Administrative Rulemaking
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The General Trends of EU Administrative Law
The General Trends of EU Administrative Law JAN KLUCKA* I. General Introduction The creation of European Administrative Law (hereinafter "EAL") results from interac- tions between the European legal order and those of the EU Member States., Indeed, the EU has created a legal order in permitting mutual influences between national and EALs. This cross-fertilization process has led to the approximation of the applicable administra- tive legal rules and principles that make up EAL. According to Susana de la Sierra, "European Administrative Law is the final step of a process, where various legal orders interact and produce principles or norms of general 2 application in the territories where those legal orders apply." Its inherent feature is its dynamic character in that it is influenced by its reciprocal interactions with the national legal orders. In line with these influences, one can also observe the increasing amount of 3 mixed administrative proceedings. Those proceedings demonstrate the willingness of the EU to maintain and use the national legal rules and structures, instead of absorbing them. Another important aim of EAL is to strengthen the rights enjoyed by individuals vis-a- vis administrative authorities. There is a general trend, both in the Member States and in the European Community (the "Community"), to focus on the relationship between the 4 citizen and the administration and to assert rights of the latter vis-5-vis the former. Judge, European Court of Justice. This article was written as part of a symposium following a summit between the Supreme Court of the United States and the European Court of Justice organized by the SMU Dedman School of Law. -
Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen. -
Informal Rulemaking by Settlement Agreement
Informal Rulemaking by Settlement Agreement JEFFREY M. GABA* The process of informal rulemaking by the federal government is familiar. Af- ter determining that a regulation is necessary, a government agency prepares a proposal which it publishes for public comment. The agency then reviews the comments, decides on the content of the final rule, and publishes the final rule with a statement of basis and purpose explaining its decision. The rule is gener- ally effective thirty days after publication, and the public is blessed with one more government regulation.1 Although the description of this process is familiar, it may be incomplete. If the experience of the Environmental Protection Agency (EPA) is a guide,2 pro- mulgation of regulations pursuant to the notice and comment procedure is merely one step of rulemaking. In many cases, development of these "final" * Assistant Professor of Law, Southern Methodist University. B.A. 1972, University of California, Santa Barbara; J.D. 1976, Columbia University. Attorney, Office of General Counsel, U.S. Environmen- tal Protection Agency, 1977-1981. The author would like to express his appreciation to Southern Meth- odist University for providing financial assistance for preparation of this article. The author would also like to thank the people, both at the EPA and in private practice, who devoted time to discuss their experiences with and insights into the settlement process. Finally, the author would like to express his appreciation to Ms. Rosemary Marek for assistance and support in preparing this article. 1. Administrative Procedure Act § 4, 5 U.S.C. § 553 (1982); see infra notes 85 to 90 and accompanying text (discussing Act's requirements). -
EU Agencies, Common Approach and Parliamentary Scrutiny
EU Agencies, Common Approach and Parliamentary Scrutiny European Implementation Assessment STUDY EPRS | European Parliamentary Research Service Editor: Ron Korver Ex-Post Evaluation Unit PE 627.131 – November 2018 EN EU Agencies, Common Approach and Parliamentary Scrutiny Study Decentralised agencies were set up on a case-by-case basis over the years, to respond to emerging individual policy needs. Currently there are 36 of them and they have been operating under very diverse conditions. In 2012, the European Parliament, the Council of the European Union and the European Commission sought to rectify this by adopting a ‘Joint Statement’ and a comprehensive set of guiding principles – a ‘Common Approach’ – to make the agencies more coherent, effective and accountable. In the light of an expected revision of these guiding principles, the European Parliament’s Committee on Constitutional Affairs (AFCO) will produce an implementation