Archive for January, 2004

Another Admin Law Tidbit

Monday, January 26th, 2004

A week or so ago, I discussed a case that looks likely to end up before the Supreme Court, concerning how the Americans with Disabilities Act affects wheelchair-bound movie patrons at stadium-style theaters. In short, do the theaters have to provide merely an unobstructed view to people in wheelchairs (which the theaters could do by putting all the wheelchair-accessible seats up front), or do they have to provide sight lines similar to those enjoyed by other patrons (which would probably require a lot of work by a lot of theaters to make the upper portions of the “stadium” accessible to wheelchairs)?

Anyway, last week the Supreme Court decided another administrative law case, and I wanted to mention it briefly in case I needed a cite for an I-told-you-so later on. The case was Alaska Department of Environmental Conservation v. Environmental Protection Agency. For a nice summary, check out this one at SCOTUSblog (see also the links to news reports on the case in the next two posts after that one).

Very briefly, the case dealt with whether the EPA’s interpretation of certain requirements of the Clean Air Act could trump state agency determinations that facilities were in compliance. The Act gives the state agencies the authority to make those determinations, but it also gives the EPA the authority to enforce the act, so when the EPA decided that the state agency had gotten it wrong, it stepped in. The facts of the case aren’t important to this post, but they’re interesting, so go ahead and read up on it, and I’ll be here when you get back. The gist of the Court’s decision was that the EPA had the authority based on its interpretation of the Clean Air Act.

The aspect of the decision that caught my eye focused on the level of deference courts owed to the EPA’s interpretation. The majority said it wasn’t due the highly deferential review called Chevron deference, because the agency interpretation wasn’t a formal notice-and-comment rulemaking. Nevertheless, the majority said the EPA’s stance was owed respect, and upheld it under the “arbitrary and capricious” standard (if the EPA wasn’t crazy, it’s permissible). The dissent argued that the majority had given the EPA too much deference despite saying it wasn’t — it was Chevron deference in all but name. (Hmm….Justice Ginsburg wrote the majority opinion, and the dissenters argued she did the same thing in her VMI decision, applying strict scrutiny review without calling it that….nothing else to say there, just noting it.)

I think a similar scenario could play out in the ADA/movie theater case. The theaters have been consistently arguing that the DOJ regs implementing the ADA aren’t owed the deference most courts have been giving them. And it’s true that they are somewhat informal and did not go through the formal rulemaking process. But so far, the Fifth Circuit is the only court that disagreed with the DOJ’s interpretation of its own reg.

Well, like I said, the biggest reason for this post is to have something to link to when the Supreme Court finally decides the movie theater case. It wouldn’t surprise me to see a cite to AEDC v. EPA for the standard of deference owed to the agency interpretation. Of course, these cases are pretty complicated, and I may be missing something. For example, the Clean Air Act gives some power to state agencies and sets up an interplay between the states and the feds — this really isn’t present in the ADA. And the way in which the agencies acted is different. But, if this case is a sign that the Supreme Court will be pretty deferential to agency interpretations of statutes under their purview, it’s probably a good sign for wheelchair-bound moviegoers.

And of course, if the Supreme Court goes the other way and somebody wants to cite this as an I-told-you-NOT-so, I’ll just delete it and pretend it never happened.

Thank you, Dick

Tuesday, January 20th, 2004

Alternative post title: Iowans prefer the F-bomb to the H-bomb by 2 to 1 margin

So John Kerry, John Edwards, and Howard Dean all claimed victory in the Iowa caucuses (big surprise), while Dick Gephardt reportedly will announce today that his candidacy is over. That is too bad, because Gephardt, for all his pro-union flaws, has been fairly consistent in his position on the war in Iraq and he had the courage to vote for the $87 billion to finance Iraqi reconstruction. I am not saying I would have wanted to see a President Gephardt (egads!), but I would like to have seen him stay in the race a little longer.

Now, I am not sure how finishing a distant third in Iowa constitutes a victory for frontrunner Dean (hereinafter “H-bomb“) — Sen. Harkin summed it up this way at the H-bomb ‘victory’ rally, “Iowa has traditionally written three tickets out of here and we are on that ticket!” Praise the Lord and pass the ammunition, that was a rousing victory speech if ever I heard one! What I am sure of is that the Democratic party owes a debt of thanks to Dick Gephardt for knocking H-bomb out of contention at the expense of his own campaign. Gephardt’s attack ads hurt H-bomb even among his “hardcore” supporters (query how hardcore they really were if they abandoned ship after seeing a couple of TV spots). Joe Trippi absolved the H-bomb campaign (aka himself) of any blame for the abysmal third-place finish and blamed it all on Gephardt going negative. For now I’ll put aside any comments about Trippi washing his hands of failure and just congratulate Gephardt on doing what was right for the party and the country. H-bomb has absolutely no chance of beating President Bush and the sooner the angry left figures that out and rejects him in favor of a candidate who can offer some competition the better. The last thing we need in this country is for President Bush to breeze past the finish line in November without Karl Rove even breaking a sweat. The Dems need to offer a candidate who will force President Bush to earn his victory — it is simply better for the Republic. H-bomb is not the guy who can do that and I am thankful that Gephardt convinced Iowans of that fact. Hopefully the voters in New Hampshire were paying attention last night.