BLS Library Blog

Courts have cited the Administrative Procedure Act, Pub. L. 79–404 enacted on June 11, 1946, in blocking the Trump administration’s attempts to end policies from the Obama era. These include actions to undermine the Deferred Action for Childhood Arrivals program (New York v. Trump), a delay in a regulation requiring oil and gas companies to reduce methane leaks (Sierra Club v. Zinke), and postponement of a rule that would give low-income families more access to housing in wealthier neighborhoods (Open Communities Alliance v. Carson). In each instance, Trump policy changes have hit the same stumbling block: Courts say the administration has not followed the proper steps in enacting them, citing a 1940s-era law that’s become a key weapon in the legal battle over the president’s agenda. Under that law, the Administrative Procedure Act, federal agencies are required to provide a reasoned justification for their policy decisions and offer the public an opportunity to weigh in when they are creating new regulations, making notable changes to existing rules, or scrapping them altogether. In other words, rescission of the former policies require that the government provide notice and comment, otherwise there would be a violation of Section 553 of the APA.

Congress passed the Administrative Procedure Act in 1946 amid the rise of communism and fascism in Europe, hoping to place checks on the vast bureaucracy created by the New Deal and “avoid dictatorship and central planning,” as one legal expert explained. Under the law, federal agencies must provide a reasoned analysis for making policy changes to avoid “arbitrary and capricious” rule-making. The Administrative Procedure Act requires that agencies go through a process known as “notice and comment” before issuing, amending or repealing “substantive rules.” As part of that process, the agency must publish proposed actions in the Federal Register and then give the public at least 30 days to submit feedback. When it finalizes its proposal, the agency must respond to issues raised by the public comments and must explain why it settled upon the course of action that it chose. The explanation must show why the agency’s action is reasonable and not “arbitrary” or “capricious.”

Brooklyn Law School students may want to review Informal Rulemaking, a CALI lesson (password required), which examines the procedural steps that an administrative agency must follow in order to create a valid “informal” rule. This lesson is intended for students who have studied these issues in class and wish to further refine their knowledge.

This week marks the 10th anniversary of the No Child Left Behind Act of 2001 (Pub. L. No. 107–110) which President George W. Bush signed into law on January 8, 2012 changing how school districts educate America’s students. In remarks on signing the bill made at a public school in Ohio, President Bush said:

The fundamental principle of this bill is that every child can learn, we expect every child to learn, and you must show us whether or not every child is learning. I read a quote one time from a young lady in New York. She said, ‘‘I don’t ever remember taking an exam. They just kept passing me along. I ended up dropping out in the seventh grade. I basically felt nobody cared.’’

The story of children being just shuffled through the system is one of the saddest stories of America. ‘‘Let’s just move them through.’’ It’s so much easier to move a child through than trying to figure out how to solve a child’s problems.

Recent reports question whether No Child Left Behind (NCLB) has lived up to that promise. For example, the January 2010 report Test, Punish, and Push Out: How Zero Tolerance and High-Stakes Testing Funnel Youth into the School to Prison Pipeline provides an overview of zero-tolerance school discipline and high-stakes testing, how they relate to each other, and how NCLB have made school discipline even more punitive. The report explores:

• The common origins and ideological roots of zero tolerance and high-stakes testing
• The current state of zero-tolerance school discipline across the country, including local, state, and national data
• How high-stakes testing affects students, educators, and schools
• How zero tolerance and high-stakes testing have become mutually reinforcing, combining to push huge numbers of students out of school; and
• Successful grassroots efforts to eliminate harmful discipline and testing practices.

A November 2011 Justice Policy Institute report Education Under Arrest: The Case Against Police in Schools note that at the same time that No Child Left Behind has become part of school systems, zero tolerance policies and the use of SROs have only grown in popularity. According to the U.S. Department of Justice, the number of school resource officers increased 38 percent between 1997 and 2007. Some cities, like New York City, employ more officers in schools than many small cities’ entire police force.

The Brooklyn Law School Library has in its collection several books dealing with NCLB including No Child Left Behind: A Guide for Professionals by Mitchell L. Yell and Erik Drasgow (Call #LB2806.22 .Y45 2005). See also Many Children Left Behind: How the No Child Left Behind Act Is Damaging Our Children and Our Schools edited by Deborah Meier and George Wood (Call #LB2806.22 .M36 2004) which says that far from improving public schools and increasing the ability of the system to serve poor and minority children, the law is doing exactly the opposite.

Across the narrows from the most eastern point in the US is Roosevelt Campobello International Park in New Brunswick, Canada. The site’s two unique qualities are that it served as the summer home of US President Franklin Delano Roosevelt even though it is actually in Canada; and second, it the only park in the world owned by two countries and administered by a joint commission in their name. The park is owned, funded and staffed by the Roosevelt Campobello International Commission, established by the Roosevelt Campobello International Park Act (Pub.L. 88-363) on July 7, 1964 pursuant to an agreement between the United States and Canada.

Made up of five turn-of-the-century cottages, the Park centerpiece is the FDR summer home, a magnificent two story 34-room residence where as President, FDR returned to his summer home for three brief visits: in 1933, 1936, and 1939. Before that, Franklin, Eleanor, and their growing family spent summers from 1909 to 1921 the year he fell ill with the polio virus at the age of 39. This tragic event occured one year after the former New York State Senator and Governor ran unsuccessfully for vice-president. In that campaign, FDR, who had been Assistant Secretrary of the Navy, faced accusations by the publisher of the Providence Journal that he had mishandled the Navy’s first national gay sex scandal. For more, see William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 Iowa L. Rev. 1007 at 1049 (1997). On the eve of the election, FDR filed a $500,000 libel suit against the paper’s publisher but did not pursue it.