report on the functioning of decentralised European agencies. The letter to the Conference of Committee Chairs (CCC) was sent on 11 April and the Conference of Presidents endorsed the request on 31 May 2018. In this framework, the Ex-Post Evaluation Unit (EVAL) provides expertise on the implementation of the agreed guidelines in the form of a European implementation assessment (EIA). This EIA was drawn up by Professor Ellen Vos of Maastricht University, at the request of the Ex-post Evaluation Unit of EPRS. It provides an overview of the different decentralised EU agencies according to a number of criteria; including their functions, legal bases, sources of financing, respective roles of Parliament, Council, Commission and Member States, stakeholder involvement and transparency. -
Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument William K
Notre Dame Law Review Volume 92 | Issue 5 Article 9 5-2017 Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument William K. Kelley Notre Dame Law School Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Judges Commons Recommended Citation 92 Notre Dame L. Rev. 2107 (2017) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\92-5\NDL509.txt unknown Seq: 1 15-JUN-17 10:42 JUSTICE SCALIA, THE NONDELEGATION DOCTRINE, AND CONSTITUTIONAL ARGUMENT William K. Kelley* INTRODUCTION Justice Antonin Scalia wrote two major opinions applying the nondelega- tion doctrine: in Mistretta v. United States,1 he wrote a lone dissent concluding that Congress’s establishment of the United States Sentencing Commission was unconstitutional because the Commission had been assigned no function by Congress other than the making of rules, the Sentencing Guidelines. Such “pure” lawmaking by a “junior-varsity Congress,” Justice Scalia con- cluded, was inconsistent with the Constitution’s basic division of powers.2 In Whitman v. American Trucking Ass’ns,3 he wrote for a unanimous Court upholding a very broad delegation of rulemaking power to the Environmen- tal Protection Agency (EPA), and along the way acknowledged that Con- gress’s power to assign policymaking discretion to agencies extended to raw exercises of discretion from among a range of possibilities that was appar- ently genuinely unlimited. -
Faithful Execution: Where Administrative Law Meets the Constitution
ARTICLES Faithful Execution: Where Administrative Law Meets the Constitution EVAN D. BERNICK* The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, fed- eral courts have been forced to confront important constitutional ques- tions concerning the President's exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations? This Article argues that the Take Care Clause of Article II, Section 3 constrains the President's administrative discretion and that judges are obliged to determine whether that discretion has been ªfaithfullyº exercised. It then constructs a faithful execution framework that judges can use to implement the ªletterºÐthe textÐand the ªspiritºÐthe functionsÐof the Take Care Clause. To that end, it makes use of a theory of ®duciary government that informed the content and structure of the Take Care Clause and draws upon well-established administra- tive law doctrines. It uses the faithful execution framework to evaluate President Barack Obama's 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump's 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitu- tionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism. -
Notice of Proposed Rulemaking (NPRM)
43162 Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Proposed Rules PART 39—AIRWORTHINESS AD. Send your proposal to: Matt Fuller, address: Federal Trade Commission, DIRECTIVES Senior Aviation Safety Engineer, Safety Office of the Secretary, 600 Management Section, Rotorcraft Standards Pennsylvania Avenue NW, Suite CC– ■ 1. The authority citation for part 39 Branch, FAA, 10101 Hillwood Pkwy., Fort 5610 (Annex C), Washington, DC 20580, continues to read as follows: Worth, TX 76177; telephone 817–222–5110; email [email protected]. or deliver your comment to the Authority: 49 U.S.C. 106(g), 40113, 44701. (2) For operations conducted under a 14 following address: Federal Trade CFR part 119 operating certificate or under Commission, Office of the Secretary, § 39.13 [Amended] 14 CFR part 91, subpart K, the FAA suggests Constitution Center, 400 7th Street SW, ■ 2. The FAA amends § 39.13 by adding that you notify your principal inspector, or 5th Floor, Suite 5610 (Annex C), the following new airworthiness lacking a principal inspector, the manager of Washington, DC 20024. directive (AD): the