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Administrative Law
Rutgers University, Newark School of Law
Bell, Bernard W.




I. Overview

A. Origins and Roles of Aminstrative Agencies

a) Agencies can legislate as long as a law is created through bicameralism and presentment to delegate that power. Even though the President and Congress cannot go outside of bicameralism, Agencies can and it is seems to be a necessity of our modern society that would like to bring to bear their expertise.

B. Functions of Agencies

C. Public Interest Theory and Public Choice Understanding of Admin Law

II. Separation of Powers and Distribution of Administrative Power

A. The Non-Delegation Doctrine

1. Why Not Delegate?

a) Congress Article I – Make the laws and a check over Exec in power of the purse check over Judiciary with the approval of judges. They have to make value judgement because they are the closest to the people

b) Why would they delegate the legislative power? Time management, Sometimes it is useful to start with the rule and then flesh out a general policy, Matter of expertise

(1) Illigitamate reasons? Legislators could avoid political heat. A way to get things done when you cannot get concensus on an issue

2. Origins

a) Early cases stated that the Constitution absolutely prohibited the delegation of legislative authority from Congress to the Executive branch. Delegation of discretionary authority to Exec branch was permissible as long as Congress made the legislative decisions and the agencies merely filled in the gaps. Field v Clark (1882)

3. Intelligible Principle Test

a) J.W. Hampton Jr. & Co. v. U.S. (1928) – the court said delegation is permissible when Congress “lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform.” The “intellegible principle” remains the test for determining whether Congress has delegated too much legislative discretion to the executive branch.

4. Delegation During the New Deal

a) The Supreme Court was skeptical of New Deal legislation it struck down three federal statutory provisions on nondelgation grounds.

b) Panama Refining v Ryan (1935) – pg 74 – There are limits of delegation which there is no constitutional authority to transcend. Although the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, Congress is forbidden to delegate the essential legislative functions which it is vested by Article I, §1 and Article I, 8. The legislation granted broad enforcement powers without specifying when enforcement was required.

c) Schechter Poultry v U.S. (1935) – pg 75

(1) Facts: Section 3 of the National Industrial Recovery Act empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The codes had standing as penal statutes.

(2) Question: Did Congress unconstitutionally delegate legislative power to the President?

(3) Holding: The Court held that Section 3 was “without precedent” and violated the Constitution. The law did not establish rules or standards to evaluate industrial activity. In other words, it did not make codes, but simply empowered the President to do so. A unanimous Court found this to be an unconstitutional delegation of legislative authority.

d) Carter v. Carter Coal Co. (1936) – Power was granted to private groups, trade associations. It is a delegation problem when codes are set by industry.

5. Return to Lenient Non-Delegation Doctrine WWII

a) Beginning 1940’s to present time, courts have been very lenient with the Non-delegation doctrine, reqiring only a minimal intelligble principle for a statute to withstand a non-delegation attack. Eventhough court sill go through the analysis, they always find sufficient legislative guidance to withstand attack.

b) Yakus v. U.S. pg76 – Set prices during WWII. There was a shift from making sure that the leg. sets policy to ensuring that we have statues that are sufficiently clear so that the courts could do sufficient review.

6. Benzene and Non-Delegation in 70’s and 80’s

a) Sunray Drive Ct of Ap OR (1973) – Petitioner applicant appealed a decision from the Oregon Liquor Control Commission, which denied its application for a liquor license for its store.

(1) The court held that a legislative delegation of power in broad statutory language such as the phrase “demanded by public interest or convenience” placed upon an administrative agency a responsibility to establish standards by which that law was to be applied. The court reversed and remanded the order.

(2) A legislative delegation of power in broad statutory language such as the phrase “demanded by public interest or convenience” places upon the administrative agency a responsibility to establish standards by which that law is to be applied. Unwritten standards and policies of an administrative agency are no better than no standards and policies at all. Public is entitled to consistency of enforcement from agency, and that situation cannot be achieved in absence of written standards. Agency and applicant are entitled to know what they are required to prove and disprove in order to gather and present their evidence. It is not for the court, but for administrative agency with its statutory mandate and its expertise, to develop standards.

b) Amalgamated Meat Cutters v Connally U.S. Dist. Ct., D.C. 1971- Congress passes an Economic Stabilizaation Act of 1970 delegating to the president the authority to set controls on prices, rents, etc. The AMC are challenging the constitutionality of the act.

(1) Issue: Is this an unconstitutional delegation of legislative power? More narrowly: does the legislative description of the task assigned sufficiently mark the field within which the administrator may act, so that it may be know whether he has complied with the legislative will?

(2) Holding: No (to the broad formulation; to the narrow one: yes)

(3) Rule: Congress can’t delegate unlimited authority to the Executive.

