Category Archives: Law: Administrative Law

NSA Responds to Petition to Conduct Rulemaking on Domestic Surveillance

Back in June I signed on to EPIC‘s request to the NSA (formally a ‘petition’ under 5 U.S.C. § 553(e)). Here is the text:

Dear General Alexander and Secretary Hagel:

The undersigned individuals and organizations, concerned about the rule of law and the protection of Constitutional freedoms, hereby petition the National Security Agency to conduct a public rulemaking on the agency’s monitoring and collection of communications traffic within the United States. 5 U.S.C. § 553(e).

We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended.

The NSA’s collection of solely domestic communications, which has been acknowledged by the President, the Director of National Intelligence, and the Chair and Ranking Member of the Senate Select Committee on Intelligence, also constitutes a legislative rule that “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking” under the Administrative Procedure Act. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. 2011). Accordingly, the NSA’s collection of domestic communications, absent the opportunity for public comment, is unlawful.

We hereby petition the National Security Agency, a component of the Department of Defense, for relief. We ask the NSA to immediately suspend collection of solely domestic communications pending the completion of a public rulemaking as required by law.

We intend to renew our request each week until we receive your response.

The NSA Responded. No prizes for guessing what they said:
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Posted in Civil Liberties, Law: Administrative Law | Leave a comment

Public Participation in State Rate Setting

Eye on Miami has a great letter from a citizen who tried to participate in state electric power rate-setting. Putting FPL on the spot should be required reading for anyone interested in energy law, state administrative law, or more general questions of public participation in government.

Here is just a small taste:

My first stop on my adventure was the public service hearing held in Sarasota on May 31, 2012. Here I first saw the most shocking thing about the public hearing process. In the lobby of the hearing site (Sarasota City Hall) were numerous FPL customer service representatives wearing FPL shirts who are greeting members of the public arriving to speak to the rate increase proposal. And FPL seems to have their own dedicated room. Which made no sense at all. It’s like a court hearing but one of the parties to the case gets to have their own room in the courthouse and a staff to lobby everyone, judges, jurors and the public as they walk by as to why their side is right. FPL also gets to have a table handing out literature. Nobody else gets to have a room or a table or representatives right outside the hearing room. There is no Audubon Society, no Environmental Defense Fund, no Florida Public Interest Research Group in the lobby lobbying (I guess that is where the term comes from!) against the rate increase or against the proposals or actions of FPL.
The importance of this cannot be overstated. I had not yet intervened in the case but when I did subsequently intervene and speak from the stage as a party at the four Miami area public service hearings, I found that FPL gets a special room at every public hearing. They get to intercept members of the public who come to the hearings with complaints, before those members of the public enter the hearing room, and redirect them to the special FPL room and give them whatever it takes to “resolve their complaint”. The evidence indicates they are much more generous in achieving customer satisfaction in the special FPL rooms at the public hearings than they are in the normal course of their business. Essentially they run bribery rooms at every public hearing site with FPSC blessing.

Posted in Florida, Law: Administrative Law | Leave a comment

Contracting Out Costs the Government Lots Extra

POGO Study: Contractors Costing Government Twice as Much as In-House Workforce. This looks like an important study. The results are sadly not incredible: if you look not at the wages employees receive in the contracted-out businesses, but rather the prices their employers charge the government for their services, contracting-out looks (sometimes very) expensive compared to using government workers.

The U.S. government’s increasing reliance on contractors to do work traditionally done by federal employees is fueled by the belief that private industry can deliver services at a lower cost than in-house staff.

But a first-of-its-kind study released today by the Project On Government Oversight (POGO) busts that myth by showing that using contractors to perform services actually increases costs to taxpayers.

POGO’s new report is the first to compare the rate that contractors bill the federal government to the salaries and benefits of comparable federal employees. The study found that while federal government salaries are higher than private sector salaries, contractor billing rates average 83 percent more than what it would cost to do the work in-house.

The study comes with some caveats, but at first glance it looks like a serious attempt to measure things that — oddly — are not routinely measured by the government that pays for all this stuff.

Posted in Econ & Money, Law: Administrative Law | Leave a comment

Something Went Badly Wrong in the Late 1970s

The toy du jour is Google’s new ngram — a way to graph the frequency of words or phrases in 10% of the books published in the US.  Here’s an ngram for “due process”.

Due Process Ngram

Something went wrong in the late 1970s — shortly after Justice Rehnquist joined the Court. Or maybe it’s just after Mathews v. Eldridge, 424 U.S. 319 (1976).

Posted in Law: Administrative Law, Law: Constitutional Law | Leave a comment

Harold Feld Doesn’t Just Explain FCC Law on a Difficult Net Neutrality Question, He Makes It Funny

It is not easy to explain the debate over whether — were the FCC to reclassify broadband as a Tittle II service — Sec. 201 and 202 of the Communications Act of 1934, as amended, would then permit or require the agency to allow tiered services or whether net neutrality would/could survive. It's complicated, but grandmaster telecoms lawyer Harold Feld not only explains it in plain English, but manages to be really funny too. I hope he'll forgive my reprinting one of the better punch lines.

