Administrative Process Final Exam
Professor Erin B. Corcoran
Spring 2015
PART II - ADMINISTRATIVE PROCESS FINAL EXAMINATION
Instructions for Part II:
You may not consult any materials, written or electronic, other than any materials provided in the exam.
· You will have approximately 60 minutes to complete Part II of the exam. Part II of the exam requires six written short answers:
1. You must include your exam number on every page (do NOT put your name on this exam).
2. You must number your pages.
3. There is a word limitation of 250 for each answer in Part II. I will stop reading each answer at word 250. Any additional words, in excess of the word limitation will not be read or graded.
Honor Code Issues:
You are NOT permitted to discuss the exam, your exam answers or any questions you have about the exam with anyone other than the Registrar until all students have completed the exam. I will notify you by email when all students have completed the exam. If you discuss the exam before receiving that email, your score for the exam will be 0, and I will pursue honor code charges against you.
1. Forty years ago, Congress enacted the Pure Drinking Water Administration Act. The Act created an executive agency to be called the Pure Drinking Water Administration (PDWA). The PDWA was empowered to authorize research into the purity of drinking water throughout the United States and to make its findings known to states. The Act provided that the PDWA was to be headed by a director to be appointed by the President of the United States with the advice and consent of the Senate. Subsequently, with senatorial approval, the President appointed a director. Since that time, there have been several PDWA directors, each appointed by the President with senatorial approval to replace the predecessor who had resigned. This year, by presidential order, the President purported to dismiss the present PDWA director. Is this presidential order constitutional? Why or Why not?
2. Under Marbury v. Madison, it is “emphatically the province and duty of the courts to say what the law is.” If so, why do courts apply Chevron deference when they review an agency’s legislative rules?
3. A federal statute, “Healthy Infant and Child Act,” (HICA) lists the types and amounts of nutrients that infant formula must contain. HICA also provides, however, that the Secretary of Health and Human Services “may by regulation” revise the list as to add or delete nutrients or to change the amounts prescribed in the statute. The statute does not expressly provide any standard for these revisions. Does this statute violate the delegation doctrine? Why or why not?
4. Congress passed and the President signed the Immigration Reform Act, a law allowing certain undocumented immigrants to apply for permanent legal resident status in the United States. One of the requirements for legalization is that the applicant must prove he or she has maintained a continuous presence in the United States for the 5 years prior to enactment. The Department of Homeland Security (DHS) is authorized under the statute to promulgate regulations pertaining to the legalization process. DHS promulgated regulations interpreting what interrupts continuous presence. The regulations stated that if a non-immigrant traveled outside the United States during the five years prior to enactment and did not obtain permission from DHS prior to travelling, continuous presence is broken and the applicant is ineligible for legalization. A legal service provider who will be representing undocumented immigrants when they apply for legalization under the Immigration Reform Act sues DHS arguing that the regulation is an impermissible construction of the Immigration Reform Act. Is this case ripe for review? Why or Why not?
5. The National Park Service adopts a rule without any public procedure governing the permit process for cruise ships entering national parks, and a cruise ship line challenges the rule as violating the APA’s requirement for notice and comment. The court upholds the rule. Why?
6. A federal statute prohibits “unfair practices in the sale or leasing of automobiles.” The statute also creates an agency and gives the agency the power to enforce the statute through an elaborate adjudicatory process. The statute also gives the agency the power “to make rules to carry out the substantive provisions of the statute.” In a recent order from an administrative law judge, the judge holds that that Fast and Cheap, a local used car dealer, has violated the statute when it turned back the odometer in a car it was selling. The agency then applied this rule in subsequent adjudications under the Act. Should the agency be required to make the rule pursuant to section 553 of the APA as opposed to announcing it while deciding an individual adjudication?
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