I. Separation of Powers and Distribution of Administrative Power
a. INS v. Chadha
i. Facts: Chadha and 5 other immigrants were to be granted permanent resident status upon the expiration of their visas to stay in the US by an action of the US Attorney General (executive branch via President’s approval of such an action), but the House of Representatives (legislative branch), after a resolution was brought forth to “put a legislative stamp on the action” in the House of Representatives, the House, without any further discussion in the Judiciary Committee or any copies of the resolution to be made available to other House members, submitted the resolution for a vote. After the House veto, it was not submitted to either the Senate or the President, but INS Judge reopened proceedings and Chadha was ordered deported. The resolution was denied, and an immigration judge ordered Chadha and the others deported. INS agreed with Chadha that the House action was unconstitutional. The Court of Appeals, Ninth Circuit received vast support in the form of amici curiae briefs from both the Senate and the House, and the Court agreed that the House action was unconstitutional. This Court affirms.
ii. Issue: Under constitutional law, does the House of Representatives actions in voting to deport 6 aliens contravene the actions of the US Attorney General’s previous order to allow them to stay in the country when they met the grounds for suspending of deportation?
iii. Rule: Non-delegation doctrine: mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked.
iv. Holding: The move itself was unconstitutional, as the House, by its one house action, took a power of the executive branch (Attorney General Katzenbach) and replaced it with a legislative act, which completely changed the act itself. After going through a lot of originalist context as to the Framers’ intent to create three branches of government, and that the three branches were there in part to check on one another to preserve the sanctity of the powers, and the people. This was a legislative act in nature. This act also, in a sense, overruled the Attorney General and mandated Chadha’s deportation.Congress actually delegated the authority it subsequently took away to the executive branch, specifically the Attorney General, of the authority to allow deportable aliens to remain the US should their case fit the hardship guidelines. Since Congress delegated such authority, the delegation of powers doctrine mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked.The are only four provisions set forth in the Constitution in which only one house of Congress would have to act: initiating impeachments, Senate power to conduct impeachment trials, Senate power to confirm presidential appointments, and Senate’s power to ratify treaties. This further supports the notion that what the legislature’s action was indeed was not an implied power. Congress cannot get around the slowness and tediousness of government, as this is what the Framers intended.
b. Morrison v. Olson:
i. Facts: The House Judiciary Committee began an investigation into the Justice Depart’s role in a controversy between the House and the (EPA) with regard to the Agency’s limited production of certain documents that had been subpoenaed during an earlier House investigation. The Judiciary Committee’s Report suggested that an official of the Atty Gen’s Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the report was forwarded to the Att Gen with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees.
ii. Issue: Whether the Ethics and Govt Act mandating testimony of former officials violated the appointments clause, and the separation of powers doctrine?
iii. Holding: No (1) Act did not violate appointments clause; (2) Act did not violate Article III; and (3) Act did not violate separation of powers doctrine. Appellant is subject to removal by a higher Executive Branch official, she is empowered to perform only certain, limited functions, and the office only has limited jurisdiction. If the appointments had the potential to impair the constitutional functions assigned to one of the branches then the separation of power would be affected. The Language of the Cl. admits of no limitation on interbranch appointments from one branch to another by Congress. Historically there is nothing to suggest the Framers intended to prevent Congress from having that power. Once it is determined Congress has Appt. Cl. power to appoint independent counsel in “Courts of Law,” there can be no A3 objection to the exercise of that power, as the power derives itself from A3. The good cause standard for removal does not trammel the executive branch authority, nor does it burden the President’s power to control or supervise the independent counsel, as an executive official, the Atty Gen retains ability to remove for good cause.
II. Federalism and Preemption
a. Gade v. National Solid Wastes
i. Facts: Illinois enacted two separate and related Acts related to environmental protection. Both require an applicant to provide a certified record of at least 40 hours of training under an approved program ( IL), to pass a written exam, and to complete an annual refresher of 8hrs. Haz. Operators must submit certificate showing a minimum of 4000 hours. OSHA requires workers to receive a minimum of 40 hrs instruction off site, and a minimum of three days actual field experience, plus 8 hrs of specialty training, with 8 hrs refresher annually.
ii. Issue: Whether the IL Hazardous Act and Laborers Act, are pre-empted by the Federal Occupational Health and Safety Act?
iii. Rule: Under the Supremacy Clause any state law, which interferes with or is contrary to federal law, mus
eprive an individual of life, liberty, or property without notice and an opportunity to be heard. Where an agency rule will apply to a vast number of people, the Constitution does not require that each be given an opportunity to be heard directly for the purpose of arguing in favor of or against its adoption. In cases such as this, it would be impractical to allow all individuals affected to offer a direct voice in support of or in opposition to an order. Thus, the Constitution is satisfied by the fact that, as voters, the taxpayers involved exercise power, remote or direct, over those responsible for the order. Accordingly, the judgment of the state supreme court dismissing this suit must be affirmed.
4. Analysis: The result of this case is opposite to that reached in Londoner v. City and County of Denver. However, the apparent conflict between the two cases is explained by the observation that Bi-Metallic involved so-called “legislative” facts whereas Londoner was a case which presented an issue requiring evaluation of “adjudicative” facts. “Legislative” facts are those which primarily involve determinations of broad policies or principles of general application, e.g., whether every tract of land in a large city has been under-assessed for property tax purposes.
b. Choosing between rulemaking and adjudication
i. SEC v. Chenery
1. Facts: a Federal Water Company accused of illegal stock manipulation. The first time this case made it to the Supreme Court (Chenery I), the Court held that the acts committed by the company did not amount to common law fraud and therefore the SEC’s stated rationale for the charges could not be sustained. On remand the SEC charged the company’s officials on different grounds, under its own enabling act. The court used the case as an opportunity to discuss the merits of policy making through adjudication and retroactive rule-making.
2. Holding: The court stated that policy making through administrative adjudication is not necessarily wrong and may be desirable. Adjudication is more flexible than rule-making and allows policy to be made on an ad hoc basis. This flexibility is important where there may be unforeseeable problems, inexperience with the problem, or the problem is so specialized in varied that a general rule would be impossible. Therefore, the choice between rule-making and adjudication lies in the informed discretion of the agency. However, this particular adjudication might be the application of impermissible retroactivity in interpreting the statute because the SEC seems to have decided, based on their actions in Chenery I, after the fact that the officers actions were against the law. But, the type of retroactivity in this case was permissible.
