“Hard Look” and “Soft Look”

Part I. Q1: Does the application of the “hard look” and “soft look” as described in the chapter seem arbitrary or sensible to you? Why?

The application of the two approaches of “hard look” and “soft look” are more sensible rather than arbitrary to me.

Below, I would illustrate my point from two perspectives, including the analysis of the structure of American judicial system and application of the two approaches in practice:

  1. The court system—the nature of case law of American judicial system makes judges in cases more flexible and reasonable rather than arbitrary

According to Rosenbloom, judicial review of administrative action is that the courts “provide a check against abuse of administrative discretion and unconstitutional, illegal, irrational, or procedurally irregular decisionmaking and enforcement” (Rosenbloom 2014, 153). Judicial review of administrative action is all about the questions of what (is reviewable), when, and how deeply.

Brief introduction to American judicial system:

Judicial review takes place within federal and state court systems. Federal court system includes general courts, consisting of the Supreme Court (9), Trial courts (89), appellate courts (11); and specialized courts, including Federal Claims, Appeals for the Armed Forces, the Tax Court, Appeals for Veterans Claims, Foreign Intelligence Surveillance Court, International Trade. The district courts are the first judicial level to deal with administrative law cases.

American judicial system is clearly hierarchical. Cases are reviewed from lower to higher authorities.

  1. The authority of Trail Courts (89):
  2. they can rule that an administrative action is legal; b. they can find that the administrative action was illegal or unconstitutional; c. block further enforcement of an administrative rule or order; d. remand cases to the agency for further rulemaking, clarification, or adjudication; e. issue temporary restraining orders to prohibit the continuation of a challenged activity while a trial is held or a final decision reached; f. dismiss a suit

Judges explain the legal and logical basis for their decisions in written opinions. Most federal cases, including administrative law cases, begin and end in the district courts. (Rosenbloon 2014, 155)

  1. The courts of appeals are organized by circuit (11)

Appeals court cases are usually heard by three judges (a hearing en banc). Appeals courts serve as a check on the district courts

  1. The Supreme Court sits at the top of the federal court system, holding the authority of original jurisdiction, where decisions are made by majority vote (a majority of voting subscribe to a single written opinion—it becomes the opinion of the Court; agree on the specific holding but not the reasons, there is a judgment of the Court—written opinion—plurality opinion)
  2. Appointment:

Supreme Court, district, and appeals court judges are appointed by the president with the advice and consent of the Senate

Conclusion 1

The structure and function of American judicial system make the application of both “hard look” and “soft look” sensible in cases. The principle of American judicial system could be interpreted into hierarchy and plurality/majority-decision making, which provide the access to further judge and review by higher authority and apply to the simple logic that decisions made by majority are more reasonable.

  1. The application of the “hard look” and “soft look” is based on reasons rather than authority

“Hard look” application:

  1. The federal courts are apt to apply a hard look to substantive rules:
  2. Industrial Union Department, AFL-CIO v. American Petroleum Institute 1980 OSHA

“OSHA had exceeded its standard-setting authority because it had not been shown that the 1ppm exposure limit was reasonably necessary or appropriate to provide safe and healthful employment and that [the Occupational Safety and Health Act] did not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost.”

Invalidation (hard look):

Three justices: it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Here OSHA did not even attempt to carry such burden of proof.

One justice: OSHA was obliged to explain the method by which it determined that the benefits justified the costs and their economic effects.

Justice William: it provided a “legislative mirage” rather than a constitutionally required “intelligible principle” to guide the agency and reviewing court. Congress should make the important social policy choice of what is feasible in terms of costs and benefits.

Validation (soft look):

Four justices dissented.

  1. Judges are not trained or experienced in the highly complex technical issues linking toxic substances to diseases
  2. The factual issues in making such links sometimes defy definitive resolution
  3. “The ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts”, which is a job for an agency rather than a court.
  4. The federal courts are apt to apply a hard look to agency policy changes:
  5. Federal Communications Commission v. Fox Television Stations
  6. The Supreme Court ruled that the rescission was subject to the same arbitrary and capricious standard of review as would be used in dealing with a new rule.
  7. Motor vehicle manufacturers association of the United States, Inc. v. state farm mutual automobile insurance Co. 1983

NHTSA rescind a passive restraint rule requiring automobiles to be equipped with either automatic seatbelts or air bags.

