on how executive power is carried out in the executive branch

        2. general rules:

          1. removal

            1. unitary head agencies: heads “serve at the pleasure” of the president (removable by president at will)

            2. multimember/commissions: removable by president for cause

              1. president must have a reason to removeremoval is challengeable

              2. commission members serve fixed, usually staggered, terms change of administration does not immediately change composition of commission lag in policy changes

              3. often must be bi-partisan

              4. BUT president appoints the chair

          2. appointment

            1. superior officers: presidential appointment with advice and consent of Senate

            2. inferior officers: may be vested by Congress in other constitutionally acceptable bodies

            3. employees: hired by agency

            4. note: Congress has leeway in defining inferior offices and where appointment power vests

          3. power to dictate policy

            1. no role in formal adjudication

            2. some role in informal rule-making

            3. power over appointment and removal lends power to dictate policy

            4. note: ever since Nixon/Ford, presidents have wanted more control over agency rule-making

              1. Reagan’s executive order 12292 Clinton’s executive order 12866

                1. any regulation with substantial impact on the economy had to be reviewed by OMB’s Office of Information and Regulatory Affairs (OIRA) (applies only to executive agencies, not independent agencies)

                2. got caught up in the process of cost/benefit analysis so some statutes prohibit cost/benefit analysis

                3. conflict between executive agencies and OIRA

                  1. Every president since Reagan has established a dispute mechanism within the executive branch

                  2. Bush establishes an appeal body: “Council on Competitiveness” (headed by Quayle)

                4. Costly to the president to make threats

              2. Pro central control

                1. prevent different agencies working at cross-purposes

                2. other actors might be more efficient: no incentive for agencies to defer to one another

              3. Con central control

                1. counterproductive transfer of authority

                2. privileges cost/benefit analysis

                3. procedural concerns: no records of interest groups meetings with OMB, unlike the APA

                4. massive delay

      3. Removal:

        1. definitions

          1. Independent Agency head can be removable only for cause

          2. Executive Agency head is removable at will

        2. Myers v. United States (1926, p. 141)—aggrandizement

          1. Congressional attempt to condition postmaster’s removal on Senate consent not OK

          2. presidential authority to remove the postmaster (purely executive functions) implicit in executive power

        3. Humphrey’s Executor (1935, p. 141)—encroachment

          1. Congressional limitation on President’s removal power over FTC commissioners to “for cause” removal OK

          2. vis a vis Myers

            1. Myers involved aggrandizement, whereas Humphrey’s Executor only involved encroachment BUT both acts entailed a shift of power away from the president (and to Congress, de facto)

            2. Myers involved an office performing purely executive functions, whereas the FTC performs executive, legislative, and judicial functions BUT if the fact that Myers involved a purely executive role led to the conclusion that the president’s powers should be unlimited, why shouldn’t his power be equally unlimited over agencies that exercised executive + functions?

          3. note: there is no caselaw as to what “for cause” means

            1. it probably doesn’t include policy disagreement, because to interpret it otherwise conflicts with Congressional intent:

            2. “for cause” was meant to give more protection than “at will”

            3. fixed, staggered terms span more than one administration

        4. Bowsher v. Synar (1986, p. 146)—aggrandizement

          1. Congressional delegation of executive powers to an officer removable by Congress violates separation of powers, because Congress can’t reserve a role for itself

          2. Comptroller General removable

            1. by a joint resolution (2 houses + presentment)

            2. for cause

            3.  almost impossible (and Congress has never tried to do it), but seen to be more possible than impeachment (which is Congress’s only permissible role)

              1. Art II, § 4: impeachment by House, conviction for treason, bribery, high crimes and misdemeanors

              2. impeachment requires 2/3; for cause only requires 2/3 if president vetoes

              3. impeachment is time-consuming and dramatic

          3. Reagan administration

            1. argument: president needs to have at-will removal power over those exercising executive functions to create a unitary executive

            2. but the decision was made on the rationale that Congress can’t reserve a role for itself

        5. Morrison v. Olson (1988, p. 171)—encroachment

          1. independent counsel removable for cause by attorney general OK

          2. broad reading: Congress can put obstacles on presidential removal of officers with purely executive functions over-rules Myers v. US

          3. narrow/pragmatic reading: separation of powers problem either way

            1. if presidential removal at will, then no one can investigate the president BUT there is still impeachment of independent counsel, or president

            2. if “for cause” removal, then Myers v. US problem




      1. appointment:

        1. Constitution

          1. president nomination + advice/consent of Senate:

            1. ambassadors, public ministers, consuls, Supreme Court judges

            2. all other (superior) officers

          2. Congress can vest to President alone, in the Courts of Law, or in the Heads of Departments: inferior officers

          3. note: government employees who do not constitute officers are hired by the officers

        2. Interpretation

          1. Who is a superior officer, and what power does Congress have to redefine a superior officer as an inferior officer?

          2. To what extent can there be cross-branch appointments (i.e., can the attorney general be appointed by the Supreme Court)?

