JudiciaryArticle III

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Judiciary-Article III

• 1.2.6 Checks Balances

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Problem for Case Studies

• If the United States wants to remain a world
  leader in this global society, what ethical
  standards must we set for our political
  representatives?
• Context Judicial authority to review actions of
  agencies and other branches.

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Three Points

• Judiciary has authority under Article III of the
  Constitution to review executive, legislative,
  and agency decision making. Can dispose of w/o
  reaching merits.
• Agency decisions must be in writing and are based
  upon findings of fact and conclusions of law
  based upon the record. Courts give deference.
• Scope of judicial review focuses on what can be
  reviewed. Standard of review focuses on the
  level of proof requiredArbitrary Capricious
  Abuse of Discretion Substantial evidence.

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Article III

• Creates Supreme Court and inferior courts
  mandated by Congress.
• Power over all cases in law equity, arising
  under Constitution, laws, treaties.
• Trial by jury for criminal cases, except
  impeachment in state of offense.
• Treason requires two witnesses in open court and
  relate to waging war, aiding enemy.
• Judicial review of executive and legislative
  decisions, e.g. indep. agencies implementing laws
  through rulemaking.
• Decision making is regionalized so lack of
  consistency.

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Federal Court System

• Supreme Court-Supreme law of land
• Hears 150 cases/year
• Decides what cases it hears
• Ct. of App. is appellate court for agency
  decisions (D.C. Cir)
• Can dispose of matters per timeliness, standing,
  reviewability, and ripeness .
• 50 of cases involve admin. law matters.
• D.Ct is trial court for de novo review
• Usu. Not involved in agency action (except per
  statute e.g. FTC)
• Must hear what comes before it
• Federal agency-trier of fact.
• Given great deference by courts for expertise

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Judicial Review

• Rulemaking
• Set aside or remand rule if vague, overbroad,
  lack standards, exceed authority
• Limited review when discretion involved
• Can usu. challenge process, even if not
  substance e.g. policy statement should be
  subject to notice comment.

• Adjudication
• Must be a final determination of facts at
  administrative level.
• No right to a jury trial.
• Statement of findings conclusions on material
  issues or discretion.
• Review based on the record.

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Ct. of Appeals-Review of Agency Decision making

• Standing Who is the Proper party? Derived from
  common law, statutory, public interest/economic
  benefit and is there cognizable injury.
• Reviewability Is there a specific statutory
  preclusion to judicial review or does it involve
  exercise of discretion which will bar judicial
  review ?

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Ct. of Appeals-Review of Agency Decision making

• Ripeness/Exhaustion Is issue fit for judicial
  review, Is there a final decision, and Will there
  be harm if judicial review is denied?
• Primary Jurisdiction Should agency decide
  matter in first interest because it involves
  policy issues not passed upon or it is within
  special expertise of agency?

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Standing

• Conferred by 1) Common law (e.g. property) 2)
  Statute (e.g. FOIA) and 3) Public Watchdog
  (e.g. Sierra Club).
• Requires 1) a "distinct and palpable injury,"
  2) that is "fairly traceable" to warrant a
  "causal connection between the injury and the
  challenged conduct," and 3) will likely be
  redressed by a favorable decision. Lujan
• Injury-in-fact for environmental groups Effects
  are environmental aesthetic e.g. reduce
  property values, radiation. Organizations should
  have a charter related to the claim they are
  asserting, e.g. protecting endangered species.
  State number of members, related activities.
• Causation Courts remedial powers will redress
  injury.
• Taxpayer standing 1) Nexus between activity and
  injury, and that link is derived from status as a
  taxpayer.
• Agency decides scope and nature of participation.
  
• Lujan Standing can be established via affidavit
  Ripeness
• Allen Conflict between IRS and Congress Court
  in middle? disposed of on procedural grounds.
  Not the proper role of the courts to monitor
  executive actions. Proper role for Congress.

