• FTC promulgated substantive rules of business conduct. There was a rule declaring that the failure to post octane rating numbers on gas pumps was an unfair method of competition and an unfair or deceptive act or practice. District Court declared that the Commission lacked authority to issue such rules.
• HOLDING—Court held that the FTC is authorized to promulgate rules DEFINING THE MEANING OF STATUTORY STANDARDS of the illegality the Commission is empowered to prevent.
• FTC had a VERY GENERAL grant of authority on a VERY BROAD body of law: “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful”

• Railroad companies brought an action to set aside the incentive per diem rate established by  the ICC in a rulemaking proceeding. ICC received submissions from railroads only in written form
• HOLDING—The ICC’s procedure satisfied both the Interstate Commerce Act and the APA; the words “AFTER HEARING” DID NOT TRIGGER FORMAL RULEMAKING
• Court said that the  ICA had no triggering language and therefore it was not formal rulemaking and no oral hearing was required
• NOT “MAGIC WORDS” TEST; but the court said that there should be language pretty close to “hearing on the record” before they will require formal rulemaking
• What about the constitutional DPC claim? Court said that in situations where you are dealing with a regulation that affects a large number of people, the DPC doesn’t seem to apply/ have any impact;

• 
  
• HOLDING—1. Court said that the courts did not have the authority to require additional procedures beyond those found in the APA except as might otherwise be required by other statute or the Constitution
• 2. HOWEVER, AN AGENCY MUST FOLLOW ITS OWN RULES
• • EFFECT—This decision precludes courts from adding additional procedural requirements to agency rulemaking beyond those contained in the APA or another statute.  Of course, if an agency by rule voluntarily undertakes to provide additional procedures, a court can require the agency to follow its own rules until it amends or repeals them. Also, if the Constitution mandates a procedure beyond that in the APA, the courts can clearly require compliance with the constitutional mandate.

• HOLDING—The decision whether to make policy by adjudication or rulemaking is the agency's, assuming the agency in its informed discretion (absent specific congressional mandate).  
• essentially, they can choose to go after someone thru adjudictation or prospectively to everyone thru rulemaking
• THE COURT CAN'T DO ANYTHING ABOUT THIS
• 
  

• HOLDING—“We consider that rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such judgment in a particular case will depend on the thoroughness evidence in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade, if lacking power to control.
• Read to mandate STRONG DEFERENCE to the AGENCY INTERPRETATION

• although agencies can rescind their rules, THE RESCISSION MUST NOT BE ARBITRARY AND CAPRICIOUS.
• 
  
• 4 ELEMENTS COURT USED TO EXAMINE IF A&C:
• • 1) Did the agency consider facts that Congress did not want it to consider?
  • 2) Did the agency fail to consider an important factor (as defined by Congress)?
  • 3.) Did the agency present an explanation that is inconsistent with the record (what in the record justifies the decision they just made)?
  • 4) Did the agency give a wholly implausible explanation (does it make sense)?
  • Really comes down to whether the agency’s decision was REASONABLE!

HOLDING—Court found that the termination decision was committed to the agency’s discretion by law, so judicial review of his claim of unlawful termination was not allowed. However, the constitutional claim was allowed; Congress couldn’t grant the Director the discretion to violate the Constitution.

In cases where judicial review is precluded by the express language in the organic act, you don’t even have to talk about the APA (this is why Johnson and Bowen didn’t discuss APA §701(a) at all)

• Does the Court hold that Congress CANNOT preclude judicial review of a constitutional claim? No, they back off that question; however, they say that in the absence of extremely clear language, they are gong to say that Congress didn’t allow review
• Does Scalia agree with the “no law to apply” formula? NO; he sees this all as a discretionary decision. Believes there are 4 evolving AREAS WHERE THE COURT SHOULDN’T GET INVOLVING:
• Foreign Affairs
• Political
• Military Doctrine
• Prosecutorial Discretion
• Does it follow from the court’s analysis that no decision is ever FULLY committed to agency discretion by law? Rehnquist would take the position that there is ALWAYS LAW TO APPLY because there is always constitutional law and no discretion for those issues
• Does the Constitution commit some decisions to executive discretion? Yes; Take care power, Commander in Chief power (foreign affairs), Appointments power
• So as a lawyer, how do you challenge a “discretionary” agency decision? You would challenge the constitutional basis

• NEW TEST—“Whether the interest sought to be protected by the complaint is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”
• Both “arguably” and “zone of interests” are kind of squishy language meaning if you can argue with a straight face that the parties should get in, they will probably get in

• CAPTURE THEORY—The notion that the reason “we” are not satisfied with the decisions agencies are making is because they have been “captured” by the groups they regulate and that the groups are dominating the agencies’ decision-making
• One approach would be to get agencies into court more often—broaden the field of litigants so that agencies are having to go to court; this offsets “capture”

ripeness doctrine involved.

ripeness comes into play when the enforcement hasn't happened yet.

here, it didn't matter that the ruling hadn't been finalized because it would have an immediate effect when it was finalized.

