I. THE LEGISLATIVE CONNECTION
Statutory Vagueness and Its Antidotes
The (Non)delegation doctrine
RULE: Congress can delegate quasi-legislative power as long as it gives the agency (or official) an “intelligible principle” to follow in exercising that power (see JW Hampton v. United States)
Reasons for Congress to delegate to unelected administrators power to prescribe general rules defining rights and obligations of citizens?
Concern for inefficiency of the legislative process. Agencies can act more expeditiously
Legislative process is set up to make it difficult to legislate.
Agencies have more expertise and specialized knowledge giving them a significant advantage over Congress
Congress does not have time to deal with every problem
Experiential learning: Given the time constraints on Congress and the fact that Congress does not administer the statute means it is easier for agency to figure out how the law works and the best ways to implement.
The Nondelegation doctrine prohibits the excessive delegation of discretionary powers by Congress to federal agencies and the President. The Constitutional basis for this doctrine is the first sentence of Art. I, which provides that only Congress may exercise legislative power. (“vesting clause”)
Some Background: Early cases held that Congress may not delegate its legislative authority to other branches of government. However, some early cases DID allow for Congress to delegate power on the ground that Congress made the legislative decisions and the executive branch was “filling in the details.”
The Intelligible Principle Test: In order to pass muster under the Nondelegation doctrine, Congress must provide an intelligible principle to which the agency or executive entity must conform.
Under the intelligible principle test, agencies are actually permit a great deal of discretion to exercise legislative power, especially in comparison to the “filling up the details” standard.
Only cases in which Congress has struck down legislation under the Delegation Doctrine (both during the New Deal, indicate the skepticism with which the court looked at many of the new deal programs) à Panama Refining Co. v. Ryan & Schechter Poultry
Both of these cases concerned the NIRA, which contained only broad statutory purposes and allowed the President to decline to take action under any set of circumstances and permitted private groups to draft codes. Court also faulted NIRA for failing to require a public process for the formulation and approval of the codes.
Carter v. Carter Coal: Court struck down a statute that authorized coal producers to elect local boards with power to set minimum prices for coal in their districts.
HELD: Characterizes the power as “legislative delegation in its most obnoxious form for it is not even delegation to an official or an official body . . . but to private persons whose interests may be and often are adverse to the interests to others in the same business.”
Return to a Lenient Nondelegation Doctrine
Yakus v. United States: Court upheld a delegation to an agency to fix “generally fair and equitable” rent and price ceilings. Court held that this was a practical necessity and that broad delegations of discretion were permissible so long as discernible boundaries of discretion existed.
The Court’s hospitable view towards delegations of powermay indicate that there is no longer a substantial bar to congressional delegation of discretion to agencies and the President. The Court continues to apply the standard, but always manages to find sufficient legislative guidance to withstand the attack.
So, what is the law in regards to the Nondelegation Doctrine?
1892- Field v. Clark – establishes principle that Congress cannot delegate its authority BUT permitted delegation of power to President to impose tariffs when the President found the need for tariffs.
Filling in the details. If X happens, you do Y, President decides when X happens.
1928- J.W. Hampton v. United States- sets out intelligible principle test
Congress can allow agencies to promulgate regulations provided it lays down an intelligible principle to which the agency must conform.. What satisfies?
Statutes that require Commissions to set “just and reasonable tests”
“Public interest, convenience, or necessity”
1934-35- Schecter Poultry and Panama Refining- dealing with NRA, struck down on Nondelegation grounds- prohibited delegation of legislative power to private entities
– shift in focus – makes sure there is enough in statute so that judicial review may be done in a way to hold agencies to rule of law
Judicial Review: The point of the intelligible principle is so that courts may properly assess whether or not Congress is being followed. Without some intelligible principle or guideline, the Court cannot know if Congress is being followed.