(4) Reasoning: There are limits here: “broad fairness” and “gross inequity.” There is also a time limit. Congress is free to delegate, as long as it exercises the essentials of the legislative function: determining the basic policy, and formulating a rule of conduct. The purpose is to have some control over what takes place, and some accountability for the policy making. We have all of that here.

(5) Notes from class: There was a direct correlation between the ammount of legislative power and judicial review. The more judicial review the more judicial power you get.

c) Industrial Union Dept. AFL-CIO v. American Petroleum (1980) A hint of strict non-delegation was in the Benzene case, where both the plurality and the concurring opnions argued that standardless procecustorial discretion under OSHA create non-delegation problems.

(1) Rehnquist concurrence said that the non-delegation doctrine should be revived. It serves 3 goals.

(a) Forces Congress to make important policy choices

(b) Increases guidance under which agencies act

(c) Facilitates judicial review by requiring more definite statutory standards against which courts can measure agency decisions.

7. Attempted Revival of Non-Delegation Doctrine: Whitman v. American Trucking Congress can’t delegate legislative power but they can delegate the filling in of the gaps. Since the Benzene case the Court has rejected several delegation challenges.

a) Whitman v. American Trucking (D.C. Cir 1999) – Congress can delegate the power legislate. Don’t call it legislation and must have an intelligible principle.

(1) §109 of Clean Air Act grants EPA power to set air quality standards and review them every five years. Court found a violation of the delegation doctrine not because the statute lacked an intelligible principle but because the EPA had not adopted an intelligible principle to confine its own discretion. The SC reaffirmed the intelligible principle test and rejected the idea that the agency can fix a delegation problem simply with its own limiting construction. Leaving it to the agency to decide on a limiting construction should itself be a non-delegation violation. Bottom line: Court will be deferential to Congress.

(a) J.W. Hampton v U.S. (1928) – Intelligable principle standard. This kind of case falls within what this court has considered appropriate and “in the public interest” Two step process for the intelligable principle here.

i) 1) How much is unsafe AND 2) The decrease that level “adequate level of safety”

ii) If the statute identifies a factor that the agency has to sort out or consider anything you want except this. Both of these would be considered intelligable principles.

(2) Stevens’ Concurrence (joined by Souter): power delegated is legislative but within limits and thus constitutional. If same standards had been issued by Congress, everyone would agree they were legislative.

(3) Thomas: Constitution does not speak of “intelligible principles.” Could be case where intelligible principle exists but too much power has been delegated.

b) What about TARP?

(1) Context is Emergency

(2) No judicial review here.

(3) Risk of litigation is low WHY?

(4) The Freedom Work folks had a pretty good argument

(a) A ton of money

(b) Seems like they can do anything they want.

(5) The actual statute The Economic Emergency Stabilization Act of 2008

(a) Defintions got more broad. §3 (9) a and b

(b) In the Statute there is judicial review added, the power is granted gradually, review by a committee,

B. Statutory Precision

1. The flip side of delegation. In delegation we were concerned with delegated power through legislation that was too broad. The Delany Clause – Basically there is not enough power. So precise that is it vulnerable to changes.

2. Rules v. Standards is solution. Goodman (Rules) and Pokora (Standards).

a) Rules describe the treatment of a person without much leway.. Standards are an all things considered approach

b) Rules – Rules provide precise prescriptions that do not vary greatly according to the situation. Under and over inclusive. Force you to decide on things that you don’t want to. “We have zero tolerance for. . . “ ex: the Brady bill had a very precise definition of an automatic firearm such that a firearm could be modified to fit within the law

c) Standards -Standards set forth factors for decisions made on a case-by-case basis You can decide each case with a governing rationale. Problems being Uncertain you don’t know how it will come out until you get a decision. Cannot plan actions. Inequality – two identical cases can come out differently.

d) The Rules/Standards Dilemma – Bell’s writing on the matter

(1) Criminal law example in the 1950s, the constitutional limits on the interrogation of suspects took the form of a standard. The Supreme Court held that the Constitution prohibited police from coercing confessions from criminal defendants, and that the question of whether such coercion had occurred turned on numerous factors. In Miranda v. Arizona, the Court converted that standard into the following rule: the Constitution prohibits the police from interrogating suspects without advising them of their right to remain silent, their right to counsel and the potential use of any statements against them, no matter how well the defendants are otherwise treated. Scholars vigorously debate the relative merits of standards and rules, i.e., the appropriate level of specificity of law. Rules tend to be both over-inclusive and under-inclusive in relation to their rationales. In other words, rules either cover situations or people that do not pose the harm that the rule is intended to prevent, or they do not cover situations or people that the statute is intended to reach. A change in circumstances can render precise rules ineffective or even harmful. Also, precise rules allow evasion.

