In this new edition, author Steven J. Cann once again enlivens the topic of United States administrative law through the use of recent and “classic” legal cases to make it accessible and interesting to students. Administrative Law, Fourth Edition is an engaging casebook that presents a unique problem-solving framework that contrasts democracy with the administrative state. This novel approach places the often complex subject matter of U.S. administrative law into a more comprehensible context. The Fourth Edition has been completely updated and revised and includes many new cases to reflect changes in the law since the year 2000. Each chapter begins with an interesting case that introduces key concepts followed by a summary of the principles, doctrines, and legal tests used by the courts in ...
- Front Matter
- Back Matter
- Subject Index
Part I: Politics, Democracy, and Bureaucracy
- Chapter 1: Democracy and Bureaucracy
- Chapter 2: Executive Control of Bureaucracy
- Chapter 3: Legislative Control of Bureaucracy
- Chapter 4: Control of Agencies by Default: The Courts and Administrative Law
Part II: The Administrative Process
- Chapter 5: The Government and Information
- Chapter 6: Informal Agency Activity
- Chapter 7: Rule Making and Adjudication
Part III: Substantive Issues in Administrative Law
This book is dedicated to Professors Albert Melone and William McLauchlan, who provided excellent role models at crucial points in my life.
Copyright © 2006 by SAGE Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.
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Library of Congress Cataloging-in-Publication Data
Cann, Steven J.
Administrative law / Steven J. Cann.— 4th ed.
Includes bibliographical references and index.
ISBN 978-1-4129-1396-6 (cloth)
1. Administrative law—United States—Cases. 2. Administrative procedure—United States—Cases. 3. Civil service—United States—Cases. I. Title. KF5402.A4C355 2006
This book is printed on acid-free paper.
08 10 9 8 7 6 5 4 3 2
Acquiring Editor: Al Bruckner
Editorial Assistant: MaryAnn Vail
Production Editor: Diana E. Axelsen
Copy Editor: Jacqueline A. Tasch
Typesetter: C&M Digitals (P) Ltd.
Indexer: David Luljak
Cover Designer: Michelle Lee Kenny
List of Cases[Page xiii]
- Abbott Laboratories v. Gardner, 521
- Adarand v. Pena, 366
- Air Pollution Variance Board v. Western Alfalfa Corporation, 199
- Alden v. Maine, 513, 520
- Allen v. United States, 514
- Allen v. Wright et al., 125, 179, 265, 519
- Ambach v. Norwick, 395
- American Airlines v. Civil Aeronautics Board [CAB], 316
- American Manufacturer's Mutual Insurance Company v. Sullivan, 402, 410–415
- American Power and Light Company v. Securities and Exchange Commission, 109
- American Trucking Association v. EPA, 17, 29
- Association of Data Processing Service Organizations v. Camp, 117, 179
- Aumiller v. University of Delaware, 352
- Barr v. Matteo, 469, 514
- Bd. of Ed. of Independent School District #92 of Pottowatomie C v. Earls, 257
- B E & K Construction Co. v. NLRB, 311
- Bell v. Burson, 453
- Bennett v. Spear, 123, 140
- Bernal v. Fainter, 395
- Bernasconi v. Tempe Elementary School District, 352
- Bubbles v. Oregon Natural Desert Association, 235
- Bi-Metallic Investment Company v. State Board of Equalization, 292
- Bishop v. Wood, 374–376, 520
- Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 469, 471–473, 487, 488, 492
- Blum v. Yaretsky, 401, 409
- BMW of North America, Inc. v. Gore, 447–452
- Board of Commissioners of Bryan County v. Brown, 482
- Board of County Commissioners, Wabaunsee County v. Umbehr, 354, 387–390
- Board of Curators of the University of Missouri v. Horowitz, 427–429, 520
- Board of Education of Oklahoma City Public Schools v. Dowell, 395
- Board of Regents v. Roth, 345–347, 359
- Board of Trustees of the University of Alabama v. Garrett, 513 [Page xiv]
- Bogan v. Scott-Harris, 514
- Booth v. Churner, 180
- Bowen v. American Hospital Association, 116, 179
- Brown v. Board of Education of Topeka, 366, 395, 490
- Burlington Industries v. Ellerth, 371–372
- Burton v. Wilmington Parking Authority, 453
- Bush v. Lucas, 359, 492
- Butz v. Economou, 473–476, 491
- Cafeteria and Restaurant Workers Union v. McElroy, 453
- California Dental Association v. Federal Trade Commission, 155, 169–174, 179
- Camara v. Municipal Court, 184, 199
- Carlson v. Green, 492
- Carter v. Department of Commerce, 288
- Caulker v. Durham, 453
- Cedar Rapids Community School District v. Garret, 302
- Chamber of Commerce v. Occupational Safety and Health Administration, 298
- Chandler v. Miller, 205
- Cheney, Vice President of the United States v. United States District Court for the District of Columbia, 249–257
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 295–298, 299, 521
- Chisholm v. Georgia, 458, 513
- Chrysler v. Brown, 217–221, 300, 306
- Citizens to Preserve Overton Park v. Volpe, 136–137, 153–154, 265
- City of Los Angeles et al. v. Department of Commerce, 288
- City of Los Angeles v. David, 433
- City of Los Angeles v. Lyons, 156–159, 265, 519
- Civil Rights Cases, 289, 364
- Cleveland Board of Education v. Loudermill, 384–387
- Cleveland v. Policy Management Systems, 270, 489
- Clinton v. City of New York, 53–61, 112
- Clinton v. Goldsmith, 179
- Collins v. City of Harker Heights, 521
- Colonnade Catering Corporation v. United States, 184
- Common Cause v. Nuclear Regulatory Commission, 212
- Connecticut Department of Public Safety v. John Doe, 409
- Connick v. Myers, 520
- Correctional Services Corporation v. John E. Malesko, 476, 488, 498–502, 520
- Craig v. Borne, 395
- Dalehite v. United States, 454–456, 461, 513
- Dalton v. Specter, 138, 140
- Daubert v. Merrell Dow Pharmaceuticals, 139
- Davis v. Monroe County Board of Educators, 370
- Decatur v. Paulding, 180
- DeFunis v. Odegaard, 127 [Page xv]
- Department of Commerce v. United States House of Representatives, 263, 277–283, 288, 291
- Department of Defense v. Federal Labor Relations Authority, 234
- Department of Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 258
- Department of the Air Force v. Rose, 235
- The Department of the Army v. Blue Fox, Inc., 457–458
- Deshaney v. Winnebago County Department of Social Services, 505–508
- Dickenson v. Zurko, 310
- Dole v. United Steelworkers of America, 21, 29, 44–47
- Donovan v. Dewey, 204
- Dow Chemical Company v. United States, 199, 237–239
- Duke v. North Texas State University, 352
- Edmonson v. Leesville Concrete Co., 401–402
- Eldridge v. Weinberger, 453
- Environmental Defense Fund [EDF] v. Thomas, 35
- Erie Railroad Company v. Tompkins, 513
- Ewing v. Mytinger and Casselberry, Incorporated, 453
- Ex Parte McCardle, 128
- Faragher v. City of Boca Raton, 371–372
- Federal Crop Insurance Corporation v. Merrill, 267–269, 288
- Federal Deposit Insurance Corporation v. Mallen, 433
- Federal Deposit Insurance Corporation v. Meyer, 514
- Federal Election Commission v. Akins, 125, 159–163
- Federal Maritime Commission v. South Carolina State Ports Authority, 492–498, 520
- Federal Power Commission v. Hope Natural Gas Company, 109
- Federal Trade Commission v. American Tobacco Company, 189–190, 265
- Federal Trade Commission v. Ruberoid Co., 17
- Federation of Federal Employees, Local 1309 v. Department of the Interior et al., 317–321
- Ferguson v. City of Charleston, 200, 205, 239–246
- Field v. Clark, 109
- Flue–Cured Tobacco Cooperative Stabilization Corporation v. the Environmental Protection Agency, 180
- Food and Drug Administration v. Brown and Williamson Corp., 97–103, 108, 115, 291
- Forrester v. White, 514
- Foucha v. Louisiana, 442
- Franklin v. Gwinett Co. Public Schools, 369
- Frantinero v. Richardson, 394
- Fuentes v. Shevin, 453
- Fullilove v. Klutznick, 395
- Gagnon v. Scarpelli, 453
- Gebser v. Lago Vista Independent School District, 370
- Gibson v. Berry hill, 453 [Page xvi]
