QUESTION 1. The City of New York currently requires certain types of establishments that sell food for immediate consumption, such as chain restaurants, to post on the menu or wall the number of calories in each item sold. The City is considering extending this regulation in two ways. First, it wants to extend the scope of its regulation to include all restaurants and groceries that sell food for immediate consumption, as at a buffet or salad bar. Second, it wishes to require every covered establishment "prominently to post on its menu, signage, or any packaging appurtenant to all food items that it sells: the serving size, number of calories per serving, and number of grams of cholesterol, fat, sugar, and sodium per serving. Raw fish and raw agricultural commodities like fresh fruits and vegetables are to be exempt from this requirement."
Does this regulation violate federal law, given 21 U.S.C. § 343(q)? Justify your answer.
Hint: don't forget to look at 21 U.S.C. § 343(q)(5)(A).
QUESTION 2. In 2006, a task force of the American Bar Association voted to "oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention ... to interpret all or part of a law he has signed in a manner inconsistent with the ... intent of Congress." Is the task force right to take this position? Justify your answer.
QUESTION 3. Taxation of real property is the leading method by which states and school districts in the United States raise funds in support of public schools. Real property owned by the federal government, however, is exempt from state and local property taxation. This exemption poses a particularly serious problem for those districts in which large amounts of federally owned lands happen to be located. To address this problem, Congress in 1970 passed the Federal School Aid Act (FSAA). The Act provides federal funds to districts where the ratio of the value of property owned by the federal government to the total property wealth of the district exceeds a stated floor.
Section 602(a) of the FSAA provides:
§ 602(a). General prohibition. Except as provided in subsection (b) of this section, a State may not consider payments under this subchapter in determining, for any fiscal year, the eligibility of a local educational agency for State aid for free public education, or the amount of such aid.
Nor may a State make such aid available to local educational agencies in a manner that results in less State aid to any local educational agency that is eligible for such payment than such agency would receive if such agency were not so eligible.
The Committee Report that accompanied the FSAA when it was brought to the floor of the House states that § 602(a) was included in the Act to ensure that federal aid to impacted districts did not lead states to reduce or offset their own State aid to the same districts. The Report further states, however, that there were concerns that § 602(a) might unreasonably interfere with State programs that seek to equalize per-pupil expenditures across districts throughout the State, for instance, by preventing the State program from taking account of a significant source of federal funding that some local school districts receive. Such programs in the States, increasingly in use, are intended primarily toreduce the gap between per-pupil expenditures in rich and poor districts. This laudable goal should not be undermined. These concerns, the Report states, were addressed by the inclusion of § 602(b), which provides:
Sec. 602(b). State equalization plans. (1) A State may reduce State aid to a local educational agency that receives a payment under subsection (a) of this section for any fiscal year if the Secretary of Health Education and Welfare (HEW)1 The Secretary established within his Department the following method for defining "equalizing expenditures." Each fiscal year and for each State, the Secretary would first create a list of school districts in the State ranked in order by per-pupil expenditure. He would then identify those districts whose students accounted for the 5 percent of the State's total student population that lay at each of the high and low ends of the spending distribution. Where there were fractions, he determines and certifies that the State has in effect a program of State aid that equalizes expenditures for free public education among local educational agencies in the State.
1 HEW was the predecessor agency to the Department of Education. The statute that established the Department of Education in 1979 updated all references in the FSAA and regulations promulgated thereunder to the HEW Secretary or Department so that they referred to the Education Secretary or Department. would round up to the nearest whole district. He would remove these extreme and potentially anomalous districts from the list. As a result the remaining list would contain districts that educated the 90% of the State's students - those students for whom per-pupil expenditure was below the state's 95th and above its 5th percentile. Finally the Secretary would compare the highest spending and lowest spending school districts that remained on the list. If and only if the per-pupil spending of the higher district did not exceed that of the lower district by 25 percent, the Secretary would issue the certification required by § 602(b).
This algorithm was published by the Department in 1976, although it had not been developed pursuant to notice and comment. An explanatory statement that accompanied the publication stated that the purpose of chopping off the tails of the distribution was to avoid penalizing states for anomalous circumstances that affected "a small number of districts and students."
