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Full-Text Articles in Law
What Factors Can An Agency Consider In Making A Decision?, Richard J. Pierce Jr
What Factors Can An Agency Consider In Making A Decision?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In State Farm, the Supreme Court said that an agency decision is arbitrary and capricious if the agency did not consider adequately a relevant factor or did consider an impermissible factor. The Court did not indicate how courts should distinguish among three categories of potential decision making factors: mandatory, discretionary but permissible, and impermissible. Until 2007, the case law in both the D.C. Circuit and the Supreme Court addressed these questions in sensible ways. In particular, both courts held consistently that congressional silence with respect to a logically relevant factor rendered the factor a permissible factor that an agency could …
Process-Based Preemption, Bradford R. Clark
Process-Based Preemption, Bradford R. Clark
GW Law Faculty Publications & Other Works
The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this …