- Gilbert v. Homar, 359–363, 403–404, 521
- Givhan v. Western Line Consolidated School District, 352
- Goldberg v. Kelly, 396, 398, 416–419, 434
- Gonzalez v. Freeman, 453
- Goss v. Lopez, 424–426, 453
- Gratz v. Bollinger, 395
- Griffin v. Wisconsin, 257
- Griggs v. Duke Power Company, 395
- Grijalva v. Shalala, 400–401, 435–439
- Grutter v. Bollinger, 395
- Hale v. Walsh, 343–344, 348, 461
- Hamdi v. Rumsfeld, 404
- Hampton v. United States, 77–80, 265
- Harris v. Forklift Systems, 370–371
- Heckler v. Campbell, 313, 316, 329–331, 521
- Heckler v. Chaney, 145–148
- Heckler v. Community Health Services, 274–277, 519
- Heckler v. Lopez, 521
- Hicks v. Miranda, 395
- Hornsby v. Allen, 453
- Humphrey's Executor v. United States, 30, 62
- Immigration and Naturalization Service v. Chadha, 92–96
- Immigration and Naturalization Service v. Delgado, 199
- Immigration and Naturalization Service v. Hibi, 288
- Immigration and Naturalization Service v. Lopez-Mendoza, 199
- Immigration and Naturalization Service v. Miranda, 288
- Industrial Union Department AFL-CIO v. American Petroleum Institute (The Benzene Case), 81–86, 108, 521, 522
- Ingraham v. Wright, 430–432, 520
- In Re Federal Trade Commission Line of Business Report, 188
- International Longshoremen's & Warehousemen's Union v. Boyd, 180
- Jackson v. Metropolitan Edison Company, 453 Johnson v. Robison, 128
- Kahn v. Shevin, 395
- Kalina v. Fletcher, 514
- Kansas v. Hendricks, 521
- Katz v. United States, 200
- Kimble v. Machintosh Hemphill Company, 514
- Kimel v. Florida Board of Regents, 491
- Kolstad v. American Dental Association, 514
- Kyllo v. United States, 257
- Lane v. Pena, 457
- Lawrence v. Texas, 404 [Page xvii]
- Lichter v. United States, 109
- Lincoln v. Vigil, 133–135
- Linda R. S. v. Richard D., 179
- Lindsley v. Natural Carbonic Gas Company, 394
- Local 28 Sheet Metal Workers Union v. Equal Employment Opportunity Commission, 395
- Londoner v. City of Denver, 291, 339
- Lorillard v. Reilly, 108
- Lugar v. Edmondson Oil Co., 401
- Lujan v. Defenders of Wildlife, 118–122, 519
- Marquez v. Screen Actors Guild, 144
- Marshall v. Barlow's, Incorporated, 183–184, 195–199, 257, 265
- Massachusetts Board of Retirement v. Murgia, 395
- Mathews v. Eldridge, 359, 396–399, 403, 419–423, 435, 438–439
- McCarthy v. Philadelphia Civil Service Commission, 395
- McMillian v. Monroe County, Alabama, 482
- Meritor Savings Bank v. Vinson, 370
- Michigan v. Tyler, 199
- Miller v. Johnson, 395
- Miller v. Schoene, 453
- Monell v. New York: City Department of Social Services, 477
- Montana v. Kennedy, 288
- Moose Lodge #107 v. Irvis, 453
- Morrison v. Olson, 33, 44, 47–53
- Morrissey v. Brewer, 453
- Morton v. Ruiz, 302–306
- Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Company, 335–339
- Myers v. United States, 30
- Nader v. Allegheny Airlines, Incorporated, 142–144
- National Abortion Federation v. Ashcroft, 257
- National Archives and Records Administration v. Favish, 235, 246–249
- National Broadcasting Company v. United States, 109
- National Collegiate Athletic Association v. Tarkanian, 453
- National Credit Union Administration v. First National Bank & Trust Co., 322–325
- National Labor Relations Board v. Bell Aerospace Company, 315, 325–329, 521
- National Labor Relations Board v. Sears, Roebuck & Company, 222–226
- National Labor Relations Board v. Wyman-Gordon Company, 312, 315
- National Park Hospitality Association v. Department of Interior, 180
- National Parks and Conservation Association v. Morton, 213–215
- National Treasury Employees Union v. Von Raab, 205, 206–210, 257, 520
- Nevin v. United States, 514
- New Jersey v. T.L.O., 199
- New Orleans v. Dukes, 394
- New York v. Burger, 204
- Nguyen and Boulais v. Immigration and Naturalization Service, 514 [Page xviii]
- North American Cold Storage Company v. Chicago, 453
- Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 126, 366
- Northwestern Memorial Hospital v. Ashcroft, 257
- Norton, Secretary of the Interior, v. Southern Utah Wilderness Alliance, 174–179, 265
- Office of Personnel Management v. Charles Richmond, 284–287
- O'Gilvie v. United States, 300
- Oklahoma Press Publishing Company v. Walling, 191–193, 265
- Oncale v. Sundowner Offshore Services, 371
- Owen v. City of Independence, 477–481, 492
- Pacific Gas and Electric v. Federal Power Commission (FPC), 300, 514
- Pacific Mutual Life Insurance Co. v. Haslip, 447, 520
- Palmore v. Sidoti, 366
- Panama Refining Company v. Ryan, 80–81
- Paul v. Davis, 406–408, 520
- Pegram v. Herdrich, 514
- Pembauer v. Cincinnati, 481, 502–505
- Pennsylvania Department of Corrections v. Yeskey, 301
- Pennsylvania State Police v. Nancy Drew Suders, 372, 390–394
- Pennsylvania v. Union Gas Co., 513
- Pickering v. Board of Education, 350–352, 359
- Public Citizen v. Mineta, 61
- Public Lands Council v. Babbitt, 294, 339
- Railway Express Agency v. New York, 394
- Rankin v. McPherson, 354
- Reed v. Reed, 394
- Regents of the University of California v. Bakke, 367
- Regents of the University of Michigan v. Ewing, 429
- Richardson v. McKnight, 488
- Rock Island, Arkansas and Louisiana Railroad Company v. United States, 521
- Rowland v. Mud River School District, 354
- San Francisco Arts and Athletic Inc. v. U.S. Olympic Committee, 453
- Schechter Poultry Corporation v. United States, 81, 309
- Scheuer v. Rhodes, 482–484
- Schweiker v. Hansen, 271
- Securities and Exchange Commission v. Chenery Corporation, 311, 315
- See v. Seattle, 184, 199
- Seminole Tribe of Florida v. Florida, 513, 520
- Shalala v. Guernsey Memorial Hospital, 339
- Shalala v. Illinois Council on Long Term Care, Inc., 179, 434
- Shapiro v. United States, 186–188, 265
- Shaw v. Reno, 395
- Shelley v. Kraemer, 453 [Page xix]
- Simard v. Board of Education, 352
- Simon v. Eastern Kentucky Welfare Rights Organization, 179
- Sims v. Apfel, 310
- Skinner v. Railway Labor Executives' Association, 257
- Smith v. Doe, 453
- Sniadach v. Family Finance Corporation, 453
- State Employee's Retirement System v. Industrial Accident Commission, 149–151
- Steel Company, AKA Chicago Steel and Pickling Co. v. Citizens for a Better Environment (CBE), 113, 179, 265 Superior Oil Company v. Federal Energy Regulatory Commission, 188
- Tennessee Student Assistance Corporation v. Hood, 513
- Tennessee v. Lane, 459, 513
- Tozzi v. U.S. Department of Health and Human Services, 63, 140, 163–168, 180
- Traynor v. Turnage, 129–131
- Troxel v. Granville, 453
- TXO Production Corp. v. Alliance Resources Corp., 447
- United Public Workers v. Mitchell, 180
- United States Department of Justice v. Landano, 235
- United States Department of Justice v. Reporters Committee for Freedom of the Press, 228–234
- United States Department of State v. Ray, 235 United States ex rel. Exarchou v. Murff, 151–152
- United States v. Belmont, 25–26
- United States v. Biswell, 184
- United States v. Chadwick, 200
- United States v. Curtis-Wright Export Corporation, 25–26, 61
- United States v. Florida East Coast Railway Company, 307, 339
- United States v. Gaubert, 464–469, 487, 514
- United States v. Grimoud, 109
- United States v. Haggar, 299
- United States v. Lanier, 488
- United States v. Pennsylvania Industrial Chemical Corporation, 271, 272
- United States v. Storer Broadcasting Company, 313–315, 316, 521
- United States v. Varig Airlines, 463
- United States v. Western Pacific Railroad Company, 180
- United Steel Workers v. Weber, 366, 395
- Verizon v. Public Service Commission of Maryland, 460
- Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, 180, 293, 331–335
- Vernonia School District 47J v. Acton, 199, 257
- Vlandis v. Kline, 453
- Walters v. Metropolitan Educational Enterprises, 290, 339
- Walters v. National Association of Radiation Survivors, 439–442 [Page xx]
- Wards Cove Packing v. Atonio, 395
- Washington v. Davis, 395
- Waters v. Churchill, 376–384, 520
