Lernmaterialien für US Public Law and Government an der Universität Münster

• Basic features (Asimow)
  1. Combined Function Agency (class 7)
     • Initial adjudication by hearing officer within the implementing agency
  2. Closed Judicial Review
     • An agency is reviewed on the reasons it gave at the time of the decision
  3. Judicial Review by Generalized Court
     • i.e. not a specialized administrative review court (as exists e.g. in Germany)
     • Although US Federal Court of Appeals for the DC Circuit (“the DC Circuit court”) hears many regulatory cases and so has special expertise 
• APA: basic judicial review positions
  1. Threshold issues: when can someone seek judicial review?
     • E.g. must have standing, must exhaust other remedies etc.
     • Mostly either standard, in comparative terms, or technical
  2. Basic jurisdiction is from APA § 10, 5 U.S.C. 706 (ss 1 & 2)
  3. § 706(1) is used with deference: only where agency is legally obliged to take a ‘discrete’ [i.e. particular, narrowly-defined] step
     • E.g. failure to act on a license application
  4. § 702 (2)(B) just applying Const. (see due process and other rights)
  5. § 702(2)(C) and (D) just applying APA procedure rules and/or the empowering statute (see Chevron)
• APA: other provisions
  1. § 706(2)(A) and (E): “arbitrary, capricious; unsupported by substantial evidence” à important language in practice
  2. § 706(2)(F): statute might limit judicial review e. g. to points of law
• APA: substantive review provisions
  1. § 706(2)(A), (E) and (F) permit ‘substantive review’, review of the agency’s decision itself
     • Not just checking statutory and procedural compliance (which is often easier)
  2. Terms/standards here not very precisely defined: see e.g. one famous statement of what ‘arbitrary and capricious’ requires:
     • often involves other, separate subsections of § 706(2)
  3. Similar problems with other APA terms - e.g. ‘substantial evidence’ – and with the Court’s terms – e.g. ‘rational’, ‘based on…relevant factors’
• APA: open-ended text
  1. And Congress knew this: the APA is deliberately open-ended, just as it deliberately says little about informal adjudication
  2. So this regulatory system can leave a lot to particular statutes, as implemented by particular agencies, to work out more precisely…
  3. … and since they are subject to judicial review, it empowers courts
• Post-switch federal judiciary
  1. After the New Deal, courts had become much more deferent on substantive constitutional review
     • E.g. the new commerce clause, the decline of Lochner-style substantive due process, no use of the due delegation doctrine
     • … and for some years, generally deferent to federal government and agencies
  2. This starts to change (roughly, early 1960s)
     • Courts beginning to review agencies more, often using administrative law or review in terms of their empowering statute…

• Declaration of independence and articles of confederation considered US 13 sovereign countries
• Constitutional convention in Philly, summer 1787
• Concerns: AoC too weak, too decentralized
• New Constitution required 9 states to ratify, whereas AoC required all 13 to ratify an amendment of the Articles

• All federal elections are first-past-the -post --> no proportional representation
• Small parties usually have little or no federal representation --> two-party system is natural
• Duverger’s law: first-past-the-post electoral rules favor two-party system

Executive is elected independently from legislative --> executive may not always have congressional majority support

• Votes are allocated to states according to number of representatives in both houses of Congress --> 538 members
• DC gets votes according to number if they had proper representation --> 3
• Almost all states (except NE and ME) allocate their votes in winner-takes-all-system
• Snake chart: shows state(s) most likely to decide election
• Faithless electors: in some states illegal (but not criminalized), in others completely legal

• Many kinds of gov decisions require cooperation from two or all three branches of gov
• E. g. appointing federal officials
• Lawmaking:
  1. Pass a statute: both houses of congress, prez must sign; veto needs to be overwritten (two-thirds)
  2. --> you need all three branches or a big majority in houses

• Senate: 2 senators per state --> 100 in total
• House: 435 congresspeople divided among whole population
• Territories have non-voting reps in House, no representation in Senate
• District participates in presidential election
• NatAms have full voting rights in their states

• Whole house every two years
• Prez every four years w/ two-term-limit à always congressional election in middle of prez. Term (mid-term election)
• --> One-third of senate every two years, one term lasts six years
• --> Hard to take control of whole government
• Intentional design to check power of federal gov
• Unusual for one party to control all three branches
  1. Sometimes, voters aim for this result: split-ticket voting --> vote for different parties in different branches (rarer today)
  2. Sometimes, it happens bc country is close to evenly split --> then branches will shift back and forth --> statistically unlikely to win all 3

• Supreme Court: 
  1. constitutionally required
  2. citations contain “US”
  3. court decides itself which cases it hears à grant writ of certiorari
     • less than 2 % of appeals are granted --> 100-150 cases/year
     • SCOTUS more likely to hear case if two CoA disagree
  4. Is court of general jurisdiction --> final appeal court on all federal legal issues
  5. Constitutional review is decentralized
     • All fed. courts have jurisdiction to hear const. cases --> start in District court
• Circuit Courts of Appeals: 
  1. cited as “F2d” or “F.3d”
  2. most federal cases decided here
• District Courts: cited as “FSupp”
• Constitutional Protections, Art. III
  1. Only SC constitutionally required, other courts est. by statute
  2. No term limits
  3. Art. III s. 2 only refers to cases or controversies à no abstract constitutional review in advance
• Every state has independent judicial system
  1. State courts enforce state law, federal courts enforce federal law
  2. Unless no federal question, state courts decide issue finally
  3. Fed. courts also have “diversity jurisdiction”: mixed issues, parties and issues not from same state
• If case in state court raises a federal question
  1. It can be transferred (“removed”) to fed. court à doesn’t have to
  2. Or it can be appealed on that basis, from decision of the highest state court, to SCOTUS (if cert granted)
• State judges
  1. Not same as Art III judges --> appointed under state rules
  2. Most state judges face at least one election
     • Most commonly conf. election after first term
     • Few states: regular repeated partisan elections

• Art I: Legislature
• Art II: Executive
• Art III: Judiciary
• Art IV: federal issue on interstate and federal relations
• Article V: Amendment process
  1. 2/3 of both houses of congress to propose + ¾ of states to ratify
  2. Or: 2/3 of state legislatures to propose (Convention) + support of ¾ of states to ratify
  3. Weakness
     • High threshold for amendment
     • Strongly state-protecting
     • Congress cant amend on its own
     • Only 27 amendments, 17 since 1791
• Art VI: Supremacy of con. Law and Oath
• Art VII: Ratification
• Rights:
  1. Few rights in main text: Prohibitions of Bills of Attainder or Impairment of Obligation of Contracts (Art I s 9, 10), Citizen Privilege (Art IV s 2)

1. First ten amendments, ratified 1791
2. 1st: free speech, assembly, federal neutrality on religious matters
3. 2nd: right to bear arms and establish militias
4. 3rd: right not to have to quarter soldiers in your house
5. 4th: protection against searches etc.
6. 5th-8th: criminal protections
7. 9th: enumeration clause
8. 10th: reservation of powers to the states or the people

• Each state has own gov structures
• Legislatives have different names (e. g. in Massachusetts --> General Court)