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Attack Sheet

The document outlines the legal framework surrounding Congress's delegation of legislative powers to agencies, focusing on the nondelegation doctrine and agency deference principles. It discusses the criteria for determining whether Congress intended to delegate authority and the standards for agency rulemaking under the Administrative Procedure Act (APA). Additionally, it emphasizes the importance of statutory interpretation and the need for agencies to follow procedural requirements when promulgating rules.

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19 views4 pages

Attack Sheet

The document outlines the legal framework surrounding Congress's delegation of legislative powers to agencies, focusing on the nondelegation doctrine and agency deference principles. It discusses the criteria for determining whether Congress intended to delegate authority and the standards for agency rulemaking under the Administrative Procedure Act (APA). Additionally, it emphasizes the importance of statutory interpretation and the need for agencies to follow procedural requirements when promulgating rules.

Uploaded by

m.fan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

Did Congress pass a statute and mention an agency at all?

1. Nondelegation doctrine: Congress can’t delegate the entirety of its


legislative powers; Is there an intelligible principle?; ask “would you feel
comfortable making claim it’s not intelligible in court?”
a. any language in statute limiting agency’s scope/giving guidance:
intelligible principle?
i. Did they direct Agency to include something? (Whitman)
ii. Did they define any terms which could suggest a restrained
purpose thereby intelligible?
b. Does it meet the standard of 2 cases not qualified?
c. CONCLUSION
d. Give opinion
2. Agency Deference:
a. Did Congress intend to delegate authority to the agency? (Mead)
i. Did Congress expressly delegate to the agency to promulgate
here?
1. If yes → Chevron
2. If it’s a final rule -> good to go
3. If it’s not - does this agency have history with nprm here?
ii. Does agency usually have authority to make NPRM’s on the
matter in similar areas?
1. If yes → maaaybe Chevron (persuasive, but Mead says
there’s a few examples like NationsBank of N.C. v.
Variable Annuity Life Ins. Co where NPRM was neither
necessary nor afforded to agency)
a. Opinion
iii. If none above → Skidmore
b. Did Congress directly speak on the precise issues? (Chevron)
i. If yes → done
1. (1) What is the question about whether Congress spoke to
matter?
2. (2) statute’s text
a. Who’s interpretation makes most sense under
ordinary/specialized meaning? Does the agency’s
interp. Make sense? (consider that meaning using
text tools starting with ord meaning like both
Muscarello and Sweet Home)
i. Then: Linguistic canons, whole act, whole
code
3. Textual Canons
4. Substantive Canons
5. Legislative History
a. Give opinion
6. Intentionalism
a. Holy Trinity
7. Purposivsm
8. Textualism
9. FDA v. Brown and Williamson Tobacco Corp.
ii. If no → continue
1. If there’s ambiguity → express delegation to agency
(Chevron)
c. Did Agency properly interpret the statute? (Chevron)
i. If reasonable → 👍
1. Reasonable if not arbitrary and capricious

Did the Agency make any rules?


● (2) Did Agency promulgate the rule(s) according to APA and Notice &
Comment Rulemaking?
○ Did they include statutory, scientific, economic, and/or political
analyses they were required to include and omit any they were
prohibited from including?
■ Did POTUS ask them to do a specific analysis?
● Executive Order (since Reagan), every major statute over
$100million must include cost-benefit analysis
○ If completely absent → arbitrary and capricious
■ Did Congress?
○ Did they meet NPRM minimum requirements and file with the federal
register?
○ Did they accept submissions from public? AND did they incorporate
relevant suggestions?
○ Did they issue a final rule + general statement saying rule’s basis and
purpose (which meets requisite criteria?)
○ Does agency want to amend/rescind final rule?
■ If so, did they issue a new NPRM and a new rule as required?
■ If so, does modification/reg. pass the arbitrary and capricious
standard?
● (3) Does the final rule pass the State Farm “reasoned elaboration” standard?
Textual Canons
Substantive Canons
Legislative Intent

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