- Webster v. Doe, 180, 265
- West v. Atkins, 453
- West v. Gibson, 457, 508–513
- Whitman v. American Trucking Association, 3, 5, 16, 65–66, 103–108
- Wiener v. United States, 31–33
- Williamson v. Lee Optical Company, 394
- Wisconsin v. Constantineau, 404–406, 453
- Wisconsin v. New York, 180, 263, 288
- Wolff v. McDonnell, 453
- Wood v. Strickland, 484–486
- Wyman v. James, 200–203
- Yakus v. United States, 109, 453
- Yeskey v. Pennsylvania Department of Corrections, 339
- Youngstown Sheet and Tube Co. v. Sawyer (Steel Seizure Case), 27, 61
Preface to the Fourth Edition[Page xxi]
Of the courses I teach, administrative law is the most rewarding. One can readily see the fruits of one's labor as students learn about a subject that so many know so little about—the workings of bureaucracy and administrative law. Student evaluations of the course indicated satisfaction with the subject matter but dissatisfaction with the various texts that I had tried. That dissatisfaction, I believed, stemmed from the fact that many texts were written by lawyers and practitioners without an undergraduate audience in mind. The texts on the market at the time were either law school casebooks or texts with few cases in them. Law school casebooks tend to be underutilized in administrative law courses for undergraduates and master's level courses. I believe in the case method as a pedagogical approach, however, and I thought a casebook could be written that would strike a better balance in terms of the number of cases presented and that would be more student friendly than texts on the market at that time. This text, I believe, has addressed these points and offers several distinguishing features for both students and faculty.Distinguishing Features of This Text
Student-Friendly Conceptual Framework. The book is organized around a conceptual framework that contrasts democracy with the administrative state or “fourth branch of government” (significant policy making by insulated technocrats and bureaucrats), and students are already familiar with the concept of democracy.
Illustrative Cases. Each chapter begins with a scenario, or case in point, presented somewhat polemically, to pique the students' interest. These cases demonstrate an important aspect of the chapter, and often, the student is referred back to the case to illustrate concepts throughout the chapter.
Balance of Cases. Because it has been my experience that cases are an excellent pedagogical device—students enjoy reading them—this text uses cases liberally, more than do most textbooks aimed at an undergraduate or master's level audience. I have tried to find the right balance between too many cases on the one hand and too few on the other (which I find is common in many texts on the market). [Page xxii]More Case Content. In contrast to other texts that use cases, this book also includes more of each case so that students can better grasp what led to the lawsuit and how the Court resolved it. In addition to the introductory case in point, then, the book presents cases throughout each chapter, and chapters end with several more cases relevant to the chapter material. The cases in the middle of chapters tend to be classics or precedent-setting cases, whereas the cases ending each chapter represent more recent decisions on the same points of law.
Summary of Doctrines. Finally, I have included chapter summaries of administrative law doctrines, legal principles, and constitutional tests that students should have gleaned from the cases presented in the chapter and that they should be able to apply to the end-of-chapter cases or to hypothetical cases.
Pedagogical Design. The book is designed to be compatible with a problem-solving pedagogical approach. Questions at the end of cases query students' understanding of doctrines, principles, and constitutional tests and of whether the court applied those doctrines, principles, and tests; modified them; or ignored them. Also, the summary at the end of each chapter is compatible with a pedagogical approach that uses testing by hypothetical cases and requires students to outline.Theoretical Framework
The theoretical framework for this text is the juxtaposition of democracy and the fourth branch of government, the administrative state. Democracy is presented simply as the notion that citizens, either directly or indirectly, ought to have some influence on government policy. Each chapter, however, presents the student with examples of the administrative state—decisions and policies made by unaccountable agencies and based on the expertise of unelected individuals. Delegation of power is presented early in the text so that students become aware of the increasing abdication of congressional responsibility to agencies.
The text further argues that the president often possesses the will to control bureaucracy but lacks the raw power to do so. Congress, on the other hand, possesses the power but, generally, lacks the will to exercise it in controlling agencies. Therefore, almost by default, the task of control of the fourth branch of government falls to the courts. Administrative law is the tool at their disposal.
In the last chapter of the book, the student is asked to analyze whether courts are well-suited to this task and whether, on the whole, courts have been successful. As former Secretary of Labor Robert Reich has indicated, volumes have been written about the inconsistency of judicial review and democracy, but almost nothing has been written about the inconsistency between the administrative state and democracy.Audience
This book was written for undergraduate students in administrative law at the junior or senior level. It would also be appropriate for master's of public administration courses [Page xxiii]because even at the graduate level, a law school casebook is underused. Because the text includes more cases, and more of each case, compared with typical casebooks not intended for law schools, it should be suitable for a number of prelaw courses.Content
Part I of the text consists of four chapters establishing the theoretical context. Chapter 1 combines a description of what agencies do and how they do it with a discussion of democracy. Chapter 2 provides a discussion of the ways in which the president attempts to control bureaucracy, beginning with an analysis of the president's constitutional Article II powers and including an analysis of the presidential appointment and removal powers. Here, the discussion focuses on presidential frustration with appointees and the concept of captivity. Cases are presented and discussed relative to executive removal. The chapter also analyzes other traditional modes of executive control, including a discussion of the concept of the administrative presidency. I argue that although the Constitution fails to provide the president with the raw power necessary to control bureaucracy, Congress has delegated its power to control bureaucracy to the White House staff. Still, whether a given president will use that delegated power depends on the partisanship of the chief executive. The presidential style of Clinton is contrasted with that of Reagan and both Bushes. President Clinton embraced bureaucracy as a policy-making ally whereas his Republican counterparts were hostile to bureaucracy and tried to control agency rule making.
Chapter 3 provides a similar analysis of Congress, demonstrating that Congress clearly possesses the raw power to control agency behavior. However, because of constituency service, “cozy” or “iron” triangles, interest group money and elections, and dependency on agencies for information, Congress generally lacks the will to exercise genuine control over bureaucracy. That is, whereas Congress has little or no incentive to play the watchdog role or to engage in effective oversight, there are many disincentives.