          3. What limits are there on what counts as a Head of Department, for the purposes of appointing inferior officers?

          4. What limits are there on the appointment of “employees”?

        3. Morrison v. Olson (1988 p. 171)—encroachment

          1. independent counsel defined as an inferior officer to be appointed by a special division of the DC Circuit (and removal for cause by the Attorney Genera;)  OK

          2. Rehnquist’s definition of inferior officers:

            1. subject to removal by a higher executive branch official

            2. perform limited duties

            3. limited in jurisdiction

            4. limited in tenure

            5.  weird, because these characteristics cover everyone

          3. impact of holding

            1. the definition of inferior officers

            2. allows a division of DC Circuit (as a court of law) to appoint

            3. apparent incongruity of allowing cross-branch appointment approved

        4. Freytag v. Commission of Internal Revenue (1991, p. 185)—encroachment

          1. the chief judge of the tax court appoints special trial judges OK

          2. what is the Tax Court?

            1. not a “department” that would trivialize the important constitutional assurance of political responsibility for executive appointments

              1. very unclear what a department is

              2. deals with Congress’s power to redefine agencies as departments and to vest appointment power there

            2. but as a “court of law” it’s OK

        5. Buckley v. Valeo (1976, p. 157)—aggrandizement

          1. direct legislative appointment of most of the members of the Federal Election Commission not OK because Art. II violation

          2. court found FEC “not legislative” so Congress can’t appoint the members




      1. one more form of Congressional self-aggrandizement: legislative veto

        1. INS v. Chadha (1983, p. 160)

          1. one-house legislative veto not OK because violated bicameralism and presentment requirements

          2. distinguishing facts of this case?

            1. the veto has individual, rather than regulatory, impact

            2. single house veto  BUT since the concern of the majority was that legislation requires bicameralism/presentment, the result would probably be the same regardless

          3. policy

            1. Congress delegated the power in the first place, so why can’t they exercise targeted veto?

            2. Congressional response to end of the legislative veto

              1. technical: more narrow delegations

              2. reality: committees informally affect regulations isn’t this worse?

              3. nothing: Congress continues to use the veto in cases where no one would have standing to challenge it (funding cases)

                1. even though it’s unconstitutional, the legislative veto is a convenient political tool for everyone

                2. the administrative agencies don’t challenge it, because they could be dismantled

          4. After Chadha, what would happen if a statute with a legislative veto is challenged:

            1. severable

              1. assumes Congress would have passed the law even without the legislative veto

              2. RR: that’s implausible, but that’s what the Court did in Chadha

            2. entire statute is invalid because the legislative veto is so intertwined




        1. 1996 statute: any regulations that affect the economy do not take affect for 60 days, to allow Congress the opportunity to pass a joint resolution of disapproval, and to vote the regulation down

          1. the 60-day waiting period is probably constitutional

          2. potential Chadha problem: if one house passes a resolution to extend the period before regulations takes effect, then a one-house resolution has a legal effect possibly unconstitutional




  1. The Constitutional Right to a Hearing




    1. Adjudication versus Rule-making: substantive differences

      1. adjudicative facts: pertain to individual circumstances

      2. legislative facts: pertain to broad principles or policies

      3. cases:

        1. Londoner v. Denver (1908, p. 226)—adjudication

          1. the special tax assessment is invalid unless the property owners it affects have the opportunity to offer arguments and proof in opposition to passage

          2. the tax affected a small number of people

          3. individual facts important

          4. note: no matter how individualized a tax is, there is no due process problem if the tax is imposed by a true legislature the issue arises after the legislature delegates the authority

          5. moral: when agency exercises adjudicative function, some procedural protections are required

            1. notice and written submissions not enough

            2. in this case, a hearing was required at the agency level: “right to support his allegations by argument, however brief, and if need be, by proof, however informal”

        2. BiMetallic Investment Co v. State Board of Equalization, Colorado (1915, p. 230)—rulemaking

          1. if an agency rule will apply to a lot of people, the Constitution does not require that each be given the opportunity to be heard directly  leave it to the political process

            1. tax on entire city

            2. formula involved

        3. These cases are of historical significance after the APA there has not yet been a case where the APA did not meet the requirements of due process