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Another Satisfied Customer

A former student writes,

I am happy to report that I landed a new job with the [federal agency name deleted] and so far everything is great. As part of my duties I am reviewing the entire [agency] rulemaking process and ensuring we follow the proper administrative procedures. I also provided rulemaking guidance and explained the feasibility of creating interim final rules to the [agency's] Under Secretary on a few issues and my recommendations actually led to a change in US negotiating policy [in something big and international]. So it's looking like your admin law class easily ended up being one of the most useful and practical and I often find myself looking at my class notes for guidance.

Of all the things I have ever taught, it is the Administrative Law course that students most often come back — several years later — and thank me for. While I'm happy to take some of the credit, I think most of it belongs to the intrinsic importance of the subject.

Why more students don't take Administrative Law law school remains something of a puzzle. After years of chewing it over, I've come down to thinking there are three reasons are that AdLaw is not a more popular course:

  • It's very hard
  • It's not on the bar exam
  • No one makes TV shows about administrative law or administrative lawyers.

But law students take note: you should take Administrative Law before you graduate — ideally in your second year of law school, because it's a foundational course that will help you with many other subjects.

Posted in Law School, Law: Administrative Law | 15 Comments

Post-hoc Rationalizations and Executive Orders

It is a truism of administrative law that an agency must give reasons for a regulation at the time it is promulgated. Whether or not they are the agency's real reasons, they must be good reasons; among other things the reasons must fit the enabling statute's requirements, and comport with the facts reasonably relied on by the agency.

Moreover, if the agency's regulation is challenged in court, it is (in the main) not open to the agency (or its lawyers from Main Justice) to come up with a new and better set of reasons in a reply brief. The court (with a still quite small list of exceptions) will dismiss justifications that make their first appearance in a brief as “post-hoc rationalizations”. Admittedly, the penalty may not be that steep if the court remands the matter to the agency, which is then free to substitute the new, better reasons for the old, inadequate ones. But agencies dislike remands — they are embarrassing, they consume resources as the docket must be restarted, and they frequently reset the clock, thus requiring the agency either to enter the retroactivity thicket or only make the revised regulation effective from the date of re-promulgation. (This last reason is why clients can be quite happy with a remand, even if it is clear they will eventually lose. There's a lot of money being made in the interim.)

All that is hornbook law. Important. Contested a bit 'round the edges perhaps. But pretty settled otherwise.

But what if the regulation at issue isn't an APA rule but rather an Executive Order pursuant to a power delegated directly to the President in a statute? The ban on post-hoc rationalizations traces to Justice Marshall's brilliant opinion in Overton Park which roots the requirement firmly in the APA.

Besides Overton Park, the other great modern case where the Supreme Court articulates an agency's duty to give reasons, and the Court's unwillingness to consider different reasons, is SEC v. Chenery Corp. The case arose just before the APA was promulgated, so the decision technically wasn't an interpretation of the APA but rather of general principles of administrative law that were codified in the APA; the tradition is to read SEC v. Chenery as both consistent with and explicative of the APA. The decision seems based on fundamental principles of administrative agency review, a system informed by Due Process (and by the non-delegation doctrine), but not directly rooted in it any more than Overton Park.

The source of the rule on post-hoc rationalizations matters because the APA doesn't apply to the President; the APA applies to agencies, and the President is not, the Supreme Court has told us in an application of the Ashwander avoidance canon, an agency for APA purposes. Therefore, if Congress wishes to find out whether it can cram the APA down the President's throat, it will have to do so more explicitly than it has done in the definitions section of § 551. So far Congress has yet to accept that invitation.

Thus the question becomes whether something in the Due Process Clause (or something in the act relied on to issue the Executive Order), can be interpreted to impose an Overton Park-like requirement on the Presidency when the President issues an executive order pursuant to statute.

I suspect that the answer may be No, at least as far as the Due Process clause is concerned. If the President issues a conclusory EO explictly referencing the statute on which he relies, he may have no obligation to give reasons until his action is challenged in court unless the statute empowering him imposes that obligation (and I suspect that they don't, although it would be good if they had hooks that would allow courts to say they do). Once in court, some explanation tying Executive Order's action to the statute's purposes and empowerments is clearly due under any notion of Due Process. In the APA regime, though, that could be the dreaded “post hoc rationalization” — or a straight up violation of Overton Park — since nothing came sooner. But as we know, the APA gives you much more than Due Process does, especially since — courts preferring to do statutory analysis rather than Constitutional exegesis (Ashwander again) — the APA's existence often forestalled the extension of the Due Process revolution to matters covered by the APA regime.

(All this is sparked by a discussion with a colleague about a cursory EO issued pursuant to a statute he is writing about. If anyone knows of an article on the subject, please share.)

[Revised from the original version.]

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