Sun Ray Drive-In Dairy: Petitioner was denied a grocery store liquor license on several grounds including a sufficiency of licenses in the area, and observations that the business was not in fact a grocery
Liquor Commission was granted the power by the Oregon Congress to refuse an applicant if it has reasonable ground to believe that there are “sufficient licensed premises in the locality” or that it is “not demanded by the public interest or convenience”
It was unclear why petitioner’s application was rejected – Court held that the delegation to the Liquor Commission was too vague to determine the validity of the decision as there were no public adopted rules dictating the procedures through which the commission had to make such determinations, and thus the Court could not make a determination on whether the delegation was valid until there was a clear publicly stated policy on which the Commissioner must base any decisions
YOU CANNOT ENSURE CONSISTENCY WITHOUT CLEAR PROCEDURES.
Whitman v. American Trucking: DC circuit permitted the EPA to adopt it’s own intelligible principle to confine its discretion. This case concerned the EPA’s promulgation of NAAQ Standards for ozone and particulate matter. The Clean Air Act (CAA) requires EPA to establish standards “requisite to protect the public health” with an “adequate margin of safety.” DC Circuit remanded to the Agency.
SCOTUS reversed the DC circuit’s decision on the grounds that it was an incorrect statement of the intelligible principle test and EPA’s NAAQs regulations met the discretionary standard set by Congress.
Reaffirmed the intelligible principle test for deciding whether a statute contains sufficient guidance to pass muster under the Nondelegation doctrine
Requirement that the NAAQS be “requisite to protect the public health” with an “adequate margin of safety” easily met the test.
Stevens Concurrence- wants court to admit that the authority delegated to the EPA is legislative in nature à “The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it.”
The Confluence of Public and Private Power
American Association of Railroads v. Department of Transportation (DC Cir. 2013): Train metrics must be set up between public agency and private entity, with disputes sent to arbitrator. Similar to situation in Carter Coal, where SCOTUS held that federal lawmakers cannot delega
t forth factors for decisions to be made on a case-by-case basis. Standards are context dependent and principle is much more nuanced. Pros and cons:
Almost neither overinclusive or underinclusive
Can be unpredictable and dependent on the decision maker.
This can create inequality where two people with the same claim receive different outcomes.
The Decisive Delaney Doctrine
Delaney Clause essentially created an irrebutable presumption that anything that causes cancer in people or lab animals is harm to humans and should be banned. Statute defined presumption, cannot seek to disprove it
Public Citizen v. Young: Dispute over whether de minimus doctrine could overcome the application of the Delaney Clause. Court held that the wording of the Delaney Clause was so rigid as to prevent the applicability of the de minimum doctrine
De minimus doctrine exceptions are typically valid so long as it is applicable to the legislative design.
The Delaney Clause has been reformed since and a formula was created to determine whether to approve a tolerance to a substance that has a carcinogenic effect.
The Statutory Environment of Federal Administration
Statutes Designed to Promote Procedural Fairness and Openness
Administrative Procedure Act: Most important statute in the administrative law framework
Federal Register Act: First general statute addressing the public procedures of administrative agencies. Requires agencies public their rules and procedures in the CFR.
Freedom of Information Act (FOIA): Requires an agency, when requested by ANY member of the public, to make available for examination any agency record that does not fall within any of ten specified exempt categories. Embodies a strong presumption in favor of disclosure.
Government in the Sunshine Act: Obligates agencies headed by collegial bodies (FTC, SEC, CPSC) to provide advance notice of meetings at which agency business is to be conducted and to meet in public unless the members, by majority vote, decide that the subject matter falls within one of nine statutory exemptions.
Federal Advisory Committee Act: Establishes requirements that agencies must follow when consulting groups of individuals who are not public employees, and prescribes how such groups shall proceeds in rendering their service to the agency. Main requirements for creation of an advisory committee are: (1) issuance of a charter, (2) selection of members to assure diverse views, and (3) mandatory expiration. Obligations of established committees are to publish advance notice of meetings and to deliberate in public (subject to Sunshine Act).
Privacy Act: Is intended to provide individuals access to personal information in the government’s possession and to improve the management and security of such records. Guarantees access to any records about an individual in an agency’s possession that are retrievable by name or some identifying symbol.