ADMINISTRATIVE LAW – Prof. Poirier
I. Introduction
a. Most agencies are considered part of the Ex. Branch so they are under the direction/control of President.
i. Independent Regulatory Agencies – outside of Ex. Branch and about 15 of them. (FTC, SEC, FCC, NLRB, NRC, Fed. Res.) (1) headed by multi-member groups rather than a single agency head, (2) no more than a simple majority of these members may come from one political party, (3) members of group have fixed, staggered terms, so they do not expire at same time and (4) can only be removed from their positions for “cause” unlike other ex. Officials who serve the President.
1. Their independence is a product of history and culture, not law. Congress may have created them with intent to be more independent.
b. Agency Purposes – execute the laws that Congress passes.
i. (1) Regulating private conduct, (2) disbursing entitlements (S.S.), (3) managing federal property, (4) misc. such as taxes, aliens, space, etc.
ii. **Congress in organic stat., may intend agency to have quasi-leg., exec. and judicial powers!
a. Congress has const. power to do so under N&P clause and checks and balances.
b. Ponder: are agencies the headless fourth branch of gvt?
c. States cannot be agents for fed. Gvt. See Printz and NY.à Unfunded Mandates
i. Devolution – transferring previous fed. Responsibilities to states.
d. First federal agency = ICC (interstate commerce commission) à 1887
e. 2 Broad Reasons why we have Agencies:
i. (1) Public Interest – social responsibility to protect the public.
ii. (2) Public Choice – someone with money and influence is using money to get their views/policies across.
f. Woodrow Wilson – science of administration. “Agencies will be neutral.” Agencies will carry the will of Congress.
g. Nondelegation Doctrine – problem when Congress gives vague delegation of power.
i. (1) Executive has power to oversee agencies (Art. II). President faithfully executes the laws and agencies of nation. President can give them executive orders so long as they don’t contradict the stat.
1. Field v. Clark – President can impose tariffs on imports when he was satisfied of need for tariffs.
ii. (2) Congress creates the delegable law (Enabling Acts).
iii. (3) Judiciary interprets the agency law!
1. Usually Congress creates the agency with passage of laws (ENABLING ACT).
2. Congress needs to be specific in the limits in powers and boundaries of agency. à Intelligible Principle!
3. If agency is acting beyond its scope, it is ultra vires.
h. Agencies came about during RR boom (ICC). New Deal bought tons of new agencies to help the infrastructure and economy. 60s and 70s saw emergence of social regulation agencies (deregulation).
i. *Legislative Control over Agencies = Authorization (Enabling Act; Nondeleg.), Control, Appropriation and Oversight.
II. Nondelegation – Const. states that Congress cannot delegate power, but no one follows it. Congress can delegate policymaking so long as the stat. furnished an “intelligible principle” to guide the delegate’s discretion.
1. 2 Issues: whether Congress can delegate (1) quasi-leg. Powers under Art. I, §1 and (2) quasi-judicial powers under Art. III, §1.
2. Intelligible Principle Test – SC allows Congress to give broad rulemaking powers to fed. Agencies.
b. A.L.A. Schechter Poultry (SC, 1935) D controlled 90% of NY’s poultry business & committed improper trade practices.
i. NIRA’s standards are not intelligible principles and thus violate nondelegation doctrine. “Sick Chicken Case”
1. NIRA set very broad boundaries for industry regulation.
c. Carter v. Carter Coal – Congress cannot delegate to private industries to make their own regulations.
d. Yakus – SC chose not to mess with regulations because this is during WWII and don’t want to jeopardize economy. Can set price ceilings for rent.
e. Benzene (under OSHA) – industry needs to show substantial risk and cost benefit analysis.
i. Rehnquist Dissents – only Congress should be able to decide what is safe & feasible; no need for CB analysis.
f. Nondelegation Principle Held Violated:
i. Panama Refining v. Ryan – no intelligible principle for Pres. to ban interstate shipment of “hot oil.”
ii. ALA Schechter Poultry
iii. Carter v. Carter Coal
g. Rehnquist – 3 purposes served by the nondelegation doctrine:
i. (1) Congress must make the important policy choices
ii. (2) Recipients of delegation must get an intelligible principle to guide them
iii. (3) Reviewing courts can test the exercise of the delegation against ascertainable standards.