  1. The most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently give no consideration whatever to modifying the Standard to require that air bag technology be utilized.
  2. The agency’s explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking.

The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. (Rosenbloom 2014, 171)

  1. Discretionary actions on substantial matters tend to receive a hard look
  2. Citizens to Preserve Overton Park, Inc. v. Volpe 1971

Whether the administrator acted within the scope of his or her authority

The decision was within the range of options allowed by the applicable statutes

The relevant factors were considered

The administrator made a clear error of judgment

The necessary procedures were followed

 

Soft look” application:

  1. Rulemaking procedures receive a soft look insofar as they meet the minimum APA or other applicable statutory requirements.
  2. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (1978).

In drafting the APA, “Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed. (Rosenbloon 2014, 173)

  1. If courts continually review agency proceedings to determine whether the agency employed procedures which were perfectly tailored to reach what the court perceives to be the best or correct result, judicial review would be totally unpredictable.
  2. The lower court reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way.
  3. The lower court’s decision fundamentally misconceives the nature of the standard for judicial review of an agency rule.
  1. An agency’s reasoned interpretation of the statutes it administers also receives a soft look
  2. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)

“If courts continually review agency proceedings to determine whether the agency employed procedures which were perfectly tailored to reach what the court perceives to be the best or correct result, judicial review would be totally unpredictable.

The lower court reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way.

The lower court’s decision fundamentally misconceives the nature of the standard for judicial review of an agency rule.” (Funk & Seamon 2011, 275)

  1. City of Arlington, Texas v. Federal Communications Commission

“Judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is jurisdictional or nonjurisdictional.” (Rosenbloom 2014, 174)

  1. An agency’s discretion not to undertake an enforcement action, within constitutional and statutory limits, essentially receives no look
  2. Heckler v. Chaney (1985)

The presumption of nonreviewability did not apply where an agency 1) claims that it lacks enforcement authority, 2) engages in a pattern of nonenforcement of clear statutory language, 3) refuses to enforce a regulation lawfully promulgated and still in effect, and 4) violates constitutional rights through its nonenforcement. (Rosenbloom 2014, 176)

Conclusion II:

In conclusion, the “hard look” is applied in four fields: 1) the federal courts are apt to apply a hard look to substantive rules; 2) the federal courts are apt to apply a hard look to agency policy changes; 3) the Supreme Court ruled that the rescission was subject to the same arbitrary and capricious standard of review as would be used in dealing with a new rule; 4) discretionary actions on substantial matters tend to receive a hard look.

In contrast, the “soft look” is applied in three fields: 1) rulemaking procedures receive a soft look insofar as they meet the minimum APA or other applicable statutory requirements; 2) an agency’s reasoned interpretation of the statutes it administers also receives a soft look; 3) an agency’s discretion not to undertake an enforcement action, within constitutional and statutory limits, essentially receives no look.

In a word, judicial reviews behavior strictly when deal with the regulated and written rules which are enacted by agencies. Judicial reviews take a “soft look” when they deal with the procedures of making rules in executive and legislative levels. American judicial system gives sufficient discretion to Congress and agencies in terms of making rules; however, they take a rigorous look at the end of the rules. Briefly, Congress and agencies use their full knowledge and expertise in making rules with few limitations from judicial system, while they are required to make the best and the most reasonable decisions under the supervision of judicial review in the end. Based on the analysis of the cases, the application of the “hard look” and “soft look” are sensible to me.

Q 2: In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court required the EPA to take action to comply with the Clean Air Act.

Is this a proper role for the courts, or should forcing action be left to Congress, which delegated its legislative authority to the EPA under the act and has control over the agency’s authority and budget?

The EPA, like the FDA, is headed by a presidential appointee. Should the presidential administration have unbridled discretion not to enforce laws?

Is nonenforcement essentially a “political question” even though the Supreme Court did not treat it as one?