In 1994, the Secretary of Education submitted to Congress a set of amendments to the FSAA that were intended to clarify and improve the statute in a variety of ways. It proposed to add immediately after the existing § 602(b)(1) a new subsection that read:
Sec. 602(b). (2) Computation.
(A) For purposes of paragraph (1), a program of State aid equalizes expenditures among local educational agencies if, in the second fiscal year preceding the fiscal year for which the determination is made, the amount of per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the highest such per-pupil expenditures or revenues did not exceed the amount of such per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the lowest such expenditures or revenues by more than 25 percent.
(B) In making a determination under this subsection, the Secretary shall disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State. This language, along with all of the other amendments proposed by the Secretary, was enacted, without Congressional comment or clarification. No one at the time-no Member of Congress, no Department of Education official, no lobbyist, no school district, and no State-expressed the view that this statutory language (which was supplied by the Secretary) was intended to require, or did require, the Secretary to change the Department's existing system of calculation in support of its § 602(b) certifications. Nor did the Secretary make any such change.
The State of Fordham is an American state containing 89 school districts, of widely varying populations. In 2005, Fordham reduced the amount of state aid received by its Terra School District, a district receiving federal impact aid. By letter to the Department, Terra protested this reduction. In the letter, Terra argued that § 602(b) of the FSAA required the Department to calculate the 95th and 5th percentile cutoffs solely on the basis of the simple number of school districts (ranked by their per-pupil expenditures), without any consideration of the number of pupils in those districts. Under this method, Terra stated, 5 high-spending districts (5% of 89, rounded off) and 5 low-spending districts (also 5% of 89, rounded off) would be identified as the outliers that the statute instructs the Secretary to disregard.22 The total cumulative enrollment in these ten districts is less than 2 percent of total statewide enrollment.
and lowest per-pupil expenditures of the remaining districts in the relevant fiscal year would be 26.9 percent. Because this figure exceeds 25 percent, Fordham would not be allowed to take account of federal impact aid in deciding how much state aid to give to Terra.
The Department of Education, by return letter, informed Terra that it had determined that Fordham's reallocation of state aid was lawful. The relevant paragraph of the Department's letter to Terra stated:
We have reviewed Fordham's aid to its school districts for the relevant fiscal year. Consistent with our longstanding practice, we ranked each of Fordham's 89 districts by perpupil spending. We then excluded 17 school districts at the top of the list because those districts contained (cumulatively) less than 5 percent of the student population; similarly, we excluded an additional 6 school districts at the bottom of the list. The remaining 66 districts, including Terra, accounted for approximately 90 percent of the State's student population.
Of those, the highest ranked district spent $3,259 per student; the lowest ranked district spent $2,848 per student. The difference, $411, was less than 25 percent of the lowest perpupil figure, namely $2,848. Hence, we find that Fordham's local aid program qualifies as a program that "equalizes expenditures." Fordham is therefore free to offset Terra's federal impact aid.
Terra seeks judicial review of the Department's unfavorable determination. Terra's briefs concede that the Department's calculations correctly implement the Department's own algorithm, but assert that the algorithm is unlawful.
Terra's briefs, and Fordham's briefs in response, also cite the following passel of dictionary definitions, which you may assume are the only ones that may be relevant:
Percentile. The value of the statistical variable that marks the boundary between any two consecutive intervals in a distribution of 100 intervals each containing one percent of the total population. Webster's Third New International Dictionary 1675 (1961). Percentiles. The values separating hundredth parts of a distribution, arranged in order of size. The 99th percentile of the income distribution, for example, is the income level such that only one percent of the population have larger incomes. J. Black, A Dictionary of Economics 348-349 (2d ed. 2002).Percentile. The n-th percentile is the value xn/100 such that n per cent of the population is less than or equal to xn/100. The term can be modified, though not always very satisfactorily, to be applicable to a discrete random variable or to a large sample ranked in ascending order. C. Clapham & J. Nicholson, The Concise Oxford Dictionary of Mathematics 378-379 (3d ed. 2005).
Percentile. A value on a scale of one hundred that indicates the percent of a distribution that is equal to or below it. Merriam-Webster's Medical Desk Dictionary 612 (2002). Write an essay that describes the framework a reviewing court would use to decide this case and predicts the case's outcome. Justify your positions.