local flight standards district office or FOR FURTHER INFORMATION CONTACT: certificate holding district office before Julia Airbus Helicopters: Docket No. FAA– Solomon Ensor (202–326–2377) or 2020–0652; Product Identifier 2019–SW– operating any aircraft complying with this AD through an AMOC. Hampton Newsome (202–326–2889), 066–AD. Attorneys, Division of Enforcement, (a) Applicability (g) Additional Information Bureau of Consumer Protection, Federal This AD applies to Airbus Helicopters The subject of this AD is addressed in Trade Commission, Room CC–9528, 600 Model AS332C, AS332C1, AS332L, and European Union Aviation Safety Agency Pennsylvania Avenue NW, Washington, AS332L1 helicopters, certificated in any (previously European Aviation Safety DC 20580. -
Rulemaking Cooperation Guidelines for the FAA and the EASA
Rulemaking Cooperation Guidelines for the Federal Aviation Administration and the European Aviation Safety Agency Background: The Agreement between the United States of America and the European Union on cooperation in the regulation of civil aviation safety (the “Agreement”) requires that the Federal Aviation Administration (“FAA”) and the European Aviation Safety Agency (“EASA”) develop and adopt procedures for regulatory cooperation in civil aviation safety and environmental testing and approvals. The FAA and EASA (the “Participants”) have determined that they should actively promote mutual rulemaking cooperation to maintain and further improve the harmonisation of their rules within the scope of Articles 2.B and 6 of the Agreement. The Participants understand that harmonisation can best be achieved through effective communication during the definition and early stages of implementation of their respective rulemaking programmes. They also believe they should make the best use of scarce available resources to produce rules, and that cooperation in this field can be furthered without affecting their independence when deciding on the final rules they best see fit to fulfil their statutory obligations. Therefore, these Guidelines are not intended to create binding obligations under international law. Additionally, no provision of this document should be construed to impair the authority of the FAA or EASA to develop and promulgate aviation regulations within the limits of their enabling legislation and regulations. Page 1 of 7 I. Objectives 1) These Guidelines establish the process through which the FAA and EASA intend to promote rulemaking co-operation in the early stages of the rulemaking process. 2) The objectives of this rulemaking cooperation arrangement are to: i. -
Binding the Enforcers: the Administrative Law Struggle Behind President Obama's Immigration Actions
KAGAN 502.DOC (DO NOT DELETE) 1/5/2016 10:41 AM BINDING THE ENFORCERS: THE ADMINISTRATIVE LAW STRUGGLE BEHIND PRESIDENT OBAMA‘S IMMIGRATION ACTIONS Michael Kagan * INTRODUCTION President Obama has made executive action and prosecutorial discretion his signature contributions to immigration policy. His aim has been to focus enforcement against immigrants caught at the border or with criminal records while easing the path toward integration for others.1 These actions—a collection of policies that use discretion to improve the legal standing of millions of unau- thorized immigrants or at least shield them from arrest and de- portation—may benefit as many as 87% of the unauthorized im- migrants in the United States.2 The most important of these * Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law. B.A., Northwestern University; J.D., University of Michigan Law School. This ar- ticle benefited from insights and feedback from Jill E. Family, Hiroshi Motomura, and Da- vid Rubenstein. All errors are mine. 1. See generally Michael Kagan, A Taxonomy of Discretion: Refining the Legality De- bate About Obama’s Executive Actions on Immigration, 92 WASH. U. L. REV. 1083 (2015) (describing President Obama‘s immigration policy reforms); Jerry Markon, Obama Admin- istration Scales Back Deportations in Policy Shift, WASH. POST (July 2, 2015), https: //www.washingtonpost.com/politics/dhs-scales-back-deportations-aims-to-integrate-illegal- immigrants-into-society/2015/07/02/890960d2-1b56-11e5-93b7-5eddc056ad8a_story.html (discussing President Obama‘s immigration policy shift toward integration). 2. Julia Preston, Most Undocumented Immigrants Will Stay Under Obama’s New Policies, Report Says, N.Y. -
Rulemaking 101- Process and Judicial Review