To illustrate my point on these questions, I would give a brief introduction to American reviewability requirements, and then distinguish an agency’s decision not to initiate an enforcement action from a denial of a petition for rulemaking (nonenforcement), and finally make my judgment on whether it is a political question or a judicial question:

  1. It is not a proper role for the courts to require EPA’s further enforcement. Judicial review only has the authority to judge whether governmental actions are unconstitutional. Nonenforcement means inaction. The courts don’t have the authority in judging whether inaction unconstitutional.
  2. The presidential administration should not have unbridled discretion not to enforce laws, since governmental actions are supervised by judicial system constitutionally.
  3. Nonenforcement is a “political question”, since 1) enforcement is applied by executive or legislative and sometimes both; 2) the Supreme Court doesn’t have manageable principles to enforce the nonenforcement of an agency; 3) the court will not violate any statutes in Constitution while it applies no look on executive nonenforcement.
  4. Reviewability

Judicial review:

  1. The power to declare governmental actions unconstitutional
  2. Concerns what it is that the courts will review, when, and how

Whether a dispute is judicially reviewable—whether it is a case or controversy suitable for judicial resolution.

The main components of justicialibility

Standing to sue

  1. Injury in fact: concrete and particularized; actual or imminent not conjectural or hypothetical; injury for standing includes: 1) recreational, aesthetic, or environmental injury; 2) risk as injury; 3) fear as injury; 4) procedural injury; 5) informational injury; 6) other widely shared injuries; 7) states as plaintiffs
  2. Causal connection between the injury and the conduct, referring to procedural violations and Causation, third-party actions and causation, contribution as causation.
  3. The injury will likely be redressed by a favorable court decision. (Funk & Seamon 2011, Chpt. 6)

Mootness

A judicial decision will have no practical effect because the specific legal dispute has disappeared or already been resolved in some other way. Therefore, a case is not reviewable if it is moot.

Ripeness

Ripeness focuses on whether the matters involved in a case have developed sufficiently to make it ready for judicial review.

Timing (when)

When judicial review of administrative action should take place, involving the principles of primary jurisdiction, exhaustion of administrative remedies, finality and deference to state courts

  1. Primary jurisdiction is relevant when a case is brought to court that could also be decided by an administrative agency.
  2. The question may involve a matter of law in which the agency has no special expertise; A court may also avoid placing primary jurisdiction with an agency when
  3. Challenged regulation, decision, or action appears completely unreasonable.
  4. The agency may have already ruled on the matter in a case involving other parties. (Rosenbloom 2014, 165)
  5. Exhaustion of administrative remedies guide courts to relieve parties of it at their discretion, when 1) the issue is purely legal, with no factual dispute; 2) the agency lacks the wherewithal to provide the remedy sought or any meaningful one; 3) the agency has clearly exceeded or misused its authority; 4) violations of constitutional procedural due process inhere in the agency’s procedures; 5) the agency is responsible for unreasonable delays; or 6) the only step not exhausted in the agency’s process is an optional one. (Rosenbloom 2014, 167)

Conclusion I:

In the case of Massachusetts v. Environmental Protection Agency (2007), the EPA’s action is inaction. Therefore, the court has no authority to judge it. There is no injured object in the case with EPA’s inaction. The opinion of the court violates the principles of mootness and ripeness. In addition, it is a premature judgment, with EPA not to exercise its authority.

  1. The differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action:

Agency refusals to initiate rulemaking are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation.

Conclusion II:

The distinction between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action is not persuasive, and even farfetched. Both the actions of FDA in the case of Heckler v. Chaney (1985) and EPA are inactions. Therefore, the court’s understanding of these two inactions is subjective. How could the court judge two inactions, giving different answers? However, on the other hand, it reflects the flexibility of American judicial system.

III. Political questions:

  1. The matter is committed by the Constitution’s text to the legislature or executive branch or both
  2. The courts would lack discoverable and manageable standards for resolving the issues
  3. No other provision of the Constitution would be defeated by the judiciary’s refusal to adjudicate the issues

Conclusion III

Obviously, nonenforcement is essentially a “political question”. The court has the authority to judge an action whether it is right or wrong. However, it doesn’t have the authority to judge whether an action should be taken or not.

Part II. One of the most important cases in Administrative Law is Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984) or Chevron for short.

Analyze the standards set by this case for judicial deference to government agencies.