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Review QuestionsDoes P have standing?

• Should public have standing to sue on behalf of
  environmental issues on behalf of wildlife? What
  would P have to show?
• Taxpayer challenges a rule that prevents parents
  from using state education vouchers to have their
  children attend federal aid to religious schools,
  claiming that his children are denied access to a
  quality education because he wants to use state
  supported vouchers to attend a religious school?
• Physicians challenge reg. requiring parental
  consent for abortions? He has several teenage
  patients who want abortions without getting
  parental consent.
• Indigents challenge an IRS designation of a state
  hospital as charitable facility. The hospital is
  the only hospital in the area but it has no
  non-emergency services to the poor.
•  

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Watchdog Groups

• Purpose organizational documents establish
  scope of focus.
• Not-for-profit organizations who can educate, but
  cannot lobby.
• Legal resources to file actions vs agency.
• FOIA requests investigative work contacts.

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Reviewability

• Strong presumption that agency actions will be
  reviewable, unless
• 1) specific statutory preclusion or
• 2) action falls within agency discretion.
• Must look at specific statutory preclusion via
  legislative history.
• Arises when consider pre-enforcement review.
• Government must show no judicial review intended.
  
• Exercise of discretion not to act is usu. not
  reviewable. Heckler

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Exceptions

• Even where statutory preclusion, may still be
  able to challenge process or constitutional
  claim, e.g., improper delegation or violation of
  constitutional rights.
• Matters re intelligence military are generally
  not reviewable. Courts give great deference. So,
  the decision to remove a homosexual from the CIA
  would not be reviewable by statute, but could be
  reviewable as it relates to a violation of equal
  protection. Webster v. Doe
• Federal spending is not subject to agency
  discretion and is not reviewable. But can review
  whether the agency used proper procedure.

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Timing of Judicial Review

• Ripeness- case or controversy
• Finality-Final decision
• Exhaustion of remedies-Completed administrative
  process.

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Ripeness

• Ripeness relates to whether there is a case or
  controversy.
• Test 1) Fitness of issue for judicial review
• 2) Hardship in withholding court consideration.
  Abbott
• Used with preenforcement review and finality.
• Preenforcement review is ok if 1) legal issue
  fit, and
• 2) regulation requires immediate and significant
  change in conduct for compliance.
• If the challenge is based upon APA, and not
  statute, then must have final action legal
  wrong.

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Finality

• Need a final order or rule from ultimate decision
  maker.
• Two-part test
• Completion of the decision making process and
• Action must affect rights or from which legal
  consequences will flow.
• Agency inaction is considered an action.
  Reviewing court can compel agency action
  unlawfully withheld or unreasonably denied.

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Exhausting Administrative Remedies

• Complete all administrative reviews and appeals
  before going to court.
• When required by statute, agency rule, or
  provides a automatic stay pending appeals.
• If no appeal process or rights, then no need to
  exhaust remedies.
• Exceptions for non-APA 1) irreparable injury if
  no court action 2) seek equitable relief 3)
  show of bias or futile.

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Problem for Case Studies

• What checks and balances must be in place in the
  judiciary to maintain ethical standards?

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Problem for Case Studies

• What checks and balances must be in place in the
  judiciary to maintain ethical standards?
• Right to judicial review
• Standing to sue

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Context for Judicial Review

• Oversight of legislative acts of Congress
• Interpretation of legislative intent in a
  statute
• Application of a statute to a class of
  individuals
• Scope of delegated authority and
• Abuse of power/discretion.

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Standard of Judicial Review

• Part 2 If review is proper, what standard to
  apply?