In addition to the Roosevelt Cottage are the Prince, Hubbard, Wells-Shober and Johnston Cottages redone and furnished to provide overnight accommodations for conference participants in the Park. At the Edmund S. Muskie Visitor Center, there are panels, displays, and a short video of the Roosevelt story from the time Franklin Roosevelt and his parents first visited Campobello through his battle with polio, his presidency, and the establishment of the Park. There are also major flower gardens, and a network of wooded paths, including a 2,800-acre natural area with sand beaches, walking bogs and vistas from ocean headlands. 

A passport or official photo ID is required to get back into the United States after visiting the park. More information about the park, including hours of operation and border crossing tips, can be found at the Roosevelt Campobello International Commission website.

On October 13, 2010, the President signed into law the Plain Writing Act of 2010 (Public Law No: 111-274) which requires that federal agencies use “plain writing” in every “covered document” issued to the public. Covered documents include any document that would be relevant to getting federal benefits of any type, finding out about federal benefits, or learning how to comply with federal requirements. Included are letters, publications, forms, notices, or instructions but, unfortunately, not regulations. That regulations are excluded is unfortunate given that the language of most regulations is almost unreadable. However, instructions for complying with federal regulations are among those “covered documents,” so it possible that the net effect will be some reduction in that paperwork burden. The complexity of regulations and the way they are written combine to make it difficult for individuals and business to understand. Whether or the new law makes compliance easier remains to be seen. Section 4 of the Act states the responsibility of federal agencies: 

Not later than 9 months after the date of enactment of this Act, the head of each executive agency to: (A) designate one or more senior officials within the agency to oversee the agency’s implementation of this Act; (B) communicate this Act’s requirements to the agency’s employees; (C) train agency employees in plain writing; (D) establish a process for overseeing the agency’s ongoing compliance with this Act’s requirements; (E) create and maintain a plain writing section of the agency’s website that is accessible from its homepage; and (F) designate one or more agency points-of-contact to receive and respond to public input on (i)the implementation of this Act; and (ii) the agency reports required under section 5.”

According to H. Rept. 111-432, the history of the effort to implement plain language dates back to 1979 when President Carter issued Executive Order 12174 encouraging agencies to draft forms ‘‘to elicit information in a simple, straightforward fashion.’’ The title of the original bill, H.R. 946, was the Plain Language Act of 2009 when Rep. Bruce L. Braley of Iowa introduced it in February 2010. The Committee on Oversight and Government, chaired by Brooklyn Rep. Edolphus “Ed” Towns, reported the bill to the House in March 2010 and changed its name to the Plain Writing Act.

The new law is not retroactive so that regulations in effect at the time of its enactment, along with instructions for implementing them, need not be rewritten unless they are being “substantially revised”. Furthermore, the new law becomes effective one year after the date of its enactment in order to give federal agencies time to comply. Congressman Braley issued a press release with three before-and-after examples of plain language in federal documents.

• Example #1: Medicare Fraud Letter
• Example #2: FDA drug warning label
• Example #3: IRS form before and after

In New York to attend the UN General Assembly, Dominican Republic President Leonel Fernández spoke at Brooklyn Law School to discuss constitutional reform measures he is introducing in his country. Library Director Victoria Szymczak hosted President Fernandez and his wife, First Lady Margarita Cedeño de Fernández in the Moot Court Room where Dean Joan G. Wexler introduced the President to speak about how he is preparing the Caribbean nation to meet the challenges of the 21st century. Dean Wexler told the assembled guests about Fernández’ being born in Santo Domingo and having moved to the US to spend his childhood in Washington Heights. The Dean went on to explain that Fernández started his Law Studies in the Universidad Autonoma de Santo Domingo where he graduated at the top of his class and that he became active in the Dominican Liberation Party in 1973. She also spoke about his first presidential term from 1996 to 2000 after which he was unable to run for a second term, as the constitution did not allow it. After a change in the constitution, Fernández was sworn in for a second term in 2004 and was re-elected to another term in 2008.

President Fernández spoke about the independence movement in Latin America, which took place about 200 years ago in 1809 when most Latin American countries became free from Spanish rule. He noted that the DR declared its independence from Haiti in 1844. Citing a novel titled The Feast of the Goat by Peruvian writer Mario Vargas Llosa about dictator Rafael Trujillo, Fernández spoke about the military dictatorship from the 1930s until Trujillo’s assassination in 1961. He also spoke about the 1963 democratically elected government of Juan Bosch which ended with the 1965 US invasion which President Lyndon B. Johnson justified based on fears that the DR was turning into “a second Cuba”. Except for the period of authoritarian rule under Joaquin Balaguer until 1978, he said, the DR has moved toward representative democracy.

Fernández’ address about the DR’s new constitution, which has been ongoing for the past several months, stressed his view that it was a continuation of a liberal social democratic tradition that has been growing since the end of the dictatorships. He stated that the process included public consultation and that its content came from the bottom up rather than from the top down. In the Q&A after the President’s remarks, BLS students questioned key provisions of the new constitution, notably Article 30 of the constitution which would introduce the inviolability of life from “conception to death” and thus outlaw a woman’s choice of abortion even in cases of rape, incest or a threat to her life. Fernández stated that this clause was the result of the country’s large Roman Catholic population. Another questioner raised the issue of the new constitution’s impact on Haitians living in the DR and their ability to become Dominican citizens. Fernández said that the widely-held view that Dominicans exploit Haitian workers was unjustified as Haitians emigrate to the DR for a better life and are likely to have lower standards of living than native Dominicans just as Dominicans who emigrate to New York have compared to native New Yorkers. Fernández remarked that it appeared that BLS students were well informed on the the issues that he addressed.