Andrew Emery Principal The Regulatory Group, Inc. Arlington, VA Jane Luxton Partner Pepper Hamilton Washington, DC Aditi Prabhu Attorney-Adviser Environmental Protection Agency Washington, DC 1 The agency process for formulating, amending, or repealing a rule 2 Administrative Procedure Act (APA) 1946 ◦ 5 U.S.C. Chs. 5 and 7 Substantive statutes ◦ Govern if specify procedure ◦ E.g., OSH Act, TSCA, CAA, FTCA Other procedural statutes, such as: ◦ Regulatory Flexibility Act (RFA) ◦ Paperwork Reduction Act (PRA) ◦ Federal Advisory Committee Act (FACA) ◦ Congressional Review Act (CRA) 3 E.g.: EO 12866, Regulatory Planning & Review EO 13563, Improving Regulation and Regulatory Review EO 13132, Federalism 4 It’s all about FAIRNESS! ◦ Limiting executive power and preventing “secret law” ◦ Due process: notice & opportunity to be heard What laws govern the rulemaking at issue? 5 • Federal Register publication required for -- – Agency organization statement, procedures, other information – Substantive and procedural rules – Statements of general policy – Interpretations of general applicability – Amendment, revision, or repeal of the foregoing – Public not bound if agency fails to publish – Exception: actual and timely notice 6 • Available for public inspection and copying: – Final opinions and orders from adjudications – Statements of policy and interpretations not published in the Federal Register – Administrative staff manuals and instructions to staff that affect a member of the public – Index and copies of all FOIA records likely to become the subject of subsequent requests • FOIA 7 8 Agency statement of future effect, designed to implement, interpret, or prescribe law or policy. Informal Rulemaking (5 U.S.C. § 553) ◦ Notice & comment (N&C) rulemaking Formal Rulemaking (5 U.S.C. -
Administrative Law in the Twenty-First Century
NEW YORK UNIVERSITY LAW REVIEW VOLUME 78 MAY 2003 NUMBER 2 ESSAY ADMINISTRATIVE LAW IN THE TWENTY-FIRST CENTURY RICHARD B. STEWART* I INTRODUCTION AND HISTORY My canvas is dauntingly broad, and I must perforce paint with broad strokes. I will focus on administrative law in relation to govern- ment regulation, broadly understood. I will first briefly summarize the central elements of administrative law in the United States over the past century and show how they carry forward, reconfigured, into our current era. I will then assess the emerging new methods for achieving regulatory goals in the face of growing administrative fa- tigue and the implications of those new methods for administrative law. I will conclude with a pr6cis of the emerging international as- pects of administrative law. The Rise of Administrative Regulation The century just concluded witnessed a dramatic rise in the scope and intensity of administrative regulation. Markets and other com- plex forms of private ordering generate enormous benefits, but also market inefficiencies and failures, abuses of economic power and posi- tion, environmental degradation, safety hazards, economic insecurity, * John Edward Sexton Professor of Law, New York University. This Essay was origi- nally delivered as a lecture on the occasion of the author's installation as the inaugural John Edward Sexton Professor of Law at New York University. The research assistance of Erik Bluemel and helpful comments by Jane Stewart and by participants in the faculty workshop at New York University School of Law are gratefully acknowledged. 437 Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. -
Jurisdiction Stripping Circa 2020: What the Dialogue (Still) Has to Teach Us
MONAGHAN IN PRINTER FINAL (DO NOT DELETE) 9/16/2019 3:03 PM Duke Law Journal VOLUME 69 OCTOBER 2019 NUMBER 1 JURISDICTION STRIPPING CIRCA 2020: WHAT THE DIALOGUE (STILL) HAS TO TEACH US HENRY P. MONAGHAN† ABSTRACT Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020. TABLE OF CONTENTS Introduction ................................................................................................2 A. 1953 and Beyond ......................................................................2 B. The Dialogue: A Preliminary Look ........................................5 I. The Essential Role of the Supreme Court ........................................10 A. Hart and the Court’s Essential Role....................................10 B. The Critical Responses and the Apparently Dominant View.........................................................................................13 C. Textual and Other Ambiguities ............................................16 D. The Supreme Court, Limited Government, and the Rule of Law...........................................................................................21 E. Purpose and Jurisdiction-Stripping ......................................27