    1. Hearing means some combination of the following:

      1. impartial arbiter/decision maker or jury

      2. notice

        1. charges

        2. evidence

      3. opportunity to be heard

        1. witnesses

          1. right to present

          2. right to subpoena

          3. under oath

        2. cross-examination

        3. discovery

      4. counsel

        1. right to have counsel present

        2. right to counsel at government’s expense

      5. closed record only look at evidence on the record to make decision

      6. reasoned decision explaining basis for decision

      7. appellate review

      8. public proceeding

      9. rules of evidence

      10. rule of procedure




    1. Old Cases:

      1. North American Cold Storage v. Chicago (1908, p. 705)—public safety

        1. rotten poultry seizure with only post-deprivation hearing and remedysatisfies DP

        2. what more would a pre-deprivation hearing provide?

          1. prevent irreparable loss reputation, loss of entire business

          2. deterrence of government action (chilling effect on government seizure) not necessarily good (too much process?)

          3. a real chance

            1. it’s easier to persuade an agency before its acted than afterwards

            2. deference will attach to the agency decision in court

        3. continuing effect of holding: in the face of emergency affecting public health/welfare, pre-deprivation hearing not required by due process clause

      2. Bailey v. Richardson (1951, p. 711)—dead case

        1. job loss after hearing (disloyal), at which she was not informed of the charges against her, or who informed on herOK, because no due process required

        2. government job is a privilege, not a right no due process required, because no property(, life or liberty) interest

      3. Joint Anti-Fascist Refugee Committee v. McGrath (1951, p. 715)—Frankfurter’s concurrence

        1. due process attaches to black-listing of organizations as “communist”

        2. Frankfurter’s concurrence:

          1. due process is dynamic

          2. due process encompasses the “right to be heard before being condemned to suffer grievous loss of any kind”

      4. Cafeteria and Restaurant Workers Union v. McElroy (1961, p. 718)—balancing

        1. non-government worker loses access to government site as a security risk, without a hearing. OK, because on balance a hearing was not required

        2. balance:

          1. precise nature of the government function involved

          2. private interest that has been affected by governmental action

        3. “one may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law”

          1. the fact that the job is a privilege, rather than a right is not dispositive

          2. BUT then why does the court feel compelled to explain that she can get a job someplace else?

      5. Significant moves away from Bailey v. Richardson:

        1. the inquiry is bifurcated

          1. the lack of a “constitutional interest”— life, liberty, prop—is not dispositive

          2. balancing: weighing of government interest (high in the case of national security) against private interest (a job at this site)

        2. rights/privileges distinction not dispositive




    1. The Explosion: Goldberg v. Kelly (1970, p. 722)

      1. holding: evidentiary hearing required before termination of public assistance

      2. existing procedures:

        1. Pre-termination procedures: written statement and personal appearance before the caseworker

        2. Post-termination procedures: full judicial hearing

      3. desired pre-termination procedures:

        1. the opportunity to make a personal appearance before reviewing official

        2. oral presentation of evidence

        3. opportunity to cross-examine government witnesses

        4.  note: even when court demands pre-termination hearing, still requires post-termination judicial hearing

      4. Court’s Analysis:

        1. statutory entitlement to benefits + absolute necessity of the funds to live = big property interest

        2. balance government and private interests

          1. huge private interest: taking benefits away from people who are living on those benefits impossible to recover the loss with post-termination hearing

          2. government interest:

            1. fisc because recipients are probably judgment proof

            2. note: government’s interest in accurate determiantions is mentioned, but probably should be left to government as a policy determination

      5. note: potential benficiaries that are denied benefits in the first place are not protected

      6. Watershed:

        1. due process protection extended to “new property” (proceeds of government largesse/beneficiaries of the welfare state)

        2. on /off switch of rights/privilege superseded by balancing test (note: also balanced in Cafeteria and Restaurant Workers Union)

        3. other issues

          1. Court treats questions of whether process is due and what process is due as one

          2. How to balance these disparate interests? There is a rhetoric of balancing, but this case is decided on the sympathy the court has for the plaintiffs




    1. New Cases

      1. Board of Regents v. Roth (1972, p. 739)/ Perry v. Sinderman (1972, p. 745)—legitimate claim of entitlement?

        1. Roth: 1-year contract job with no future rights no DP rights: range of interests protected by procedural DP is not infinite (retreat from Golderg)

        2. Sinderman: professor for 10 years at school with no tenure system, but a statement in the faculty guide DP rights: expectation interests can be created by state laws, practice

        3. court distinguishes between questions of 1) whether DP applies and 2) what DP requires

          1. Does DP apply determined by the “nature of the interest”

            1. while the interests protected by the DP clause go beyond common law interests, they are still bound by the concepts of liberty/property

            2. liberty:

              1. “ordinary pursuit of happiness” (constitutional inquiry)

              2. here: no harm to reputation or disability in terms of future employment (note: the court makes some preposterous judgments about what is reputational harm) but note that “stigma” can still be a liberty interest to which DP attaches

            3. property interest

              1. unlinked from both “liberty” and the “property” of the takings clauseseems odd to limit what counts as property for DP claims at all once you unlink it (why not expand property to include anything that is important to individuals?)