Read the examples of cases decided in the wake of Chevron that is listed in Funk and Seamon.  In your opinion how well does Chevron set the standards for judicial review of regulatory decisions of agencies?

What are some of the possible strengths or weaknesses of the precedent set by this case? 

Remember that in our system of justice we can best understand a case like Chevron by examining how future cases utilize the standards set in the original case of Chevron and apply them to new problems that arise years later. 

I will illustrate my points on this question from two perspectives: 1) the historic meaning of the case Chevron, compared with the case Marbury v. Madison and 2) the strengths or weaknesses brought to American judicial system from the case Chevron.

 

Introduction to case Chevron U.S.A., Inc. v. Natural Resources Defense Council, In.

“In view of the purpose of the nonattainment program to improve, rather than merely maintain, air quality, a plantwide definition was “inappropriate,” while stating it was mandatory in programs designed to maintain existing air quality.” (Funk & Seamon 2011, 275)

  1. Chevron two-step:
  2. “To determine whether the statutory language being interpreted is ambiguous, or whether the meaning of the provision is clear using traditional tools of statutory construction” (Funk & Seamon 2011, 275275). Briefly, to determine whether Congress has directly spoken to the precise question at issue
  3. Meaning of the provision–clear–the court announces the clear meaning of the statute and the court and the agency, must give effect to the unambiguously expressed intent of Congress

Unclear–The Court doesn’t impose its own construction on the statute

  1. Whether the agency’s answer is based on a permissible construction of the statute
  2. Determine whether the agency’s interpretation is reasonable or permissible, or if the interpretation is outside the range of ambiguity in the provision

Agency’s interpretation is reasonable/ permissible—the court upholds the agency’s interpretation

  1. “Soft look” on agencies’ statutory interpretation:

An agency’s reasoned interpretation of the statutes it administers also receives a soft look.

The courts should be deferential to agencies’ statutory interpretation. An initial agency interpretation is not instantly carved in stone but rather is flexible and subject to reasonable change.

  1. If Congress has directly spoken to the precise issue and its intent is clear, the agency has to implement the statute accordingly;
  2. If the court determines that Congress has not clearly addressed the issue, then the question for the court is whether the agency’s is based on a permissible construction of the statute;
  3. The agency’s statutory interpretations will be permissible unless they are arbitrary, capricious, or manifestly contrary to the statute.

Conclusion I:

Marbury v. Madison enhanced judicial power in the separation of powers, where courts were empowered to 1) review the constitutionality of acts of Congress and 2) review the legality of certain acts of executive officials (Funk & Seamon, 2011). In contrast, Chevron bound judicial power reasonably. In my words, Marbury v. Madison reflects self-confidence of American judicial system, while Chevron reflects self-discipline of American judicial system. Both of these two cases contribute to American separation of powers.

The “Chevron two-step” contributes to American democracy and justice. Case law is flexible. “Chevron two-step” adds more reasons to its flexibility. The decisions are not made to be in accordance with the written law/Constitution. Agencies’ decisions are made the good to the society and Americans as a whole. “Chevron two-step” provides executive agencies sufficient space to use expertise to make the best and reasonable rules and respect their decisions to the largest extent.

Conclusion II:

All rules must be in accordance with constitutional and statutory law.

  1. Formal rulemaking–Substantial evidence: reasonable
  2. Informal rulemaking—not arbitrary, capricious, an abuse of discretion, not in accordance with law (Rosenbloom, 2014)

The case enhances the concept of separation of powers and facilitates democracy and justice in the society. However, the provision of “the court doesn’t impose its own construction on the statute” in terms of unclear provision and “the court upholds the agency’s interpretation” which is reasonable/ permissible. The problem is that illegal decision made by unclear provision could be reasonable. In my opinion, unclear provisions are more favorable and preferred for executive and legislative powers. Unclear provisions give them more flexibilities and authorities for the interpretation, where is the beginning of corruption and imbalance of powers.

References:

William F. Funk and Richard H. Seamon. Administrative Law: Examples &       Explanations. Wolters Kluwer Law & Business, New York, 2011

David H. Rosenbloom. Administrative Law for Public Managers. Westview Press, 2014

Advertisements
This entry was posted in Administrative Law and tagged . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s