• Why does the court conclude that agency action was NOT FINAL here?
• Decision was NOT DEFINITIVE (i.e. agency has just started proceedings)
• Decision has NO LEGAL FORCE (i.e. does not alter Socal’s rights and duties)
• Fact that it requires cost of defending does not equal legal force

• darby went through HUD hearing but didn’t request option review and filed suit in court
• HOLDING—s.ct. said that he had exhausted all administrative remedies
• Does Darby represent a major change in the law of administrative exhaustion? Essentially the big change is that the balancing test is GONE!
• darby rule:  when congress (in the organic stat.) or the rules of the administrative body say you need to exhaust remedies, then you must.  IN THE ABSENCE OF A MANDATE, EXHAUSTION CAN'T BE ORDERED BY ANYONE.
• • EXCEPTIONS TO RULE
  • GENERALLY--Administrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficient of administrative autonomy that the exhaustion doctrine is designed to further.
  • (1) IRREPARABLE INJURY--most important factor is the severity and type of plaintiff's injury
  • Mere litigation cost and inconvenience is not sufficient; however, if economic burden would be severe and irreparable, a court may be moved to grant review
  • (2) FUTILITY OF EXHAUSTION REMEDIES
  • (3) INADEQUATE REMEDIES
  • (4) UNAUTHORIZED PROCEDURE
  • (5) CONSTITUTIONAL QUESTIONS

Court STRUCK DOWN a provision of the NIRA that authorized the President to approve “codes of fair competition” for the poultry industry and other industries. Could not give the President a free gift of power to make up laws as he goes along.

promoting "fair trade" was the same as giving unfettered discretion to president because there was nothing to go on to overrule/check his decisions.

different than delegating something like this to the fcc or other agency bc they make their decisions "in the light of day".

• HOLDING—Court invalidated what had become a popular means for congressional control of administrative action: the “legislative veto.” Held that the provision violated the Bicameralism Clause and the Presentment Clause
• What was the Court’s response to the argument that Congress found the legislative veto its best and perhaps only way to hold executive agencies accountable? System wasn’t designed to be efficient; designed to be a democratic government
• Was this really a legislative act? Doesn’t matter; if it is not a legislative act , then it must be a judicial or executive act and Congress cannot the job of other branches of government; only works if you say it is something new like quasi-legislative
• STRICT INTERPRETATION because if you are allowed to make up powers, the legislative branch could control everything
• How can agencies make legislative rules without going through bicameralism and presentment? They are still executive agencies so the rulemaking is really an executive act; not really enacting legislation in the strict sense
• THREAT TO SEPARATION OF POWERS—Congress could put itself in a position to both make the laws and enforce the laws; also interferes with the ability of the president to do its job
• BOTTOM LINE—
• Congress may delegate (quasi-legislative) power to executive
• Congress can control exercise of such power only by further legislative act
• Congress may not participate directly in execution of laws
• Formalism sometimes is functional

HOLDING—Court struck down a federal statute that required the President to get Senate approval to remove a postmaster. Held that Congress could NOT interfere with the President’s removal of an EXECUTIVE officer whom the President had appointed with the Senate’s advice and consent.

• Notion of the UNITARY EXECUTIVE—President is responsible for these guys and that he is supposed to make sure that the law is faithfully executed. President must feel confident in the people that work for him.
• 2 Different arguments:
1. UNITARY EXECUTIVE—idea that the presidency and executive branch have to be unified as a single organism exercising the will of the president on all matters; the president needs to have confidence in the executive branch. IF he loses confidence, he cannot ensure that his constitutional duty is being done.
2. APPOINTMENTS CLAUSE ARGUMENT—Foresees that all officers in principle are appointed by the president with advice and consent of the Senate; with inferior officers, where Congress has not helped with appointment, President should have full authority to dismiss (comes form silence in Constitution on dismissal; inferred from power of appointment)
   
   Can Congress limit removal authority over inferior officers? If Congress vests power “in president alone,” Congress cannot limit that. BUT, if inferior officer and power not vested in President, Congress can limit the way they are removed.
   
   One of the things that bugged the Court about this case was that Congress just inserted itself in the decision; like a one-house veto 

The Court upheld the Independent Counsel provision of the Ethics in Government Act because it did not violate the separation of powers by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the independent counsel, the person holding that office was still an Executive branch officer, not under the control of either U.S. Congress or the courts.

The relevant constitutional provision, the Appointments Clause, reads “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper . . . in the courts of Law . . . . ” Art II. This language seems to clearly give Congress the power to vest the appointment of an executive official in the “courts of Law.” Thus, Congress is authorized to make “interbranch appointments.”

There’s no separation of powers problem with regard to the Act because the statute (1) appropriately puts the removal power in the hands of the Executive Branch: an independent counsel may only be removed by the Attorney General for good cause and (2) does not impermissibly interfere with the functions of the Executive Branch.

CREATES A LOOSE CANNON PROBLEM BECAUSE PRESIDENT CAN'T REMOVE THE GUY.