(2) Finally, although rules make law determinate, and thus easy to ascertain by citizens and easy to construe by judges, they may do so by treating dissimilar people similarly. Standards frustrate the rule of law. They undermine citizens’ interests in knowing their rights and responsibilities before, rather than after, they act. Moreover, standards create the possibility that similar people will be treated differently.

e) Rules and Standards and the Precision Problem

(1) Irrebuttable presuptions – A presumption infers from one fact the presence of another. And here a statute can create a situtation wherein there is no opporunity to present an affirmative defense.

(a) Why use this? Ex. giving in-state tution discounts and thereby have to figure out who is a resident. A statute is passed that requires residency in the state two years prior. If you spent all times in the state no ma

o the Comptroller General did violate the doctrine of separation of powers and were unconstitutional.

ii) A two step process led Chief Justice Burger to arrive at this conclusion.

(1) First, in exploring the statute defining the provisions of the Comptroller General’s office relating to the Congress’s power of removal, it was clear to Burger that this officer was subservient to the legislative branch.

(2) Second, in examining the functions that this officer would carry out under the Deficit Control Act, Burger concluded that the Comptroller General was being asked to execute the laws and, thus, was intruding on the prerogatives of the executive branch.

(d) Concurrence- There are three boxes – Executive – Q-Legis, Q- Judicial. This is unduly formalistic. A lot of gov functions overlap. We need to look at who excercizes the power. If Congress does an act it is legilative, etc.Who does the act indicates which branch of power they belong to. The power of removal is not necessary or sufficient to determine what kind of power the person is executing.

(e) Dissent White – The act should have been upheld. Determining the level of spending by the federal government is a legislative function, not an executive one,. Even if the power were executive there is nothing wrong with delegating that power to an agent as long as Congress can only influence him by a means that is subject to the Presentment and Bicameralism Clause requirements, which the act satisfied, since the Comptroller General can only be ‘influenced’ by Congress through a joint resolution.

(f) This satisfies the Chada requirements for legitimate legislative action.

(g) Notes from class

i) This person is a person who can be removed from Congress so therefore they cannot be an Officer of the United States.

ii) An argument could be made that the controller is just the acountant.

iii) The answer the court gives is the excersing judgement over the act and interpreting the act is executing the law.

b) Removal

(1) Congress can restrict the President’s removal of an official if by doing so it would not interfere with the President’s exercise of the executive power and his constituitonal duty to take care the laws are faithfully executed. After Morrison v. Olson (Nixon’s scandal and the investigators) Congress has a broader power to restrict Presidential removal powers. If the removal restrictions do not violate general separation of powers norms (and do not expressly violate the Constitution), they are permissible. Old rule under Humphrey’s Executor and Myers – Congress may restrict removal only when the official excersises quasi-leg or quasi-judicial functions and not when the offical was purely executive. However, Morrrison abolished these rigid distinctions. The question is whether the removal restriction impermissibly interferes with the President’s authority or duty.

(2) Myers v. United States (1924) RULE: Congress can never do anything to limit the power of the Executive to remove an Executive Branch Subordinate.

(3) Humphrey’s Executor v. United States SCOTUS (1935) – The dividing line when Congress can proscribe the Presidents removal power is when the position is a commission. Quasi-legislative or judicial Congress can. There is a two prong arg.

i) Body of Experts – The court assumes that there can be a body of experts that are impartial. This reasoning is not really sound anymore.

ii) The longer lasting arg: The FTC is not purely executive. They have quasi-legislative power and quasi-judicial power so this is not executive power. We can divide the role into these boxes and put a “for cause” limitation on removal.

(4) Morrison v. Olson SCOTUS (1988) “Response to Watergate” “Rule: Congress can have a role in proscibing the President’s removal power when it does not unduly interfere with the President’s proper execution of his Article II powers. This blows up the distinction of the dutites of the bueaucrat, Purely executive or quasi-legis/judicial. BUT WE DON’T KNOW WHAT IT MEANS TO UNDULY IMPEAD THE POWER. Also Article III permits federal judges to excercise ministerial functions not traditionally limited to the executive branch.

(5) Free Enterprise Fund v. Public Company Accounting Oversight Board (D.C. Cir. 2008) – “Latest SCOTUS case on the appointment issue.

(a) Sarbanes-Oxley created the Public Company Accounting Oversight Board under the SEC to oversee the audit of public companies that are subject to securities laws.The Board’s five members can be removed by SEC only for good cause. They can only find cause after hearing. The removal order is subject to judicial review. The SEC has direct control over the adjudicatory powers over PCAOB. To remove SEC there is a Humphrey’s Executor standard of good cause when not Exec.

(b) The problem is the double protection. Good cause for SEC then good cause for the PCAOB. The court sees the two degrees of good cause protection is unconstitutional. The president’s power is impaired. Contravenes Art. II power vested in the President. Diffusion of power, diffuses accountability.

(c) Dissent argues a functional approach. There is no aggrandizement here.