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Chapter 47 - Administrative Law
47-8
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
basis of their emissions of other pollutants. Therefore, applying the BACT
requirement to them would not significantly expand the regulatory regime.
e. Discuss the standards courts employ when reviewing agency action (little deference to
agency on questions of law; greater deference to agency on questions of fact or policy;
deference to agency interpretation of ambiguous statutory language; three standards of
review: de novo review; substantial evidence test; arbitrary and capricious test).
Examples: Utility Air Regulatory Group (discussed above); Problem Cases #2, #3,
and #8; National Cable & Telecommunications Association v. Brand X Internet
Services., 545 U.S. 967 (2005) (the Supreme Court decision discussed in the
Cyberlaw in Action box at p. 1291 of the text); Mayo Foundation for Medical
a way that excluded medical residents even though there was an educational aspect to
their work, because they worked far more than 40 hours per week. The regulation was
not arbitrary and capricious. Rather, it was a reasonable interpretation of an undefined
term in the statute and was thus entitled to deference from the Court.
student exemption. Ask why the Mayo Foundation and the University of Minnesota
challenged the regulation. Have students explain why the Supreme Court regarded the
regulation as a permissible interpretation of the statute. Explain why courts engage in
Chevron deference (deferring to reasonable agency interpretations when statutory
language is ambiguous.
5. Discuss the information controls to which agencies are subject.
a. Discuss the Freedom of Information Act, highlighting its rationale, basic provisions
regarding availability of information, and exemptions. In particular, note Exemptions
1, 2, 4, 5, and 6.
Milner v. Department of the Navy (p. 1295): The Supreme Court holds that FOIA
used by the Department of the Navy).
Points for Discussion: Ask students about the “Low 2” and “High 2” interpretations
developed by lower courts regarding Exemption 2. Ask why the Court concludes that
“clean slate” interpretation. (Because the fact that materials are used by an agency’s
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“personnel” doesn’t make those materials “personnel records” in the usual sense of
that term. Note, too, the Court’ s nods to the general transparency-focused purposes
Additional Example: Problem Case #10.
b. Discuss the Privacy Act of 1974.
c. Discuss the Government in the Sunshine Act.
F. Issues in Regulation
1. Discuss the differences between "old" regulation and "new" regulation.
2. Discuss captive agencies and agency shadows.
policy issues it raises. See the questions raised in the Ethics in Action box at p. 1299.
IV. RECOMMENDED REFERENCES:
A. KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE.
B. WILLIAM F. FOX, UNDERSTANDING ADMINISTRATIVE LAW.
REGULATORY UNREASONABLENESS.
F. E.P. Krauss, Unchecked Powers: The Supreme Court and Administrative Law, 75 MARQ. L.
REV. 797 (1992).
387.
V. ANSWERS TO PROBLEM CASES:
1. The Supreme Court held that the regulations were a permissible interpretation of the statute. In
view of the ambiguous language used by Congress, the Secretary's interpretation of the statute
favoring childbirth over abortion and to implement that judgment by the allocation of public
funds. In addition, the court concluded that the regulations did not unconstitutionally condition
provided no obstacle to the exercise of that right. According to the Court, the government's
decision not to fund abortion counseling left a woman in no different position from what she
Chapter 47 - Administrative Law
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
would have occupied if Title X had never been enacted. Moreover, doctors were still free to
provide, and women to receive, abortion information outside the context of Title X projects.
Finally, the Court concluded that any adverse effect on indigent patients' access to abortion
2. Yes, the Supreme Court held. The term “harm,” as used in the statute, could logically be
interpreted as covering indirect as well as direct injuries. Indeed, the Court noted, such an
stressed that Congress had given the Secretary of the Interior broad discretion to regulate so as
to further the statutory purpose of protecting endangered and threatened wildlife. In light of
3. No. The Supreme Court held that the FCC did not act arbitrarily and capriciously in shifting
its announced enforcement posture so as to make a nonliteral (expletive) use of the F-word or
agencies under the arbitrary and capricious standard and provides a clear message that an
4. No. The Supreme Court unanimously upheld the FDIC's suspension of Mallen pursuant to the
Financial Institutions Supervisory Act of 1966, which allows such suspensions without a pre-
that the grand jury indictment of Mallen--and the probable cause finding stemming from that
proceeding--served as a further procedural check and provided a reasonable basis for a