Chapter 4 explores the impediments to judicial control of bureaucracy. It covers the topics of reviewability, exhaustion, primary jurisdiction, ripeness and finality, and standing and concludes with a discussion of the scope of review that courts can apply to different types of agency action.
The administrative process is the subject matter of Part II. Chapter 5 presents a discussion of bureaucracy and information. It analyzes how agencies get information and what they do with it once they have it. Chapter 6 explores informal agency decision making and subsequent judicial review. Chapter 7 provides an analysis of agency rule making and adjudication.
Part III of the text includes three chapters analyzing specific problems of administrative law. The law of public employment, discussed in Chapter 8, begins this section. This chapter offers an analysis of the law of public employment in education. Students will readily grasp the concept of a property interest with tenure as an example. The discussion then extrapolates to public employment more generally. The last part of Chapter 8 deals with discrimination in public employment. Chapter 9 covers due process of law in contexts other than public employment, and Chapter 10 presents the legal liability of government and individual government employees.
The final chapter summarizes the cases and material from the perspective of judicial control of agencies. Finally, students are exposed to modern examples of agency decision [Page xxiv]making that are not inconsistent with the concept of popular control. Agency decision making through the socialization of conflict rather than the privatization of decision making is analyzed.Acknowledgments
This book would not have been possible without the support of and partial funding from Washburn University. Covering the various editions of this book, Washburn has provided both large and small grants that paid for salaries, paper, floppy disks, postage, and other expenses. The university also awarded me sabbatical leaves, which provided the time necessary to complete the initial and subsequent editions of the book. Besides time and money, a third ingredient—the support of others—contributed to the completion of this text. Of support, I had an abundance. My secretary, Cathy Tunnell, typed and edited tirelessly, overcoming a number of obstacles to the task. I received invaluable support from my law student research assistant, Duane Rogers; my undergraduate research assistants, Tim Merchant and Shawn Beatty; my proofreader, Junie Davis; the staff of the Washburn University Law School Library; and the computer center. My colleagues in the Political Science Department provided valuable input and support. Drs. David Freeman, Marvin Heath, Loran Smith, and Mark Peterson provided helpful suggestions, most of which are included in the book. Of course, the final product would not have been possible without the help of my editors at Sage and their editorial staff. Finally, my wife, Rita, not only provided support and understanding but read most of the chapters as they were written. She may never take a class in administrative law, but she agrees that the subject is much more interesting than the usual images of administrative law connote.Highlights of Recent Editions
The third edition (2002) featured expanded discussions of standing to sue administrative agencies, warrantless administrative searches and the special needs doctrine, state action relative to the Fourteenth Amendment's due process and equal protection clauses, invasion of privacy under the Freedom of Information Act, and sexual harassment. New cases included in that edition that are also in the Fourth Edition are Clinton v. City of New York, 1998 (line item veto is unconstitutional), FDA v. Brown & Williamson, 2000 (the Food and Drug Administration is without the jurisdiction to regulate tobacco products), FEC v. Akins, 1998 (an interest group had standing to challenge the Federal Election Commission's decision that another interest group is not a “political committee” and hence does not have to disclose membership, contributions, and expenditures), California Dental Association v. FTC, 1999 (the Federal Trade Commission does have the jurisdiction to regulate nonprofit associations, but the Court of Appeals did not apply a sufficient level of review to the agency's decision finding the dental association engaged in restraint of trade), Ferguson v. City of Charleston, 2001 (warrantless screening of pregnant women's urine by a public entity held not to fall under the special needs doctrine so the searches violate the Fourth Amendment), Department of Commerce v. United States House of Representatives, 2000 (continuing saga of the fight over the counting in the census where the Census Bureau was forbidden to use sampling to conduct the census), Gilbert v. Homar, 1997 (predeprivation hearings restricted to employment termination and not required for employee discipline), [Page xxv]and West v. Gibson, 1999 (the Equal Employment Opportunity Commission's power to impose compensatory damages on other federal agencies for violations of the Civil Rights Act of 1964 held not to violate sovereign immunity).Highlights of the Fourth Edition
The Administrative Presidency. This edition features an expanded discussion of how President George W. Bush achieved the administrative presidency (the ability of the White House to exercise control of agency rule making and other activity). The Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has set up a system that allows consumer-citizens to challenge existing agency rules and allows the OIRA to screen and approve or disapprove of agency-proposed rules. The discussion points out that President Clinton had the same power but lacked the ideology to apply it. There is a discussion about executive manipulation of the laws juxtaposed with the constitutional requirement that the president faithfully execute the laws (can President George W. Bush constitutionally act to dirty the air under the Clean Air Act?). Consequently, OIRA manipulation of agency rules has not been particularly successful in Court. In apparent recognition of this, with the exception of the Environmental Protection Agency (EPA), the OIRA shows greater deference to independent regulatory agencies than to Cabinet agencies.
Guidance Legislation and Congressional Control of Agencies. Congressional attempts to pass legislation that would impose rule-making restraints on all agencies (guidance legislation) ultimately failed, and the failure is chronicled. The status quo is that Congress has delegated the power to manipulate agency rules to OIRA, but that power only extends to certain subject matter (paperwork reduction, small business, major economic impact). The agencies maintain the authority to determine when their rules affect that subject matter. Conservative Republicans are not happy with this state of affairs.
Junk Science. This edition features a discussion about the conflict involving the quality of data that agencies gather and its use in the application of expertise. This discussion appears in both the chapter on the presidency and the chapter on Congress. Congress added a rider on a budget bill that is now referred to as the Data Quality Act; it imposes certain standards and procedures on agencies in terms of their use of information and data. Actually, it delegates the power to impose those things to OIRA. The discussion of junk science spills over into Chapter 4 because there is a real question about whether reports issued by agencies and the data that justify them are reviewable in court. That is because court review of agency action is limited to “final agency action,” and the Supreme Court has yet to decide whether agency reports and agency gathering of data are “final”; the circuit courts are split. The reason that the discussion on the quality of data that agencies gather, use, and disseminate crops up in three chapters is because it goes to the vary essence of the administrative state (policy making based on expertise). The question of who controls the quality of that data, the agencies or the current occupant of the White House, is essential to questions about the democratic character of our system.
[Page xxvi]Freedom of Information Act. The agencies' refusal to release requested information is discussed. The law is quite clear: Agencies will release information unless it is covered by one of the exceptions. By now, there have been enough cases so that court interpretation of the exceptions is also quite clear. It turns out that the president can manipulate agency behavior to favor either release or expanded secrecy by having the attorney general manipulate the standard at which the Justice Department will defend agencies, should they get sued for not releasing requested information.
The Census. The Supreme Court settled the debate over whether the census will be taken by an actual count or by a sampling procedure, and that issue seems to be dead until Democrats control both the presidency and Congress. That has not ended the conflict, however. The Supreme Court and Congress settled the limited issue of taking the census for the purposes of determining how many representatives each state shall have. However, the census is also used to draw district lines for both congressional and state legislative districts and for the distribution of federal funds back to the states. It turns out that the Census Bureau took both an actual count and a sampled count for the 2000 census. The Bush administration refused to release numbers from the sampled census, prompting a Freedom of Information suit and suits to compel the use of sampled figures for both congressional districting and the distribution of federal funds.
Liberty Interests. The Supreme Court has been fairly rigid about not creating new liberty interests under the due process clause, and typically, civil liberties plaintiffs do not fare well before the Court's conservative majority. However, two cases that went “the other way” got attention from the national press. One case is Lawrence v. Texas (2003), where the Court held that the sodomy law of Texas (and presumably of other states as well) violates the right to privacy. The other case was Hamdi v. Rumsfeld (2004), which held that an “enemy combatant” held for more than 2 years by the military after capture in Afghanistan had a due process right to force the government to prove his status as an enemy combatant.
