ADMINISTRATIVE LAW
COVERDALE
FALL 2012
NATURE AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
I. Origin and Mandate of Administrative Agencies
a. Theories of Administrative Necessity/Purpose
i. Public Interest
1. natural monopoly
2. public goods
3. external effects
4. asymmetric information
ii. Public Choice
1. a balance of numerous private and public interests
2. focus on the way preferences will be aggregated through public decisionmaking, instead of how resources are allocated to where they are needed
b. Administrative Process
i. Generally
1. governed by APA as gap filler, by agency enabling acts, and by agencies’ own procedural rules
ii. Rulemaking
1. Informal Rulemaking/Notice & Comment Rulemaking – when an agency exercises its legislative functions by making rules
2. requires the agency to
a. give public notice that a rule is being contemplated and the language or a general description of the proposed rule, and
b. invite interested persons to comment on the proposed rule
iii. Adjudication
1. exercise of judicial function similar to bench trial
iv. Informal Adjudication
1. deciding of individual cases
2. informal procedures normally are established by the agency’s own rules
II. Legislative Control of Administrative Agencies
a. Legislative Authority and Delegation
i. Congress establishes agencies and delegates their power and authority
ii. Non-delegation doctrine: under Separation of Powers, the legislature may delegate its powers to an agency only under carefully controlled conditions which are set out in the agency’s enabling act.
1. Wayman v. Southard: Due to necessity and history of agencies, Congress may provide an outline for the agencies and leave it to them to “fill up the details.”
iii. Congressional delegation to an agency to take action requires providing an intelligible principle
1. only twice did USSC find that congress did not give intelligible principle
a. Schecter Poultry: USSC overruled congressional permission to give some chicken industry codes of competition the force of law.
b. Panama Refining: USSC overruled congressional delegation to Prez to prohibit trade of interstate petroleum beyond state quotas w/o limiting his discretion to establish those quotas.
c. Carter Coal: USSC struck down authorization to coal producers to elect local boards w/power to set minimum prices as giving private individuals a legislative power.
2. Agencies are traditionally within the executive branch, or at least under some executive control, so they cannot exercise lawmaking powers outside of their congressional delegation
3. Under current law, relatively general statutory purposes or broadly stated instructions to agencies will supply an intelligible principle and thus meet the requirements of the nondelegation doctrine. See Benzene Case.
4. Bowsher v. Synar: USSC determined that GAO could not make executive branch decisions because it was part of the legislative branch; relied on Prez’s lack of authority to remove Comptroller General.
iv. Whitman v. EPA: Reversed DC Circuit’s order for EPA to create its own intelligible principle and limit its construe its CAA authority narrowly; upheld EPA’s determination of air quality standards under CAA statement that NAAQS are “requisite to the public health.”
1. The proper standard of review in a delegation challenge is to determine whether Congress had legislated an “intelligible principle” to which the agency decision-making must conform, or whether the statute was so broad and lacked any standard as to be unconstitutional.
v. Solving Delegation Problems
1. Threshold:
a. What is the standard set out in the statue, if any?
b. To whom is the decision-making power given
i. Congress may not give legislative power to private entities
b. Delegation outside the Executive Branch
i. In creating independent agencies, Congress cannot delegate removal power to the President.
ii. Other examples of delegation across branches; separation of powers issues
1. Humphrey’s Executor: Independent status of FTC prevents president from removing its chairmen.
2. Buckley v. Valeo: Invalidated congressional reservation of power to appoint several FEC chairmen.
a. Congress may not appoint administrative officials.
b. but may appoint officials who merely aid legislation, such as Congressional research officers; can’t delegate any power to them
3. Bowsher v. Synar: Congress not permitted to give executive power (decision over budget) to a legislative officer comptroller general
a. Congress may not participate in removal of administrative officials
b. but can restrict removal to “good cause.” Morrison v. Olson
4. INS v. Chaddha: Struck down congress’s attempt to delegate veto power to itself.
5. Mistrett v. US:
6. Clinton v. NY: Struck down line item veto as legislative delegation to President.
a. Congress may not give the president power to draft laws or affect laws outside of Const. limitations
7. Morrison v. Olson: Permitted Cong. Jud. Comm. to make non-binding suggestions to USAG for independent counsel.
a. Prez. cannot fire that person because he is inferior officer, only USAG can fire him.
