State University of New York at Buffalo
School of Law

 

 

 

Administrative Law

Prof. Meidinger

 

  

Final Examination

May 5, 1998

 

Instructions

  1. This is a CLOSED BOOK examination. You may not consult any external source of information between the time you receive it and the time you turn it in. You are on your honor and are subject to the rules of the Law School Honor Code.
  2. The exam consists of seven pages of questions and an appendix containing the Administrative Procedure Act, all numbered consecutively and totaling 27 pages. Make sure no pages are missing.
  3. There are 15 short answer questions, each worth 3 to 15 points, for a total of 84.
  4. You have 3 hours to complete the exam.
  5. You should answer each question based solely on the reading materials, lectures, and discussions in the course. When a question calls for a true-false response, you must choose one or the other and circle it. You can then justify or qualify your choice in the explanatory part of your answer.
  6. Answer each question within the space provided. Work out your answer before you start writing. If you are typing or entering your answers on a computer, you need not retype the question. Simply type its number followed by an answer of appropriate content and length.
  7. Good luck!

Questions

  1. To fail the arbitrary and capricious standard an agency must take an action that is so off-the-wall that no rational person would do it. True or false, and why? (5 points)

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  2. An agency which has both rulemaking and adjudication authority is under no constraints in choosing whether to formulate policy through one type of proceeding or the other, except in cases where a substantive or organic statute dictates the procedure to be followed. True or false, and why? (3 points)

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  3. It is permissible for an administrative law judge in a benefits case to be responsible for representing interests of the government, protecting the interests of the claimant, and making a fair decision. True or false, and why? (3 points)

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  4. What is a "legislative" (sometimes called a "substantive") rule? (5 points)

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  5. In deciding whether to find an implied private right of action in a federal regulatory statute a federal court is required to consider whether a state law and enforcement mechanism exist through which the complainant could seek to effectuate her purpose. True of false, and why? (3 points)

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  6. If you were to write the Department of Education requesting that it institute a rulemaking proceeding to set quality standards for Administrative Law courses offered in American Law Schools, it would be completely free to either respond to your request or not. True or false, and why? (3 points)

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  7. Although we discussed the Due Process clause of the Constitution largely in terms of its application to adjudicatory proceedings, it imposes just as powerful a constraint on rule-making. True or false, and why? (3 points)

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  8. When Congress establishes an agency to perform primarily quasi-legislative functions, such as rulemaking, it could constitutionally provide that the head of the agency be appointed by the Speaker of the House of Representatives. True or false, and why? (3 points)

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  9. Although the proceedings described by §553 of the APA are often called "notice-and-comment" rulemakings, only the notice part of the name constitutes a real legal requirement. The "comment" part has no real impact on agency proceedings. True or false, and why? (3 points)

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  10. When an agency changes a policy originally promulgated by rulemaking it must also promulgate that change through rulemaking unless the change clearly reduces the regulatory burden on the public and regulated interests, in which case the agency can act through an interpretive rule or policy statement. True or false, and why? (3 points)

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  11. List the five best arguments you know against allowing reviewing courts to "probe the mind of an administrator" by requiring her to appear in court and testify on why she made the decision she did? (10 points)

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  12. An agency is not required to prepare a cost-benefit analysis as part of a rulemaking proceeding unless a statute specifically mandates it. However, an agency is much more likely to be able to meet the arbitrary and capricious standard on judicial review if it prepares a cost-benefit analysis than if it does not. True or false, and why? (5 points)

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  13. In discussing Overton Park we suggested that the Court's failure to give any deference to the administrator's interpretation of his statutory duty may have reflected the political values of the Court. A better way of understanding the decision, however, is as an institutional mechanism for enforcing Congress' will on the agency. In other words, Congress wrote a law defining the agency's duty, but relied on the Court to enforce it, which the court did. True or false, and why? (10 points)

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  14. The idea that law should govern administrative behavior and the idea that upper level officials and the chief executive should be able to control the behavior of lower level administrators are fundamentally inconsistent. True or false, and why? (10 points)

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  15. The "line item veto" law passed by Congress and signed by President Clinton in 1996 provides in relevant part as follows:

"SEC. 1021. (a) IN GENERAL.-- . . . [S]ubject to the provisions of this part, the President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole--

"(1) any dollar amount of discretionary budget authority;

"(2) any item of new direct spending; or

"(3) any limited tax benefit;

if the President--

"(A) determines that such cancellation will--

"(i) reduce the Federal budget deficit;

"(ii) not impair any essential Government functions; and

"(iii) not harm the national interest; and

"(B) notifies the Congress of such cancellation by transmitting a special message, in accordance with section 1022, within five calendar days (excluding Sundays) after the enactment of the law providing the dollar amount of discretionary budget authority, item of new direct spending, or limited tax benefit that was canceled.

"(b) IDENTIFICATION OF CANCELLATIONS.--In identifying dollar amounts of discretionary budget authority, items of new direct spending, and limited tax benefits for cancellation, the President shall--

"(1) consider the legislative history, construction, and purposes of the law which contains such dollar amounts, items, or benefits;

"(2) consider any specific sources of information referenced in such law or, in the absence of specific sources of information, the best available information; and

"(3) use the definitions contained in section 1026 [mostly having to do with what constitutes an "item"] in applying this part to the specific provisions of such law."

This provision violates the non-delegation doctrine. True or false, and why? (15 points)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

End of Exam