Administrative Law - 2005

Exam Blog

>Regarding the "5th Amendment Issues" slide...
>Why wouldn't voluntarily created documents be protected by the 5th if they indicate your own personal criminal activity?

Because you were not compelled to create them - the 5th amendment is about compelled testimony, not about blocking access to information.

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> A few of us are reviewing for the test tomorrow and we were wondering
> if you could tell us what the overall layout of the test was going to
> be? Do we need to prepare for long essays, short essays, short answer,
> etc.? If you wouldn't mind e-mailing us back, we would really
> appreciate it.

No answer requires more than 2 pages.

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> I am a student in your Administrative Law class, and (while I
> know this
> may be redundant) I would like to confirm what materials are/are not
> allowed in the exam. This is my first semester to really
> have any open
> book exams, and I've had three with varying levels of "open" - so for
> the sake of the honor code, etc. I want to ensure that I only have
> permissible materials in Admin.
>
> Are all/any of the following permissible?
>
> Class Notes, the Examples and Explanations text (tabbed),
> materials such
> as the Federal APA provisions (printed), exam prep question/answers,
> cases (printed), outline/notes created in a group study setting, etc.

You may bring any of those in. However, if you bring a wheelbarrow of materials in with the idea that you can just look things up, you will waste your time - I am not going to ask you simple identification questions that you can look up. The materials are really a security blanket - we covered a lot of material that was not in the book, and we had many class disruptions, esp. for the visiting students. Hopefully your outline and book will have all you need.

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> My problem may be that I don't understand what standardless
> delegation is, but APA section 701 says that you can get
> judicial review unless the agency action is committed to
> agency discretion by law. Would this basically mean that
> judicial review would likely not be available for agency
> actions pursuant to a statute with standardless delegation?

You have two different issues intertwined here. 701 "committed to agency discretion" is about whether judicial review is available at all. Remember the smallpox vaccine injury compensation act we discussed - it provided that the secretary of HHS would decide the award and that this could not be reviewed by the courts. This is committed to agency discretion.

Standardless delegation is about whether the statute gives the courts enough guidance to review agency actions that are subject to judicial review, which is almost all agency actions. Look at the discussion in the book of Chevron and related cases - if the statute does not give the courts enough information about what Congress wanted to accomplish, the court may decide that the regulation does not comply with Congressional intent. Thus the courts no longer worry about whether Congress can delegate power to agencies, only about whether they give agencies enough detail in the statute so that the court can decide if the agency is doing what Congress wants.

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> I am working through the study questions you posted and I had a question
about one. For the one that asks us to list the key federal APA sections
that govern adjudications and what each provides, how in depth do you want
us to go? Can we just put the heading for each section, or would you rather
we listed the provisions of each section?

Remeber that the purpose of the questions is to get you to look at the provisions and think about how the APA governs adjudication. Beyond that, you do not need to know the details of the provisions, just how they help shape adjudications. Also remember that most adjudications are not APA adjudications at all, but are more informal. The key is what is required as a matter of constitutional right, which we discussed with Matthews and Goldberg and several other cases.

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> I am confused about the difference between the frst limitation (page 324)
on 5th Amendment protection (cant use it to resist producing a volunarily
prepared document on the ground that the contents of the document would be
incriminating) and the "act of production" doctrine (page 325) that allows
5th Amendment protection.

It is pretty subtle. The theory is that if the existence of the document, rather than its content, is incriminating, then producing it would be self-incrimination. For example, your client is in a fight with the IRS on undeclared tax earning. He has a sideline selling speed and keeps records of his illegal drug businesses. The IRS would like to know the amount of that income - the content of the document. The police would like to know that he has drug income - the existence of the document, without regard to how much drug income he has.

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> Please clarify something from the "exemptions from rulemaking"
> question and Ch. 5 of the book:
>
> Is there a real and practical difference between the "exemptions" from
> rulemaking in 553(a)and the "exceptions" to the notice-and-comment
> rulemaking in 553(b)?

553(a) exemptions do not have to go through notice and comment rulemaking at all. They are either national security/foreign affairs matters within presidential discretion, or govern internal agency management and contracting.

553(b) is about special circumstances where you can put rules into effect in emergencies and take comments later, or when comments would not be useful, such as publishing the IRS interest rate, which is based on a statutory calculation, or when there are technical corrections such as typos. These are published, the only question is whether and when the agency takes comments on them.