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Administrative Law
Southern Illinois University School of Law
McCubbin, Patricia Ross

I.            Separation of Powers: Who Controls Agencies?
a.   Removal Powers- (Bowshar) Congress cannot retain removal power over an agency head BECAUSE the legislature makes the laws and the executive implements them.
                                         i.    Congress only has impeachment power
                                        ii.    Independent Counsel-(Morrison)
1.   Facts: Congress limited the Pres. Power to remove independent counsel.
2.   Rule: It is CNAL for congress to limit the Pres. Removal powers.
3.   Policy: Separation of powers is to diffuse power to ensure secured liberty.
II.        Non-delegation Doctrine: (note: adjudication not subject  to NDD)
a.   Congress can delegate power to agency to make rules.
                                        i.    Agency can only act within the bounds given by Congress.
                                      ii.    The basic doctrine of Admin Law is “Ultra Vires” which means unauthorized, or beyond the scope of authority granted by law. When an agency steps outside of the boundaries=action invalid.
b.   What is the non-delegation doctrine (NDD)?
                                        i.    Governs agencies ability to rule make. Art 1 Sec. 1 of the constitution gives congress the power to legislate. Congress then delegates that power to agencies to govern specific areas.
                                      ii.    General rule: a delegated power should not be re-delegated. So congress technically should not be delegating is rule making powers to agencies.
                                    iii.    Exception: Powers delegated are technically not legislative powers they are “administrative” or “quasi-legislative” powers.
c.   Purpose of NDD?
                                        i.    Provides safe guards for the amount of power congress can delegate.
                                      ii.    Congress may delegate in 4 situations:
1.   Specific delegation with a “gap” for I nterpretation by agency.
a.   Too much of a “gap”make delegation UNCON.
b.   The more general the delegation is the more authority and leeway the agency has.
2.   General delegation
3.   Make rules necessary to…. ( serve some purpose)
4.   Regulate “in the public interest”.
                                      iii.    How do we know if delegation is permissible?
1.   Rule: It is CON for congress to assign agencies rule making authority if congress provides an intelligible principle to guide agencies discretion in rule making.
2.   Look to Intelligible Principle Test (Misretta). Does the action set forth MORE than an intelligible principle or minimum standards? Legislation MUST contain 4 FACTORS:
a.   The name of the agency
b.   Boundaries of the delegation.
c.   Articulate the task (action to be taken) by the agency
d.   The factors for the agency to consider (not mandatory, but often will see in legislation)
e.   The general policy (goals/purpose of legislation)
3.   Panama rule: When congress delegates legislative authority to an agency the legislation MUST provide a stand for the President’s standards. Must be narrowly construed to state whether or in what circumstances or under what conditions the President is to exercise authority.
                                      iv.    Does the NDD have any teeth?
1.   Minimal. Mandates congress follow intelligible principle test. Congress cant delegate all power to the Pres and adjorn. Leaves LOTS of discretion to the agency.
2.   Only been used twice to strike down law.
3.   INSERT EPA EXAMPLES FROM WEEK 2 NOTES. Also look to practice problem.  
On Exam: Analyzing non-delegation doctrine questions on exam: For non-delegation doctrine, analyze first through Mistretta, then analyze under American Trucking separately.  Note you might get a different result from analysis under each case.
III.       Judicial Power
a.   Article 3 of the Constitution provides: Judicial power is vested in a court w/judges who have:
                                         i.    Life tenure-not subject to political pressures.
                                        ii.    Salary not diminished during office

ake policies they should get the input of the public.
1.   Exceptions: does not apply to interpretive,policy, or procedural rules. (553)(b)(3)(A)
a.   Military of foreign affairs.
2.   WHY these expections?
a.   Policy: Does not rest upon legislation w/meaning.
b.   INterprative: restates or explains an existing rule. Not issued legislatively.
c.   Substantive with Good cause:
                                                                                         i.    Impractical: changing tariffs weekly, would be impractical to require weekly notice and comment.
                                                                                        ii.    Unnecessary: typos
                                                                                      iii.    Contrary to public interests: emergency (SARS/hurricanes ect…)
d.   Procedural
d.   Procedures of APA under 553
                                         i.    Notice
                                        ii.    Comment: by interested public.
1.   If no comment is made on the rule, when the time comes for it to be challenged in court they will be unable to raise the issue if not comments have been made on the issue. (not a problem anymore thanks to the internet.)
2.   Agency MUST consider the comments
3.   Respond to all major (non-trivial comments)
a.   Explain why they agree or disagree with comment.
4.   Must publish final rule in Federal Register. Should look different that proposed rule after the notice and comment period.
5.   Whatever the agency wants tp use to justify this rule MUST be written down and included in the record. Judicial review will require the opportunity to review these documents.