QUESTION 4. How, if at all, would your answer to QUESTION 3 be different if the Department's letter to Terra included the following immediately after the text of the letter as given in QUESTION 3: We cannot accept your suggestion that we calculate whether a State is equalizing expenditures by determining the "percentiles" required by the statute on the basis of the simple number of districts rather than pupil population. The purpose of the exclusions mandated by the statute is to eliminate anomalous characteristics from a distribution of expenditures. In States with a small number of large districts, an exclusion based on percentage of school districts might exclude from the measure of disparity a substantial percentage of the pupil population in those States. Conversely, in States with large numbers of small districts, such an approach might exclude only an insignificant fraction of the pupil population and would not exclude anomalous characteristics. An exclusion based upon numbers of districts alone would act to apply the disparity standard in an unfair and inconsistent manner among States. Justify your response.
QUESTION 5. How, if at all, would your answer to QUESTION 3 be different had the Secretary of HEW in 1976, instead of publishing his method for determining whether a state was equalizing expenditures, promulgated it after notice and comment, and included in his statement of basis and purpose the following language:
The Department has chosen this method in order to eliminate anomalous characteristics from a distribution of expenditures. In States with a small number of large districts, an exclusion based on percentage of school districts might exclude from the measure of disparity a substantial percentage of the pupil population in those States. Conversely, in States with large numbers of small districts, such an approach might exclude only an insignificant fraction of the pupil population and would not exclude anomalous characteristics. We have not adopted an exclusion based upon numbers of districts alone because to do so would apply the disparity standard in an unfair and inconsistent manner among States.
Justify your response.
QUESTION 6. The Federal Meat Inspection Act, 21 U.S.C. § 607(b), requires that "all meat and meat food products ... shall at the time they leave the establishment [where they are manufactured] bear, in distinctly legible form, directly thereon or on their containers, as the Secretary [of Agriculture] may require, the information required under paragraph (n) of section 601 of this title." Section 601(n) in turn requires that a meat product may not be marketed, (11) if it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact .... (12) if it fails to bear, directly thereon or on its container, as the Secretary may by regulations prescribe ... such other information as the Secretary may require in such regulations to assure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the article in a wholesome condition.
Nitrates and nitrites are substances that have been used for centuries to cure meat, giving products like hot dogs, bacon and ham their characteristic flavor and color and killing the bacteria that causes botulism. Today, conventional meat packers typically use a synthesized version known as sodium nitrite. Since the 1970s, concerns about the health effects of nitrate and nitrite have focused on the potential for nitrite to combine with meat protein to form carcinogenic substances called nitrosamines.
A regulation promulgated by the US Department of Agriculture (USDA), using notice and comment, requires that products that contain sodium nitrite prominently so note on the front of their product labels. It also requires preserved meat products that do not contain sodium nitrite to be labeled "uncured" and "No nitrates or nitrites added." The statement of basis and purpose that accompanied the regulation justified this last requirement with citations to the Federal Meat Inspection Act, 21 U.S.C. §§ 601(n)(12), 607(b), and to the Food, Drug and Cosmetic Act at 21
U.S.C. §§ 342(f), 343(k).
In recent years, manufacturers of "organic" and "natural" foods have begun to use natural rather than chemical sources of nitrites, such as celery juice and swiss chard, whose naturally occurring nitrites cure the meat. Because no chemical nitrites are added to such products, the application of the USDA regulation to them requires that the words "Uncured" and "No nitrates or nitrites added" appear on their labels, even though the products are cured and do contain nitrites.
Applegate Corp., a sausage manufacturer, has petitioned the USDA to alter the regulation to allow natural or organic cured meats to be labeled in a way that reports the truthful fact that they contain nitrites. You are a lawyer for the USDA and have been asked to write a memorandum that assesses whether the current regulation, as applied to natural or organic cured meats, is consistent with the statute. Your supervisor also asks that you describe the type of deference, if any, that the Department would receive should a reviewing court reach the merits of a challenge to its existing regulation, again as applied to natural or organic cured meats. Write the memo.