486 U.S. 230 (1988).
5. The Supreme Court held that the CIA's argument was correct as to Doe's claim that the
termination was unlawful under section 102(c), but not as to Doe's claim regarding alleged
section 102(c) language giving the CIA director the power to terminate an employee when the
director "shall deem termination necessary or advisable in the interest of the United States,"
Court, as precluding judicial review of claims that constitutional rights were violated. The
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Court therefore remanded the case for further consideration of Doe's constitutional claim.
Webster v. Doe, 486 U.S. 592 (1988).
6. No. The Supreme Court held that FOIA Exemption 5 did not apply to the documents
requested by the Klamath Water Users Protective Association (Water Users Association) and
communications between the Department of the Interior’s Bureau of Indian Affairs and the
Klamath Tribe--were neither inter-agency nor intra-agency in character and thus did not satisfy
the agency in ways similar to how agency employees serve. According to the Supreme Court,
however, the reasoning used regarding consultants did not apply to the Klamath Tribe and its
rights. These interests were contrary to those of other water rights claimants, including the
claimants represented by the Water Users Association. The tribe, therefore, was not similar to
Association, 532 U.S. 1 (2001).
7. Yes. After concluding that the banks and the Bankers Association had legal standing because
Congress that the same common bond of occupation must unite each member of an
Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998).
8. No. The Supreme Court held that DOW had failed to show the concrete and actual or
Because anyone could conceivably come into contact with some member of an endangered
(1992).
9. No. The warrantless inspection provisions of the SWMA were valid under the "closely
regulated business" exception to the warrant requirement. The legislature determined that the
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regulated; and anyone engaged in this business activity should have been aware, because of
the vital public and statutory interest, that unannounced inspection could be anticipated.
Pennsylvania Dept. of Environmental Resources v. Blosenski Disposal Service, 566 A.2d 845
(Pa. Sup. Ct. 1989).
10. Public Citizen made an incorrect legal argument regarding Exemption 4 when it asserted that
‘the public would learn something directly about the workings of the Government,’ then the
information should be disclosed unless it comes within a specific exemption” (citation
those INDs could properly be withheld under Exemption 4. The fifth IND was subject to
disclosure, however, because there was insufficient evidence of likely competitive harm to
898 (D.C. Cir. 1999).
11. The Seventh Circuit saw no Fifth Amendment problem with the CFTC's subpoena demanding
copies of Collins's federal income tax returns, but held that the subpoena should not be
enforced because of the danger that compelled production of the types of documents being
sought could tend to compromise the government's interest in the effective administration of
because the law requires taxpayers only to prepare and file tax returns, not to make copies of
them. Even so, in the words of Judge Posner (wrote authored the Seventh Circuit’s decision),
Collins had no "constitutional leg to stand on." The court offered three reasons for concluding
that the subpoena would not violate Collins's Fifth Amendment rights. First, Supreme Court
the Fifth Amendment issue that the parties evidently thought was the heart of the case, the
Seventh Circuit went on to hold that it was an abuse of discretion for the trial court to order
enforcement of the subpoena. Judge Posner's opinion revealed a twofold concern: (1) that the
CFTC had not shown any particular need for copies of Collins's tax returns in order for its
protect were more those of the Internal Revenue Service than of Collins. The Court seemed to
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indicate that if the CFTC had made a stronger showing of need for the copies of Collins's tax
returns, the outcome might have been different. Presumably, this would mean that if the CFTC
had shown that it could not elsewhere obtain the information it expected to find in the tax
returns, the CFTC would have stood on much firmer ground in seeking the tax return copies
by way of subpoena. Commodity Futures Trading Commission v. Collins, 997 F.3d 1230 (7th
Cir. 1993).
