Exam Blog

Administrative Law - Spring 2009

Questions are flush, my answers are indented.

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I am not sure if I missed it in the book, slides, or even the internet but the five questions spanning subpoenas I cannot seem to find answers for anywhere (including fellow classmates). If you could provide some answers or directions I would greatly appreciate it.

Review this section of chapter 8: C. Fifth Amendment Limits on Reporting Requirements and Subpoenas

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I am confused about no law to apply in the case about the FDA and lethal injections.

You should always think about the "no law to apply" doctrine from the perspective of the court reviewing the action, or failure to act. When an agency wants to do something, the court has to have enough direction from Congress to evaluate whether the agency is properly carrying out the Congressional mandate. If the delegation is too general, the court cannot determine if the agency is acting properly. OTOH, if the agency is refusing to act, as when the FDA refused to stop the use of regulated drugs for lethal injections, the court will not force the agency to act unless the law is clear and gives the agency no discretion. Thus there was no law to force the FDA to act.

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What are situations when an individual does not have rights against a third party subpoena? Are these the same situations as apply to third party reporting?

Review this section of chapter 8: C. Fifth Amendment Limits on Reporting Requirements and Subpoenas

When does exhaustion result in preclusion? Is this a reference to the Sims case dealing with issue exhaustion?

Yes, it is an issue in Sims. The idea is that when the agency requires issue exhaustion and the regulated party does not present all the issues to agency, then these issues will not be reviewed by the courts.

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In class you told us not to worry about the delegation doctrine. I think there’s even a slide that says the book covers it in great deal but we don’t have to worry about it. Should I worry about the study questions on the delegation doctrine?

You need to know that it was a problem, and how it was solved. In a nutshell, to coin a phrase, in the old days, the Supreme Court believed that there were limits to how much legislative power could be delegated to an agency. See below.

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> 8. What is the "no law to apply" doctrine and how did it resolve the
> delegation doctrine problem?
> #8 - Aren't these essentially the same issues? "no law to apply" is an
> overly broad statute or regulation and the "delegation problem" is an
> unconstitutional overly broad grant of power. I don't understand how
> one can resolve the other.

In the old days, when Congress delegated too much power to an agency, i.e., too much freedom to pass its own laws through regulations, the court would declare the statute unconstitutional as violating the delegation clause.

Once the court accepted that it was constitutional to delegate power to an agency, there were still situations where Congress gave the agency too much power by sufficiently spelling out in the statute what the agency was to accomplish under the statute. Rather than declare the statute unconstitutional, the court rules that the statute does not provide enough law for the agency do know its role and for the court to evaluate that role, i.e., that there is no law to apply. So the agency still must go back to Congress for more direction, but the court does not have to be in a constitutional fight with Congress. This solves the problem of striking down the law without questioning the general authority of Congress to delegate power. It just requires Congress to be more specific.

> 11. Discuss mandamus, including the standards for relief and when you
> would use it.
> > #11 - When/where did we discuss mandamus? I'm struggling with finding
> information.

Bonvillian v. Dep't of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal - Bonvillian, round II, 2008 CA 0591

> May congress give anyone standing to sue?
> How does this satisfy Injury, Causation, and Redressability?
> I think I understand that the answer to #1 is "Yes", but #2?

Think about the Endangered Species Act. Do you have to personally kiss a snail darter to bring the case? These must always be Injury, Causation, and Redressability, but the person bring the suit does not have to personally suffer the injury. Congress can give standing to sue on behalf of others, on behalf of the government (qui tam actions), or on behalf of society (Endangered Species Act)

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For the past 2 days I have been trying to answer the questions that you posted on you website as our exam review. I am finding this task very difficult. I have read the E&E book cover to cover twice, and I have read the assigned cases, yet I am still finding that answering these questions to be difficult, and is seems like you have yet to post the other half of the questions. Should I be concerned? Do you have any suggestions for the best way to study for your test? Maybe look at the old tests? Is the format of your test going to be like 2004 where you ask 20 questions about specific cases looking for case names? Or more like 2005 and 2006?

My guess is that you are overreading the questions. I have posted two additional exams to the archive, 2007 with answers, and 2008. The answers to 2007 are as terse as can be while still answering the question, I would not expect a student to be as well focused. The exam will resemble these, and I think seeing the answers will help you better understand what I am looking for. Previous exams, which focused more on cases, where taught from different materials.

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