Sovereign Immunity. The Fourth Edition has an expanded discussion of sovereign immunity, especially as it relates to administrative law and the application of the Supreme Court's recent Eleventh Amendment jurisprudence.
The Federal Tort Claims Act and the Discretionary Function Exception. There is expanded discussion on the discretionary function exception and the fact that the Court has narrowed it to the point where there is no longer (if there ever was) a distinction between acts of discretion with policy implications and discretionary acts that simply implement policy.
Ergonomics Regulation. One of the themes of this book is that we should not expect the judicial branch to deliver us from the administrative state. The argument is made that the political branches of government that must periodically stand before us for election should exercise significant control over bureaucratic behavior. As you read the Fourth Edition, you should come to understand that the political branches of American government have enacted about as much control as we shall ever get. The final case-in-point in the summary chapter documents the case of the Occupational Safety and Health Administration (OSHA) and ergonomic regulation. Here, OSHA promulgated one of the most sweeping [Page xxvii]rules in the history of the administrative state. Ultimately, Congress passed a congressional review resolution forbidding the existence of any agency rules in the area of ergonomics. That resolution was presented to President Bush, who enthusiastically signed it into law. Apparently undaunted by the actions of lesser branches of government, OSHA has adopted “voluntary” ergonomic guidelines, conducted thousands of inspections under the auspices of the guidelines, and issued citations for infractions.New Cases in the Fourth Edition
Whitman v. American Trucking Association, 2001. The case involves the EPA's enforcement of the Clean Air Act; it is the Supreme Court's most recent delegation of power case. Indeed, a federal district court found the delegation to be unconstitutional. It is the first case discussed in the text, as the case-in-point for Chapter 1, which is appropriate because it has several administrative law issues that must be resolved.
Tozzi v. Department of Health and Human Services (HHS), 2001. In this case, HHS moved a chemical up from merely being suspected of causing cancer to being a known carcinogen, and it was sued. The plaintiff in the case challenged the science that the agency relied on in changing the chemical's designation, and he also challenged the actual decision as being arbitrary. This is one of the “junk science” cases.
Norton v. Southern Utah Wilderness Alliance, 2004. President Bush's secretary of the interior made a decision to allow off-road vehicles in wilderness areas, and she was sued to compel her to take action to protect wilderness areas from off-road vehicles.
National Archives and Records Administration v. Favish, 2004. Much intrigue and speculation surrounded the apparent suicide of President Clinton's vice counsel, Vincent Foster. The president's attorney was found dead on a park bench in Washington, D.C. Because the park bench was on national park property, the National Park Service investigated the incident. This case involves a Freedom of Information request for certain photographs in the government's possession and, of course, a government refusal to disclose the photographs.
Cheney v. United States District Court, 2004. The Cheney in the case name is, in fact, the vice president of the United States. He was in charge of a planning committee that was to plot an energy policy for the Bush administration. There were charges that private individuals with a stake in the outcome were invited to these meetings (most notably, Ken Lay of Enron). This is not really a Freedom of Information Act case, but it does involve a citizen request for information about the meetings and the vice president's refusal to supply the requested material. The vice president is suing a District Court because the Court ordered him to turn over the material.
Office of Personnel Management v. Richmond, 1990. This is the Supreme Court's most recent estoppel case. A citizen was receiving disability payments. The particular government disability program had an income cap, and the citizen was aware of the existence of a cap but was uncertain as to the exact amount. Presented with an opportunity to work some overtime, he did what most of us would do—he asked the government agency what [Page xxviii]the limit was. He was given incorrect and outdated information, and of course, he lost his disability.
Pennsylvania State Police v. Suders, 2004. This is the Supreme Court's most recent sexual harassment case. Under a certain set of circumstances, an employer can be held liable for sexual harassment committed by an employee. Sometimes, the employer can raise what is called an affirmative defense (e.g., the employer was aware of the possibility of the situation and took reasonable steps to prevent the situation). Where there is “tangible employment action” (the recipient of the harassment is fired, transferred, demoted, etc.), the employer cannot raise an affirmative defense. This case decides whether a constructive discharge (due to the harassment, the employee had no choice but to quit) constitutes “tangible employment action.”
Federal Maritime Commission v. South Carolina State Ports Authority, 2002. This is the Supreme Court's most recent Eleventh Amendment case. A ship company asked a state agency for a berth at the Charleston harbor for a gambling cruise ship. Although the state agency gave berths to other ships that provide gambling when out to sea, it denied this one and gave the reason that gambling violates state public policy. The ship company alleges that this behavior violates a congressional maritime law and brought a complaint to the Federal Maritime Commission for a hearing on the issue. The question is whether the South Carolina Ports Authority is protected by sovereign immunity and the Eleventh Amendment from having to defend itself before a federal agency.
United States v. Gaubert, 1991. This is the Supreme Court's most recent pronouncement on the discretionary function exception in the Federal Tort Claims Act. A federal agency took control of a fiscally healthy financial institution and got involved in the day-to-day management (the plaintiff would say mismanagement) of the institution, and eventually, the institution became insolvent. The plaintiff, who was a principal officer in the institution and lost a substantial amount of money, is suing the agency under the Federal Tort Claims Act. The question is whether the day-to-day management actions of the agency fall under the discretionary function exception of that Act.
Correctional Services Corporation v. Malesko, 2001. Correctional Services Corporation is a private company that contracts with the federal government to run halfway houses (for parolees from prison). An employee's reckless disregard caused the plaintiff to have another heart attack. The plaintiff is suing the company under a Bivins theory (individual federal employees are liable for constitutional torts against citizens). There is no question about whether the company is a “state actor” (a private entity that acts “as though” it is the government); the question is whether a Bivens action can be maintained against a private company acting as a state actor.
Legal Lingo[Page xxix]
Lawyers do not write in common English. Legal writing makes heavy use of Latin and has a unique way of citing references. As a layperson venturing into the legal world, you will need help. There are any number of good, cheap, paperback legal dictionaries on the market, and you should not attempt to take a substantive legal course (constitutional law, administrative law, etc.) without one.
In any case, for those who will begin to read the first chapter of this book prior to obtaining a law dictionary or supplement, it will be helpful to know that legal citations always consist of three essential elements: the volume number, the reference material, and the page number. Some examples are listed below:
1. The citation 440 U.S. 472 (1979) means that you will find a case (National Muffler Dealer's Association, Inc. v. U.S.) in volume 440 of the United States Supreme Court Reports (official reporter of U.S. Supreme Court decisions) on page 472, followed by the year. F.Supp 2d is the reporter for U.S. district court cases, and F.3d is the reporter for U.S. Circuit Court of Appeals cases.
2. 5 U.S.C. 551 means Title 5 of the United States Code (laws of the federal government), Chapter 551 (the Administrative Procedure Act of 1946). U.S.C.A. stands for United States Code Annotated (annotated means that case citations have been included where courts have interpreted the statute).
3. 36 Fed. Reg. 22906 means Volume 36 of the Federal Register (publication of federal agencies' rules and proposed rules) on page 22906. This is a rule requiring passive restraint in autos.
4. 29 C.F.R. 17 means Title 29 of the Code of Federal Regulations, Chapter 17. The Federal Register is sometimes hard to use because it is a weekly publication that informs interested parties of rules, regulations, or standards that nearly all of the federal agencies have promulgated that week, and it also provides notice of proposed rules, regulations, or standards on which the various agencies are about to hold hearings. Hence, it is best used on a weekly basis by those who are regulated by agencies or who have business before an agency to keep up on what the agency is about to do and what it has done. All of these weekly rules are compiled by subject matter in the C.F.R.; so Title 29, for example, deals [Page xxx]with labor, and Chapter 17 is the beginning of 1,600 pages of rules, regulations, and standards adopted by OSHA.
