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Administrative Law
Quinnipiac University School of Law
Farrell, Robert C.

I.       Introduction to Agencies
A.    Theories of Agencies
1.      James Madison—distrusted human behavior, therefore he may have distrusted administrative agencies because he may have thought that they would be partisan.
2.      Joseph Eastman—thought the opposite of Madison and thought that administrative agencies would not be partisan.
3.      James Landis—thought that agencies were a good thing because they were the experts on issues that the agency dealt with.
4.      Marver Bernstien—there are stages that agencies go though and the last stage is one in which the agency is captured by the industry that it has been regulating.
5.      Roger G. Noll—regulators in the agency become increasingly acquainted with the people in the industry that they regulate and the regulators become tainted by these industry connections which in turn taints the entire agency.
II.    Agencies and the Constitution
A.    Introduction—Two Views
1.      Formalist View
a.       The 18th century view that the U.S. Constitution only created the 3 branches of government would have a hard time accommodating administrative agencies. Because administrative agencies make rules, they may investigate allegations of breaches of those rules, and they may adjudicate those allegations, it looks like agencies perform like the three branches specifically created by the U.S. Constitution. However, because the U.S. Constitution does not even mention an entity such as administrative agencies, the 18th century view would not entertain their existence as legitimate under the U.S. Constitution. 
2.      Functionalist View
a.       Courts have more or less adopted this functionalist approach. According to this view, administrative agencies help the government function and without them government would come to a stand-still. 
B.     Article I § 1
1.      Language
a.       All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
2.      Issue
a.       Delegation Doctrine
i.        Congress cannot delegate its lawmaking power to other branches of the government because this would violate the separation of powers inherent in the U.S. Constitution. 
b.      Problem
i.        Agencies are needed because congress is too busy to make ALL the laws. For example, imagine congress establishing all the postal routes in the United States, or determining the proper ppm of Benzene in the workplace. Because doing this would take up so much time, congress delegates this task to agencies.
ii.      In order to delegate, Congress passes an Organic Statute which creates the Agency and defines its rulemaking ability. Because the courts have taken a functionalist approach to agencies, courts allow congress to create an agency and define its rulemaking ability by passing the Organic Statute. 
iii.    After the Organic Statute is passed, the issue is whether congress has delegated so much of its lawmaking power that the agency in effect is acting like a mini-congress and the delegation would offend the separation of powers inherent in the U.S. constitution. That is to say because the idea of separation of powers prevents congress from delegating its legislative power to another branch, has congress violated this idea by delegating some authority to the agency in the Organic Statute? 
3.      Analysis of Delegation Issues
a.       “Intelligible Principle Test”
i.        To determine whether Congress has unconstitutionally delegated its legislative power to an agency the court uses the “Intelligible Principle Test.” It states:
(A)There is no forbidden delegation of legislative power so long as congress has laid down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform. Mistretta v. U.S.
(B) Delegation is constitutionally sufficient if congress clearly delineates the general policy, the public agency which is to apply that policy, and the boundaries of the delegated authority. Mistretta v. U.S. 
4.      Delegation Cases
a.       Ever since Roosevelt’s presidency, the court has not struck down any statutes as violative of the Delegation Doctrine.[1] 
b.      Mistretta v. U.S.—p.64
i.        Congress delegated the making of the Uniform Sentencing Guidelines to the United States Sentencing Commission. Mistretta was indicted for selling cocaine and argued that the Uniform Sentencing Guidelines were unconstitutional because the Sentencing Commission was constituted in violation of the established doctrine of separation of powers, and that congress delegated excessive authority to the Sentencing Commission to structure the guidelines. The court did not agree. The Court found the intelligible principles in the 3 goals and 4 purposes of the of the organic statute delegating power to the Sentencing Commission. Additionally, the court recognized that congress directed the Sentencing Commission in promulgating the guidelines to consider 7 factors for categorizing offenses and 11 factors determining the category of defendants. Thus, the Court held that there was no unfettered discretion delegated to the Sentencing Commission and therefore there was no violation of the delegation doctrine.    