1. OSHA Case (1981) – Congress must make the difficult policy choices legislatively.
h. EPA Nondelegation:
i. CAA (Clean Air Act of 1970) is the best example of a huge, sweeping regulation of the 60s and 70s.
ii. Act created the EPA and it divided enforcement between EPA and states (SIP – state implementation plans). If state’s SIP was inadequate, then EPA could rewrite it.
iii. *Primary Standard of CAA – EPA must protect the public health with an adequate margin of safety.
1. Secondary Standard – EPA must protect the public welfare.
2. For the primary standard, costs may not be taken into account. Lead Indust. Assoc.
iv. EPA undertakes a review of the NAAQS for ozone in 1994.
i. American Trucking v. EPA (DC, 1999) Revised Ozone regulations
i. EPA failed to create proper criteria for drawing lines and did not have an intelligible principle in revising the new ozone level regulations.
ii. But court rules that the EPA should have opportunity to determine a standard on its own, which is in accordance with 2 of the 3 rationales for the nondelegation doctrine.
iii. Agency must follow the rules that it itself created until it changes.
1. Stat. is too vague – the .08ppm number is too vague.
iv. O. – EPA is given another chance because its regulation is remanded for consideration back to EPA! Normally the agency’s regulation is invalidated and hardly has a second chance to modify it.
1. There is no “intelligible, clear principle” on how EPA got to the .08 number.
v. Dissent: Court threatens to strike down a well-litigated CAA §109 Act.
1. Congress has created intelligible principles by creating CAA as a guideline for EPA.
2. EPA did have intelligible principle by using the latest scientific knowledge (hearings) and it explained the standards it set.
j. Whitman v. American Trucking Assoc. (SC, 2001)whether EPA has power to interpret CAA and revise NAAQS setting and ozone levels.
i. SC almost never second guesses Congress’ stats when it comes to delegation (Only twice!)
1. Order: SC follows precedent and finds proper delegation.
ii. Stevens: strict referral to const.
1. Congress makes the initial rule but can delegate subsidiary power.
2. Neither Art. I and II prohibit delegation of authority to others. Looks at President and members of the Cabinet and federal law enforcement agents! The president delegates power all the time informally.
k. Doe v. Bush – nondelegation powers is weaker when it comes to Congressional war powers.
l. SC has 2 kinds of Review:
i. (1) Constitutional Issues and (2) Federal Statute Interpretation
1. *Intelligible principle cases are Const. Issues (SOP).
m. Benzene Standard – set the standard that most adequately assures, to the extent feasible, on the basis of the best available evidence. This standard is very vague but it passes muster under Intelligible Principle.
i. SC has never demanded that Congress say how much of a regulated harm is too much.
ii. A certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action.
iii. Bottom Line – the intelligible principle doesn’t mean much now.
n. *We still cling to nondelegation because of theory of legitimacy of gvt. Who is to blame and who is accountable? It doesn’t really say in Const. if delegation is const. but now because it is an occurring action, then it is accepted.
o. Mistretta – creation of federal sentencing guidelines commission. Judges are on this comm. and are making rules. This is valid but Scalia claims that this is clear lawmaking that is being assigned to fed judges!
p. Nondelegation Doctrine is a necessary evil. Congress cannot legislate everything!
q. (1) Are agencies better than Congress? (Jerry Mashaw – Yale prof.) à
i. Hierarchical
ii. Experts – but doesn’t Congress have experts in their subcomm?
iii. Politically Responsive to President
r. (2) When Congress authorizes Executive, however broadly, it is exercising the legislative power, not delegating. (Posner and Vermeule)
s. (3) In other words, whatever Congress says is legislative will be valid, so it can never be nondelegation.
t. Only Congress can best executive and judicial officers to act with the force of law. (Thomas Merrill)
u. **Reason why Nondelegation is Dead – SC has been driven by practical (functional) understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate under broad general directives. See Mistretta.
i. BUT, SC is remindful that overly broad delegations of power will be struck down. However, Congress does enjoy broad discretion.
III. Legislative Veto
i. *There are many versions of LV and all of them have been struck down by Chadha.
b. INS v. Chadha (1983)AG power to suspend deportation if alien were to suffer extreme hardship. AG was required to report this to the House every time.
i. Presentment Clause: (Art I §7) – bills are to be sent to Pres. for approval where he can approve it or veto. This means that Pres. and Congress share in lawmaking power.