Most cases come to the U.S. Supreme Court through a writ of certiorari (“cert.”), which is a form of appeal allowing the higher court to exercise discretion regarding whether to hear the appeal. If the Court decides to hear the appeal, it will issue a writ of cert. requesting the record from the lower court.
Once the Supreme Court decides a case, it has several options. First, it can affirm the lower court decision, which means the lower court's (or agency's) interpretation and/or decision was correct. Second, it can (but rarely does) overrule a lower federal court; that is, the Court rejects a particular interpretation and, generally, adopts a new interpretation as precedent. Third, the Court can reverse (set aside) a lower court decision. For a federal court or federal agency, the Court could (but again rarely does) reverse the court or agency decision and make the final decision itself. More frequently, however, the Court will reverse a state supreme court, lower federal court, or federal agency decision or interpretation and remand the case to the lower court or agency for a decision not inconsistent with the Supreme Court's interpretation.
Today, students can access legal sources through the Internet. If your college or university subscribes to Lexis or West Law, you can get the full text of the cases in the book as well as access to the Federal Register, the Code of Federal Regulations, and the United States Code. If you do not have access to either of these legal databases, you may find the following Web sites helpful:
For the federal government's Web site: http://firstgov.gov
For the Federal Register, official site: http://www.nara.gov/fedreg/index.html
From this site, you can access the C.F.R., a link to public participation in rule making, and individual agency e-rule-making Web sites.
Appendix A: Administrative Procedure Act[Page 527]
Title 5: Government Organization and Employees
Part I: The Agencies Generally
Chapter 5: Administrative Procedure
Subchapter I: General Provisions
- Section 500 Administrative Practice; General Provisions (omitted)
- 501 Advertising Practice; Restrictions (omitted)
- 502 Administrative Practice; Reserves and National Guard(omitted)
- 503 Witness Fees and Allowances (omitted)
- 504 Costs and Fees of Parties (omitted)
Subchapter II: Administrative Procedure
- Section 551 Definitions (omitted)
- 552 Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings
- 553 Rule Making
- 554 Adjudication
- 555 Ancillary Matters
- 556 Hearings; Presiding Employees; Powers and Duties; Burden of Proof; Evidence; Record as Basis of Decision
- 557 Initial Decisions; Conclusiveness; Review by Agency; Submission by Parties; Contents of Decision, Record
- 558 Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation and Expiration of Licenses
- 559 Effect on Other Laws; Effect of Subsequent Statute
[Page 528]Subchapter III: Negotiated Rule-Making Procedure
- Section 561 Purpose (omitted)
- 562 Definitions (omitted)
- 563 Determination of Need for Negotiated Rule-Making Committee (omitted)
- 564 Publication of Notice; Application for Membership on Committees
- 565 Establishment of Committee
- 566 Conduct of Committee Activity
- 567 Termination of Committee
- 568 Services, Facilities, and Payment of Committee Member Expenses
- 569 Role of the Administrative Conference of the United States and Other Entities
- 570 Judicial Review
Subchapter IV: Alternative Means of Dispute Resolution (omitted)
Chapter 6: Analysis of Regulatory Functions (omitted)
Chapter 7: Judicial Review
- Section 701 Application; Definitions
- 702 Right of Review
- 703 Form and Venue of Proceedings
- 704 Actions Reviewable
- 705 Relief Pending Review
- 706 Scope of Review
Material from Parts II and II of Title 5 relating to administrative law judges has been omitted. If you were to actually use the United States Code Annotated, you would see that Subchapter III is really entitled “The Administrative Conference of the United States” (which has been omitted). There are two Subchapter IVs, one on negotiated rule making and the other on alternative disputes resolution. For simplicity, we have presented the index for you as outlined above.United States Code AnnotatedTitle 5. Government Organization and Employees Chapter—Administrative Procedure§ 552. Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings
- Each agency shall make available to the public information as follows:
- Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
- [Page 529]
- descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
- statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
- rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
- substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
- each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
- Each agency, in accordance with published rules, shall make available for public inspection and copying—
- final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
- those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
- administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. A final order, opinion, statement of policy, [Page 530]interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
- it has been indexed and either made available or published as provided by this paragraph; or
- the party has actual and timely notice of the terms thereof.
- Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
- In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.
- Such agency regulations shall provide that—
- fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;
- fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and
- for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.
- Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
- Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs [Page 531]may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section—
- if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or
- for any request described in clause (ii)(II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication.
- No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.
- Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.
- In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, that the court's review of the matter shall be limited to the record before the agency.
- On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
- Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.
- Repealed. Pub.L. 98–620, Title IV, § 402(2), Nov. 8, 1984, § 98 Stat. 3357
- The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
- Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall [Page 532]promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.
- In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
- Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
- (A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall
- determine within ten days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and
- make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.
- In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request—
- the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
- the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
- the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the [Page 533]determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
- Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.
- This section does not apply to matters that are—
- (A) specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such executive order;
- related solely to the internal personnel rules and practices of an agency;
- specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
- trade secrets and commercial or financial information obtained from a person and privileged or confidential;
- inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
- personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
- records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for [Page 534]law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
- contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
- geological and geophysical information and data, including maps, concerning wells. Any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
- (c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—
- the investigation or proceeding involves a possible violation of criminal law; and
- there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.
- Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.
- Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.
- This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
- On or before March 1 of each calendar year, each agency shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include—
- the number of determinations made by such agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;
- the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information;[Page 535]
- the names and titles or positions of each person responsible for the denial of records requested under this section, and the number of instances of participation for each;
- the results of each proceeding conducted pursuant to subsection (a)(4)(F), including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;
- a copy of every rule made by such agency regarding this section;
- a copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section; and
- such other information as indicates efforts to administer fully this section.
The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subsections (a)(4)(E), (F), and (G). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.
§ 553. Rule Making
- For purposes of this section, the term “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.
- This section applies, according to the provisions thereof, except to the extent that there is involved—
- a military or foreign affairs function of the United States; or
- a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
- General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—
- a statement of the time, place, and nature of public rule-making proceedings;
- reference to the legal authority under which the rule is proposed; and
- either the terms or substance of the proposed rule or a description of the subjects and issues involved.
Except when notice or hearing is required by statute, this subsection does not apply—
§ 554. Adjudication
- to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or[Page 536]
- when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
- After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
- The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—
- a substantive rule which grants or recognizes an exemption or relieves a restriction;
- interpretative rules and statements of policy; or
- as otherwise provided by the agency for good cause found and published with the rule.
- Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
- This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved—
- a matter subject to a subsequent trial of the law and the facts de novo in a court;
- the selection or tenure of an employee, except an administrative law judge appointed under section 3105 of this title;
- proceedings in which decisions rest solely on inspections, tests, or elections;
- the conduct of military or foreign affairs functions;
- cases in which an agency is acting as an agent for a court; or
- the certification of worker representatives.
- Persons entitled to notice of an agency hearing shall be timely informed of—
- the time, place, and nature of the hearing;
- the legal authority and jurisdiction under which the hearing is to be held; and
- the matters of fact and law asserted.
When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may [Page 537]by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.
- The agency shall give all interested parties opportunity for—
- the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and
- to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.
- The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not—
- consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
- be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply—
§ 555. Ancillary Matters
- in determining applications for initial licenses;
- to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or
- to the agency or a member or members of the body comprising the agency.
- The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.
§ 556. Hearings; Presiding Employees; Powers and Duties; Burden of Proof; Evidence; Record as Basis of Decision
- This section applies, according to the provisions thereof, except as otherwise provided by this subchapter.
- A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may [Page 538]appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.
- Process, requirement of a report, inspection, or other investigative act or demand may not be issued, made, or enforced except as authorized by law. A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.
- Agency subpoenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought. On contest, the court shall sustain the subpoena or similar process or demand to the extent that it is found to be in accordance with law. In a proceeding for enforcement, the court shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply.
- Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.
- This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.
- There shall preside at the taking of evidence—
- the agency;
- one or more members of the body which comprises the agency; or
- one or more administrative law judges appointed under section 3105 of this title.
This subchapter does not supersede the conduct of specified classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in [Page 539]good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.
§ 557. Initial Decisions; Conclusiveness; Review by Agency; Submissions by Parties; Contents of Decisions; Record
- Subject to published rules of the agency and within its powers, employees presiding at hearings may—
- administer oaths and affirmations;
- issue subpoenas authorized by law;
- rule on offers of proof and receive relevant evidence;
- take depositions or have depositions taken when the ends of justice would be served;
- regulate the course of the hearing;
- hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter;
- inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods;
- require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy;
- dispose of procedural requests or similar matters;
- make or recommend decisions in accordance with section 557 of this title; and
- take other action authorized by agency rule consistent with this subchapter.
- Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.
- The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made [Page 540]available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.
- This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title.
- When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in rule making or determining applications for initial licenses—
- instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or
- this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires.
- Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—
- proposed findings and conclusions; or
- exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and
- supporting reasons for the exceptions or proposed findings or conclusions.
The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—
- findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and
- the appropriate rule, order, sanction, relief, or denial thereof.
§ 558. Imposition of Sanctions; Determination of Applications for Licenses; Suspension, Revocation and Expiration of Licenses
- (d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—
- no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;
- no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;
- a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
- all such written communications;
- memoranda stating the substance of all such oral communications; and
- all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;
- upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and
- the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.
- This subsection does not constitute authority to withhold information from Congress.
- This section applies, according to the provisions thereof, to the exercise of a power or authority.[Page 542]
- A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.
- When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—
- notice by the agency in writing of the facts or conduct which may warrant the action; and
- opportunity to demonstrate or achieve compliance with all lawful requirements.
When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.§ 559. Effect on Other Laws; Effect of Subsequent Statute
This subchapter, Chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, do not limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons. Each agency is granted the authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise. Subsequent statute may not be held to supersede or modify this subchapter, Chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or the provisions of section 5335(a)(B) of this title that relate to administrative law judges, except to the extent that it does so expressly.Title 5. Government Organization and EmployeesPart I—The Agencies Generally: Chapter 5—ADministrative Procedure: Subchapter III—Negotiated Rule-Making Procedure§ 564. Publication of Notice; Application for Membership on Committees
§ 565. Establishment of Committee
- Publication of notice.—If, after considering the report of a convener or conducting its own assessment, an agency decides to establish a negotiated rule-making committee, the agency shall publish in the Federal Register and, as appropriate, in trade or other specialized publications, a notice which shall include—
- an announcement that the agency intends to establish a negotiated rule-making committee to negotiate and develop a proposed rule;[Page 543]
- a description of the subject and scope of the rule to be developed, and the issues to be considered;
- a list of the interests which are likely to be significantly affected by the rule;
- a list of the persons proposed to represent such interests and the person or persons proposed to represent the agency;
- a proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of a proposed rule for notice and comment;
- a description of administrative support for the committee to be provided by the agency, including technical assistance;
- a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rule-making committee; and
- an explanation of how a person may apply or nominate another person for membership on the committee, as provided under subsection (b).
- [Page 543]
- Applications for membership or committee.—Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person specified in a notice under subsection (a)(4) may apply for, or nominate another person for, membership on the negotiated rule-making committee to represent such interests with respect to the proposed rule. Each application or nomination shall include—
- the name of the applicant or nominee and a description of the interests such person shall represent;
- evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent;
- a written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration; and
- the reasons that the persons specified in the notice under subsection (a)(4) do not adequately represent the interests of the person submitting the application or nomination.
- Period for submission of comments and applications.—The agency shall provide for a period of at least 30 calendar days for the submission of comments and applications under this section.
§ 566. Conduct of Committee Activity
- Determination to establish committee.—If after considering comments and applications submitted under section 564, the agency determines that a negotiated rule-making committee can adequately represent the interests that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rule-making, the agency may establish a negotiated rule-making committee. In establishing and administering such a committee, the agency [Page 544]shall comply with the Federal Advisory Committee Act with respect to such committee, except as otherwise provided in this subchapter.
- Determination not to establish committee.—If after considering such comments and applications, the agency decides not to establish a negotiated rule-making committee, the agency shall promptly publish notice of such decision and the reasons therefor in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for, membership on the negotiated rule-making committee to represent such interests with respect to the proposed rule.
- Membership.—The agency shall limit membership on a negotiated rule-making committee to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. Each committee shall include at least one person representing the agency.
- Administrative Support.—The agency shall provide appropriate administrative support to the negotiated rule-making committee, including technical assistance.
§ 567. Termination of Committee
- Duties of Committee.—Each negotiated rule-making committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.
- Representatives of Agency on Committee.—The person or persons representing the agency on a negotiated rule-making committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
- Selecting Facilitator.—Notwithstanding section 10(e) of the Federal Advisory Committee Act, an agency may nominate either a person from the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee.
- Duties of Facilitator.—A facilitator approved or selected by a negotiated rule-making committee shall—
- chair the meetings of the committee in an impartial manner;
- impartially assist the members of the committee in conducting discussions and negotiations; and[Page 545]
- manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title.
- Committee Procedures.—A negotiated rule-making committee established under this subchapter may adopt procedures for the operation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rule-making committee.
- Report of Committee.—If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations, or materials.
- Records of Committee.—In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 10(b) and (c) of the Federal Advisory Committee Act.
A negotiated rule-making committee shall terminate upon promulgation of the final rule under consideration, unless the committee's charter contains an earlier termination date or the agency, after consulting the committee, or the committee itself specifies an earlier termination date.§ 568. Services, Facilities, and Payment of Committee Member Expenses
§ 569. Role of the Administrative Conference of the United States and Other Entities
- Services of Conveners and Facilitators.—
- In general.—An agency may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for a negotiated rulemaking committee under this subchapter, or may use the services of a Government employee to act as a convener or a facilitator for such a committee.
- Determination of conflicting interests.—An agency shall determine whether a person under consideration to serve as convener or facilitator of a committee under paragraph (1) has any financial or other interest that would preclude such person from serving in an impartial and independent manner.
- Services and Facilities of Other Entities.—For purposes of this subchapter, an agency may use the services and facilities of other Federal agencies and public and private agencies and instrumentalities with the consent of such agencies and instrumentalities, [Page 546]and with or without reimbursement to such agencies and instrumentalities, and may accept voluntary and uncompensated services without regard to the provisions of section 1342 of title 31. The Federal Mediation and Conciliation Service may provide services and facilities, with or without reimbursement, to assist agencies under this subchapter, including furnishing conveners, facilitators, and training in negotiated rule making.
- Expenses of Committee Members.—Members of a negotiated rule-making committee shall be responsible for their own expenses of participation in such committee, except that an agency may, in accordance with section 7(d) of the Federal Advisory Committee Act, pay for a member's reasonable travel and per diem expenses, expenses to obtain technical assistance, and a reasonable rate of compensation, if—
- such member certifies a lack of adequate financial resources to participate in the committee; and
- the agency determines that such member's participation in the committee is necessary to assure an adequate representation of the member's interest.
- Status of Member as Federal Employee.—A member's receipt of funds under this section or section 569 shall not conclusively determine for purposes of sections 202 through 209 of title 18 whether that member is an employee of the United States Government.
- Consultation by Agencies.—An agency may consult with the Administrative Conference of the United States or other public or private individuals or organizations for information and assistance in forming a negotiated rule-making committee and conducting negotiations on a proposed rule.