              2. not created by Constitution must stem from externally defined entitlement, usually state or federal law

              3. “legitimate claim of entitlement” (not “need or desire for”) to the benefit

              4. here: reasonable expectation of re-employment

            4. On/Off switch: right/privilege distinction equally problematic (?) reasonable/unreasonable claim of entitlement

          2. What does DP requiredetermined by weighing interests

        4. Weird results

          1. equity: DP right for the one who needs it less (Sinderman has a K claim in state court; Roth has no K claim)

          2. instrumental: no DP in the case where the administrator exercises discretion (pre-deprivation hearing is useful if administrator has discretion)

        5. created a blue-print for legislatures to give complete discretion to the administrator

      2. Mathews v. Eldridge (1976, p. 766)—what does DP require?

        1. SSI termination does not require pre-termination evidentiary hearing

        2. balancing test (Mathews factors):

          1. private interest that will be affected by the official action

          2. the risk of an erroneous deprivation of such interest through the procedures used, and the procedural value, if any, of additional or substitute procedural safeguards

          3. the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail

          4.  this test treats the existing procedures as the baseline against which to compare what the plaintiff is asking for

        3. existing procedures: questionnaire; notice of contemplated termination (w/ reasoning); written response; state agency makes final determination termination of benefits opportunity to seek de novo review from state agency: de novo hearing before ALJ; review by appeals council of SSA; review in district court

        4. process desired: Goldberg v. Kelly-type full-fledged pre-termination hearing

        5. distinguish from Goldberg v. Kelly:

          1. the evidence is more “scientific” and the written submissions are coming from doctors, etc. BUT a lot of cases are back pain, etc. and mental disability

          2. higher educational background BUT most lack education, that’s why they can’t get a white collar jobs

          3. assumption that the recipients don’t actually need the benefits BUT most disability beneficiaries are low-income (see this case)

          4. SSI is not need-based

          5. beneficiaries can apply for welfare

          6.  court makes a decision denying entire class pre-deprivation hearings no separate consideration of poor recipients

      3. retreat from Goldberg

        1. Roth/Sinderman defines a whole category of cases where the DP clause doesn’t even attach

        2. Mathews cuts back on the DP requirements in the cases where DP does attach

        3. Question: do we need both steps? why not assume that DP always attaches and then balance?

      4. Cleveland Board of Education v. Loudermill (1985, p. 798)—no “bitter with the sweet”

        1. existing procedures: full post-deprivation hearing, adverse evidence, notice of charges some pre-termination hearing required

        2. Sympathetic application of Mathews factors

          1. private interest: court looks at substantiality of private interest of retaining employment without reference to welfare system (more sympathetic than Mathews court, which considered the fact that the individual can be compensated after the fact)

          2. risk of error: court recognizes process is important as a process to inform decision (in Mathews, the court only cared about erroneous outcomes, didn’t care about the administrator’s exercise of their range of discretion)

          3. government interest: court recognizes government’s interest in not making erroneous decisions (argument made in Goldberg, but not in Mathews)

        3. court: legislating “for cause” removal creates a right, which constitutional DP protects throw out any legislative qualifications on this right that are inconsistent with the DP clause

        4. Rehnquist dissent: “bitter with the sweet”

          1. sweet = continued employment w/ for cause dismissal

          2. bitter = procedures do not include pre-dismissal hearing

          3. is the logical extension of this argument that an agency should get Chevron deference in defining what “for cause” requires? Not necessarily, because he’s talking about when the same statute creates the right and defines the procedural protection

          4.  bottom line: depends on whether you think substance and procedure are separate or on a continuum




  1. The Exercise of Administrative Power: The Procedural Categories in Action

    1. Londoner/ BiMetallic distinctions

    2. APA

      1. The Chart (p. 242):

        1. categories:

          1. Informal Rule-making: §553

          2. Formal Rule-making: §553, 556-557

          3. Informal Adjudication: ?

          4. Formal Adjudication: §554, 556-557

        2. note: trend since the New Deal is from formal adjudication  informal rule-making

      2. rule-making vs. adjudication

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