c.       Industrial Union Dep’t AFL-CIO v. American Petroleum—ON EXAM, p. 74
i.        Congress passed an organic statute called the Occupational Safety and Health Act (OSHA). The act delegated discretion to the Secretary of Labor to promulgate standards to make sure that workplace conditions were safe. OSHA promulgates a rule that allows only 1% Benzene in the workplace. This rule was extremely cost prohibitive and the rule only affected a small number of people. The majority really decides the case on statutory construction. The crux of this case is in Rehnquist’s concurrence. 
ii.      Rehnquist believes that the provision in the Organic Statute delegating the authority to the Secretary of Labor to promulgate rules would violate the delegation doctrine. The statute says, “in promulgating standards dealing with toxic materials or harmful physical agents . . . [the secretary of labor] shall set the standard which most adequately assures, to the extent feasible. . . that no employee will suffer material impairment. . . .” Rehnquist said that feasible was put in there to give OSHA guidance, but the guidance taken from feasible is not clear. The feasible language could be precatory (advisory), it could mean technologically feasible, economically feasible, administratively feasible, or politically feasible. Because the language, feasible, can mean so many things, the statute gives a complete grant of authority to promulgate rules, there is no intelligible principle, and therefore there is a violation of the delegation doctrine. Rehnquist believes that congress is charged with making decisions about social policy because they are accountable to the electorate, however, in this case congress passed an important social policy issue off to the agency without any guidance for that agency. 
d.      State of South Dakota v. United States Dep’t of the Interior (8th Cir.)—p.96
i.        Does this case breathe a spark of life into the delegation doctrine? The Organic Statute allowed the Secretary of the Interior to purchase any interest in land within or outside the reservations to be held in trust for the purpose of providing land for Indians. The court said that this statute was a violation of the delegation doctrine because it permitted the Secretary of the Interior to buy the Empire State Building if s/he wanted and hold it in trust for the Indian Chief as a wedding present.    Note: this case was reversed without opinion by the S. Ct.
5.      Controlling Delegations of legislative power
a.       Legislative overrides
i.        Statutory Overrides
(A)If congress does not agree with an agency’s decision it can override that decision by properly enacting legislation. The legislation must pass the House and the Senate (bicameral review) and be signed into law by the President. Typically this may be cumbersome.  
(B) Example in the book had to do with seatbelts. The National Highway Traffic Safety Administration required that all vehicles be designed with an ignition interlock in which the car would not start unless the front seatbelts were fastened. The public launched a full scale revolt and congress responded by passing a statute overriding the agency’s mandate.   
ii.      Legislative Vetoes
(A)Because statutory overrides have to pass the House and the Senate and the President, they may be cumbersome. Thus, another way for congress to control agency action is by legislative vetoes. Through this method, congress, in the agency’s organic statute, gives the agency discretion that is conditional on subsequent approval, or lack of disapproval, by Congress, the House or the Senate alone, or even legislative committees. This can be done to the agency’s organic statute when it comes into being or through amending the organic statute.   
(B) Immigration & Naturalization Service v. Chadha—p. 101;
(1)   The Supreme Court dealt the legislative veto a powerful blow. The court held that a one-house legislative veto violated the presentment and the bicameralism requirements of the U.S. Constitution. Chadha stayed in the U.S. after his visa expired. The INS held a hearing for Chadha to show cause as to why he should stay in the U.S. Chadha filed an application for a stay of deportation. The immigration judge granted the stay and the Attorney General recommended suspension of Chadha’s deportation in a report and sent that report to congress. The INS’s organic statute gave congress the power to veto the report made by the attorney general. A resolution to kick Chadha out of the U.S. was proposed before congress passed to the House of Representatives for a vote. The House of Representatives voted and the resolution was passed without debate. Because the resolution was treated as an action taken pursuant to the organic statute, it was not treated as an Article I legislative act and therefore it was not presented to the Senate or the President. The Court said that the House was without constitutional authority to pass this resolution without submitting it to the Senate and the President. The Court identified that the U.S. Constitution provides only 4 instances where congress can act without bicameralism. They are: 1) Article I § 2, cl. 6, impeachment in the house, 2) Article I § 3, cl. 5, impeachment trials in the Senate, 3) Article II § 2, cl.2, presidential appointments by the Senate, and 4) Article III § 2, cl. 2, treaty ratification by the Senate. The Court said that the statutory provision granting the veto was a convenient shortcut.       
iii.    Back to the Statutory Drawing Board
b.      Appropriations
c.       Legislative History
d.      The Scholarly Debate
C.     Article II & the Appointments Clause
1.      Language
a.       [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of the Departments. 