1. Problem here is that House action would need executive approval.
2. Presentment is a check on the legislature – Alexander Hamilton
ii. Bicameralism: (Art. I §1, 7) – bills are passed by majority of both houses. Presentment Clause is necessary in order to check Congress from passing bad law.
1. All laws must be presented by be passed thru both houses.
a. Laws alter an individual’s legal rights.
iii. Only 4 Const. provisions that allow one house power: (1) House initiates impeachments, (2) Senate’s trial on impeachment, (3) Senate’s power over Pres. appointments, (4) Senate ratifies treaties.
a. These express const. laws show that One House power is NOT to be implied.
2. *Congress is slow and clumsy but it was built that way to ensure
operations comm., which is concerned with agency’s efficiency in coordination with other parts of the gvt.
ii. “Report and Wait” – Congress mandates certain agency to submit a report on a proposed agency action.
b. Public Hearings and Investigation.
i. Anyone in Congress can call for one.
ii. There is always a publicity element and this issue can steer public interest.
iii. Control of Appointments to agencies. Need to be approved by Senate
c. Signing Statements – when Pres. approved bill and writes what he thinks of the bill. It was started by Reagan.
i. Pres. puts his own spin on the bill and it takes away from original intent of Congress’s purpose for creating it.
ii. Why would President do such a thing? Just to make a public statement. Congressmen are entitled to express their opinion on the floor and in leg. history.
iii. ABA Report 2006 – The President must enforce unconst. laws.
1. If President believes any provision of a bill is unconst. he must either veto the entire bill sign the bill and enforce the unconst. provision.
a. Very weird because President DOES NOT have duty to enforce unconst. laws! That is odd.
2. Perhaps President may try to set up a situation where the SC gets to rule on its constitutionality. (But there are no Advisory Opinions!)
3. President can work with Congress to try to resolve const. doubts during the leg. process.
4. There is nothing unlawful about signing statements. The issue is failure to enforce by Pres.
5. Signing Statements create Presidential leg. history (Pres.’ 2 cents)
VI. Executive Control of Admin. Agencies
a. Art. II, §2, cl. 2à Officers are appointed by Pres. and approved by Senate. There is no express language of “superior officers” BUT Congress can delegate power to Pres. to appoint inferior officers.
i. Congress can delegate appointment power of inferior officers to Pres., agency heads, and courts of law.
b. Bowsher – Congress CANNOT appoint itself appointment powers!
i. Congress is silent on removal powers. BUT it can be a N&P power or incidental power (Myers).
ii. Art. II, §1 – Executive Power shall be vested in President (AKA – Enumerated Powers)
iii. Pres. has broad foreign powers BUT his domestic powers are to “take Care that the Laws be faithfully executed.” – Art. II, §3 [“Take Care Clause”]
c. Lately, Congress has tried to increase separation of independent commissions from presidential control.
VII. Appointment Powers – Art. II, §2, cl. 2 – Pres. shall appoint Officers of the U.S.
i. Presidential appointments are done by advice and consent of Senate. Pres., Courts and Heads of Departments can appoint inferior officers alone but NOT Congress.
1. Appointments Clause does not vest any power onto Congress. See Bowsher
b. *4 Ways Congress can const. control agency actions:
i. (1) Appointing admin. Officials, (2) members of Congress serve on admin. bodies, (3) controlling removal of admin. Officials, (4X) legislative vetoes over agency actions, and (5) oversight power.
c. **Principal Officers are appointed by President ALONE (ie./ heads of departments, justices, fed. Judges, heads of independent agencies). Inferior Officers are subordinate to principal officers but have enough authority to not be considered employees.
d. Buckley v. Valeo (1975)After Watergate, Congress created FEC (Federal Election Comm.) that consisted of 6 members to be appointed by certain members of Senate and the President.
i. SC ruled that FEC appointments were unconst. because appointing of such high gvt officials in a different statutory manner than the Const. Appointments Clause cannot happen.
ii. H. – because of significant executive powers, President only has power to appoint, not Congress. (violation of Apptnmnt Cl)
iii. Test – any appointee exercising significant authority in “an officer of U.S.” (superior officer) must be appointed by President under Appntmnts. Cl.
iv. FEC v. NRA – after Buckley, Congress allowed the 6 members to be appointed by Pres. BUT lower court found it unconst. because of presence of nonvoting members of Congress that may have ability to influence voting members’ decisions.