- Roster of Potential Conveners and Facilitators.—The Administrative Conference of the United States, in consultation with the Federal Mediation and Conciliation Service, shall maintain a roster of individuals who have acted as or are interested in serving as conveners or facilitators in negotiated rule-making proceedings. The roster shall include individuals from government agencies and private groups, and shall be made available upon request. Agencies may also use rosters maintained by other public or private individuals or organizations.
- Procedures to Obtain Conveners and Facilitators.—
- Procedures.—The Administrative Conference of the United States shall develop procedures which permit agencies to obtain the services of conveners and facilitators on an expedited basis.
- Payment for services.—Payment for the services of conveners or facilitators shall be made by the agency using the services, unless the Chairman of the Administrative Conference agrees to pay for such services under subsection (f).
- Compilation of Data on Negotiated Rule-making; Report to Congress.—
- Compilation of data.—The Administrative Conference of the United States shall compile and maintain data related to negotiated rule-making and shall act as a clearinghouse to assist agencies and parties participating in negotiated rulemaking proceedings.
- Submission of information by agencies.—Each agency engaged in negotiated rule-making shall provide to the Administrative Conference of the United States a copy of any reports submitted to the agency by negotiated rule-making committees under section 566 and such additional information as necessary to enable the Administrative Conference of the United States to comply with this subsection.
- Reports to congress.—The Administrative Conference of the United States shall review and analyze the reports and information received under this subsection and shall transmit a biennial report to the Committee on Governmental Affairs of the Senate and the appropriate committees of the House of Representatives that—
- provides recommendations for effective use by agencies of negotiated rule making; and
- describes the nature and amounts of expenditures made by the Administrative Conference of the United States to accomplish the purposes of this subchapter.
- Training in Negotiated Rule Making.—The Administrative Conference of the United States is authorized to provide training in negotiated rule-making techniques and procedures for personnel of the Federal Government either on a reimbursable or nonreimbursable basis. Such training may be extended to private individuals on a reimbursable basis.
- Payment of Expenses of Agencies.—The Chairman of the Administrative Conference of the United States is authorized to pay, upon request of an agency, all or part of the expenses of establishing a negotiated rule-making committee and conducting a negotiated rule making. Such expenses may include, but are not limited to—
- the costs of conveners and facilitators;
- the expenses of committee members determined by the agency to be eligible for assistance under section 568(c); and
- training costs.
Determinations with respect to payments under this section shall be at the discretion of such Chairman in furthering the use by Federal agencies of negotiated rule making.
- Use of Funds of the Conference.—The Administrative Conference of the United States may apply funds received under section 595(c)(12) of this title to carry out the purposes of this subchapter.
[Page 548]§ 570. Judicial Review
Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule which is the product of negotiated rule making and is subject to judicial review shall not be accorded any greater deference by a court than a rule which is the product of other rule-making procedures.Title 5.Government Organization and Employees: Part I—The Agencies Generally: Chapter 7—Judicial Review§ 701. Application; Definitions
- This chapter applies, according to the provisions thereof, except to the extent that—
- statutes preclude judicial review; or
- agency action is committed to agency discretion by law.
- For the purpose of this chapter—
- “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—
- the Congress;
- the courts of the United States;
- the governments of the territories or possessions of the United States;
- the government of the District of Columbia;
- agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
- court martial and military commissions;
- military authority exercised in the field in time of war or in occupied territory; or
- functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; Chapter 2 of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix; and
- “person,” “rule,” “order,” “license,” “sanction,” “relief,” and “agency action” have the meanings given them by section 551 of this title.
[Page 549]§ 702. Right of Review
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.§ 703. Form and Venue of Proceeding
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.§ 704. Actions Reviewable
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency.§ 705. Relief Pending Review
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to [Page 550]which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.§ 706. Scope of Review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
- compel agency action unlawfully withheld or unreasonably delayed; and
- hold unlawful and set aside agency action, findings, and conclusions found to be—
- arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
- contrary to constitutional right, power, privilege, or immunity;
- in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
- without observance of procedure required by law;
- unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
- unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
Appendix B: The United States Constitution[Page 551]
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.Article I.Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.Section 2
Clause 1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
Clause 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (See Note 2) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire [Page 552]shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
Clause 4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.Section 3
Clause 1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, (See Note 3) for six Years; and each Senator shall have one Vote.
Clause 2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. (See Note 4)
Clause 3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Clause 5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.Section 4
Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Clause 2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, (See Note 5) unless they shall by Law appoint a different Day.[Page 553]Section 5
Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Clause 3: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Clause 4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.Section 6
Clause 1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. (See Note 6) They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Clause 2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.Section 7
Clause 1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Clause 2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.[Page 554]
Clause 3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.Section 8
Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Clause 2: To borrow Money on the credit of the United States;
Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Clause 7: To establish Post Offices and post Roads;
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Clause 9: To constitute Tribunals inferior to the supreme Court;
Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And[Page 555]
Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.Section 9
Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Clause 3: No Bill of Attainder or ex post facto Law shall be passed.
Clause 4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. (See Note 7)
Clause 5: No Tax or Duty shall be laid on Articles exported from any State.
Clause 6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
Clause 8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.Section 10
Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Clause 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.Article IISection 1
Clause 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
[Page 556]Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Clause 3: The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. (See Note 8)
Clause 4: The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Clause 5: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Clause 6: In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, (See Note 9) the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Clause 7: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”Section 2
Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each [Page 557]of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.Article IIISection 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.Section 2
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; (See Note 10)—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of [Page 558]different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.Section 3
Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.Article IVSection 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.Section 2
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (See Note 11)Section 3
Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.[Page 559]
Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.Article VI
Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.Article VII
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,
[Page 560]GO WASHINGTON—Presidt. and deputy from Virginia
[Signed also by the deputies of twelve States.]
- George Read
- Gunning Bedford Jr.
- John Dickinson
- Richard Bassett
- Jacob Broom
- James McHenry
- Dan of ST Tho. Jenifer
- DanL Carroll.
- John Blair
- James Madison Jr.
- William Blount
- Richard Dobbs Spaight
- Hugh Williamson
- John Rutledge
- Charles Cotesworth Pinckney
- Charles Pinckney
- Pierce Butler
- William Few
- Abraham Baldwin
- John Langdon
- Nicholas Gilman
- Nathaniel Gorham
- Rufus King
- William Samuel Johnson
- Roger Sherman
- Alexander Hamilton
- William Livingston
- David Brearley.
- William Paterson
- Jonathan Dayton
[Page 561]Amendments to the Constitution
- Benjamin Franklin
- Thomas Mifflin
- Robert Morris
- George Clymer
- Thomas FitzSimons
- Jared Ingersoll
- James Wilson
- Gouverneur Morris
- Attest William Jackson Secretary
- The Constitution was ratified on June 21, 1788.
The first ten amendments were ratified on December 15, 1791.Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[Page 562]Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Amendment XI (Ratified February 7, 1795)
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.Amendment XII (Ratified June 15, 1804)
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. (See Note 14)—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.Amendment XIII (Ratified December 6, 1865)
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.[Page 563]Amendment XIV (Ratified July 9, 1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, (See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.Amendment XV (Ratified February 3, 1870)
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.Amendment XVI (Ratified February 3, 1913)
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.Amendment XVII (Ratified April 8, 1913)
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The [Page 564]electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.Amendment XVIII (Ratified January 16, 1919)
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.Amendment XIX (Ratified August 18, 1920)
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.Amendment XX (Ratified January 23, 1933)
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
[Page 565]Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this Article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.Amendment XXI (Ratified December 5, 1933)
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.Amendment XXII (Ratified February 27, 1951)
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.Amendment XXIII (Ratified March 29, 1961)
Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.Amendment XXIV (Ratified January 23, 1964)
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for [Page 566]Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.Amendment XXV (Ratified February 10, 1967)
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.Amendment XXVI (Ratified July 1, 1971)
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.Amendment XXVII (Ratified May 7, 1992)
No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.
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- Section 500 Administrative Practice; General Provisions (omitted)