2.      Breakdown of the clause
a.       Principal officers
i.        These include ambassadors, consuls, federal judges and others classified as principal officers under the Edmond test.[2] ii.      Congress has no choice. Appointment must be by the president with Senate approval.
b.      Inferior Officers
i.        Congress has a choice.
(A)Follow the default rule: Appointment by the president with Senate approval, Or
(B) Vest the appointment power in the President alone, in the courts, or in the heads of department.
c.    

r, that circumstance is not dispositive because Congress may simply have wanted to have a say in the appointment of an important inferior officer.
iv.    Similarly, if congress established by statute that an official “shall be appointed by a head of department,” that may indicate that Congress believes the official is an inferior officer.
4.      Second Issue—1st Appointment, Responsibilities Added, Need New Appointment? ON EXAM
a.       More precisely, say that an officer has been appointed in accordance with the Appointments clause, but then new responsibilities are added. Does that person now need to be re-appointed?
b.      Weiss v. United States—p.148;
i.        The Court assumed that commissioned officers in the military were inferior officers. As inferior officers, they were properly appointed pursuant to the Appointments clause because they were appointed by a Department Head. Commissioned officers make up the pool of applicants for military judge positions. When a commissioned officer is appointed to the military judge position, there is no new appointment. The argument is that when a commissioned officer takes on the new responsibilities of a military judge, there must be a new appointment, and because there was no new appointment, the judge has been unconstitutionally appointed. 
ii.      The Court said that no new appointment was necessary. The test is whether the new position’s tasks are “germane” to the old position’s tasks. In this case, both commissioned officers and military judges had similar responsibilities. Therefore, no new appointment was necessary. Shoemaker v. United States. 
5.      Third Issue—Removal of Agency Officials
a.       Other than impeachment language, there is nothing in the Appointments Clause regarding removal of non-elected executive officials by the President or Congress.
b.      The lack of an explicit removal clause can mean any of the following:
i.        Because impeachment is the only mode specified in the Constitution, it is the only way to remove an officer. (This may be too difficult and may force government to stay with an incompetent person until the Senate decides to impeach).
ii.      Removal is an executive function and only the President has the power to remove because he is the executive under Article II. This is the law, pursuant to Congressional action in 1789 (one vote majority).
iii.    Senate and the President should be involved in removal because this is a mirror image of the Appointments Clause. (This may be too cumbersome).
iv.    Congress can use its necessary and proper power to specify the process of removal. (This may give Congress too much authority).
c.       Myers v. United States—p.154;
i.         Congress enacted a statute that provided that postmasters shall hold office for four years, unless sooner removed or suspended according to law, and that they may be removed by the President “by and with the advice and consent of the Senate.” Postmaster Myers was removed before the expiration of his term by an order of the Postmaster General and sanctioned by the President. The removal was not in accordance with the statute.
ii.      Appellant, the administratrix of postmasters Myer’s estate, sought review of a judgment that rejected a claim for the postmaster’s salary where he was removed from office before the expiration of his term by an order of the President, without the Senate’s approval, in contravention of the statute.
iii.    The Court held that in the absence of a constitutional or statutory provision otherwise, the President could by virtue of his general power of appointment remove an officer on the ground that the power of removal inhered in the power to appoint, even though he was appointed by and with the advice and consent of the Senate, and notwithstanding specific provisions for his removal for cause. Thus, the Court held statute which the restricted the President’s power to remove postmasters violated the Constitution and was invalid.
d.      INDEPENDENT AGENCIES—Humphrey’s Executor v. United States—p. 156;
The issue in this case w
[1] In Skinner, the Court rejected the argument that a stricter non-delegation standard should apply in taxing cases. In Touby, the Court rejected a higher standard in the context of criminal law (Attorney General could designate controlled substances).
[2] See below (difference between principal and inferior officer).
[3] In Freytag, the Court held that Tax Court special trial judges were inferior officers and could be appointed by the Chief Judge of the Tax Court (a Court of Law). The phrase “heads of departments” in the Appointments Clause refers to Executive Branch officials. The Court was divided on this last part—4 Justices say that a department head can be non-executive and would deem the Chief Judge to be one.