8. MWAA: Struck down veto power of congressional committee over congressionally-created Metro DC air transit authority.
a. Members of Congress may not serve as administrative officials under the Incompatibility Clause (Art I, s. 6, cl 2), and under doctrine of Separation of powers
c. Legislative Veto
i. Defined: Congress reserves the power to reject an agency action with a vote, depending on the particular provision, of both houses of Congress, by one house, or by a single committee. Leg vetoes are not presented to the President.
ii. After INS v. Chadha, legislative vetoes unconstitutional
1. 3 Const. Provisions at Issue:
a. Leg powers Clause that vests legislative power in the two houses, together
b. First Presentment Clause that requires a passed bill to be presented the President;
c. Second Presentment Clause that requires the president’s signature or a 2/3 veto-overriding vote in each house
2. A leg veto is the exercise of legislative power
a. both presentment clauses are violated
b. Buckley v. Valeo: Whether actions by either house are an exercise of legislative power depends not on their form but upon whether they contain matter which is properly to be regarded as legislative in character
c. Legislative Power alters legal rights, duties, relations of person, all outside the executive branch. Chadha.
d. Congress may not reserve a check on delegated authority.
3. 1-house veto
a. violates bicameralism of Leg. Powers Clause, and
b. violates Presentment
iii. Congress may pass a joint resolution and present it to the president to override a major agency final action – not struck down by Chadha because Leg Powers and both Presentment Clauses are still obeyed.
1. appeared in Gingrich’s Contract w/ America Advancement Act
2. sunset provisions are also permitted
d. Appropriations and Line Item Veto
i. Economic influence of Congress over Agencies:
1. size of appropriation
2. specificity of the budgetary category
a. more general delegation = greater leeway for the agency to determine what to do w/it. Lincoln v. Vigil
3. riders placing additional constraints on agencies beyond enabling act
a. extra hoops required in order to get certain sums
ii. Congress may not vest President w/Line Item Veto
1. Clinton v. New York: USS
urpose of insulating FTC was its quasi-legislative and quasi-judicial powers and functions
2. The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power.
iii. Congress can limit President’s firing power and can insulate agencies from the President.
1. Humphrey’s Executor v. US: Upheld provisions that insulated FTC comm’r from firing; 7-yr term appointments w/firing only for “inefficiency, neglect of duty, or malfeasance in office”; Congressional purpose was to insulate FTC from the Prez.
2. Wiener v. US: Said Prez. could not fire War Crimes Commissioner because the body was essentially a court and firing would cause undue influence on that body.
iv. Congress may not remove an executive officer without going through the impeachment process, nor may it give executive duties to a legislative officer, subject to its removal.
1. Bowsher v. Synar: USSC forbade Congress from firing legislative officer who carried out executive functions.
a. Congress may not delegate executive power to an officer who is subject to control of Congress
2. Morrison v. Olson: Indep. Counsel could not be fired but for “good cause.”
c. Independent Counsel and the Accounting Board
i. Office of Independent Counsel was enacted to investigate ethical violations in the government upon a report to the USAG of malfeasance or misfeasance.
ii. Morrison v. Olson: Held that Prez. had now power to fire the Indep. Counsel, as this person was not an executive agency officer.
1. Exec. power to fire does not turn on whether an officer is purely executive
2. Congress may restrict the removal of an official exercising a purely executive function.
iii. The President may not be restricted in his ability to remove a principal officers.
1. Free Enterprise Fund v. PCAOB:
a. Cannot take from the president the power to fire absent cause and the power to determine whether cause exists
d. Supervisory Powers
i. Steel Seizures: 3 categories of power
1. Express or implied grant of power from Congress – Maximum authority
2. Contrary to the express or implied wishes of Congress – Lowest authority
3. Zone of Twilight – no Congressional action; Prez. has independent powers that are likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law
ii. Foreign affairs power
iii. Congress often allows Prez. to reorganize certain agencies or groups of agencies
iv. Executive Order
1. Prez. has inherent authority to manage the executive branch, but does not have authority to issue executive orders that are contrary to law. Chamber of Commerce v. Raich.
2. Prez. has an obligation to supervise and guide Executive officers in their construction of statutes under which they act in order to secure that unitary and uniform execution of laws which the Constitution contemplated in vesting executive powers in the Prez. alone. Myers.