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Questions to Ask

• 1) What type of action is involved?
• Agency action vs Legislation
• Legislative vs. nonlegislative (APA 553,
  556-557)
• Adjudication (APA 554, 555(e), 556-557)
• 2) What is the basis for the challenge?
• Question of law vs. fact
• Statutory construction
• Enforcement
• 3) What standard should be applied?
• Chevron-Statutory construction
• De Novo Review
• Substantial Evidence
• Arbitrary Capricious

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Questions of Law (706)

• Agencys interpretation of law is wrong (706
  (A))
• Arises where rule or order is unconstitutional
  (706 (B)
• Agencys rule is beyond agencys statutory
  authority (706 (C))
• Agency did not follow its own procedures (706
  (D)).

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Statutory Construction
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Standards of Judicial Review Substantial
Evidence Test

• Applies to issues of fact in formal rulemaking
  and adjudication under APA 556-557.
• Means that such relevant evidence as a reasonable
  mind might accept as adequate to support the
  conclusion.
• Fairly deferential and
• Burden to show by a preponderance of evidence.

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Standards of Judicial Review Arbitrary
Capricious

• Means willful and unreasonable action
• without consideration or disregard of facts
• or without determining principles.
• Applies to factual and policy issues in informal
  and hybrid rulemaking and adjudication.
• Apply a hard look where assumptions must be
  stated, process revealed, rejection of
  alternatives explained and the rationale for the
  ultimate decision set forth.
• Requires some record.

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Effect of Judicial Review

• Uphold agency or legislative action.
• Repeal or set aside all or part of improper law
  or agency rule or decision.
• Remand to agency for follow-up action.

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Abuse of Discretion Sufficiency of Record

• Deemed insufficient in informal adjudication
  where a person has material information that
  might affect the decision,
• Remedy to remand the case to allow the person to
  supplement the record upon reconsideration.
• If no record, then can remand for supplemental
  information.
• Arise if agency has refused to examine data or
  provide an explanation reliance on factors not
  contemplated by Congress Failed to consider key
  aspect of problem explanation runs counter to
  evidence.

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Non-APA Matters

• Applies to 1) , policy statements, 2)
  interpretative rules, 3) procedural, and 4) where
  there is a finding of good cause.
• If no notice is required, then neither will
  there be comment.
• Test If there is a substantial impact or
  legally binding, then, it is a legislative rule
  requiring notice and comment minimally.
• Should not make new policy, The more specificity
  in the rule, the more likely legislative.
• Interpretative rule should not be inconsistent
  with legislative rule.
• An agency can change its interpretation.

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Problem

• Problem Is there a legally permissible way to
  restrict executive influence in rulemaking and
  decision making in adjudication through ex parte
  communications with agency personnel by OMB per
  Executive Order 12866 or by the Justice
  Department in enforcement of laws through
  executive guidelines, policy statements or
  interpretative rules that limit or expand the
  scope of the agency action?
• If the subject of such information is not part of
  the record or disclosed, what impact should it
  have on judicial review of action rulemaking
  and/or adjudication?

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Discussion Questions

• 1) What are the ways the Executive can
  informally influence agency decision making?
• 2) Should the existence of such information or
  exchanges be required to be made public and
  included in the record?
• 3) Are the interests in adjudication and
  rulemaking similar that the rules governing ex
  parte communication should be the same?
• 4) In adjudication, the standard of judicial
  review for factual issues in formal rulemaking
  and adjudication or hybrid rulemaking requires
  substantial evidence in informal proceedings the
  standard is arbitrary and capricious. What does
  this say about the need for on the record
  decision making?

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Discussion Questions

• Would you include or exclude the following
  information in a rulemaking and adjudication?
• a) Executive memo clarifies a policy
  interpretation of how a statute is to be
  implemented.
• b) Empirical evidence given to the OMB about the
  cost of a proposed rule not requested by the
  agency.
• c) Contents of a meeting between OMB and a top
  contributor of PAC to the head of a subcommittee
  on pending rulemaking that will adversely affect
  his business.
• d) Meeting between agency head and OMB regarding
  their decision in a formal proceeding.
• e) Confidential internal memorandum revealing
  wrongdoing by the agency in the decision making
  process made by an agency whistleblower.