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

•• Administrative Law Outline

The basic doctrine of admin law is the doctrine of ultra vires, which means unauthorized, i.e., beyond the scope of power allowed or granted by law.
• If an agency act is within the statutory limits (or vires), its action is valid; if it is outside them (ultra vires), it is invalid.

Legislative Power
• Rules and regulations, no less than statutes, lay down patterns of conduct to which those affected must conform.

What is the non-delegation doctrine?
• Delegate: Congress gives certain powers to an agency to govern certain areas.
• The general rule of law that a delegated authority cannot be delegated.
• The people of the U.S. delegate the legislative power to Congress; therefore, according to this doctrine, Congress is the only entity permitted to exercise that power.

What purpose does it serve?
• Powers that are delegated to agencies are not legislative powers; they are, instead, “administrative” or “quasi-legislative” powers.
• The law has not shifted from an unworkable rule prohibiting any delegation of legislative power to one prohibiting excessive delegation – one that does not contain any defined standard, or what the Court calls an “intelligible principle” in the Mistretta case.
• Congress delegates “quasi-legislative” power in 4 situations:
m specific delegation with gap
– Congress cannot leave “too much” of a gap in the statute for agency
m general delegation
m “make rules necessary to . . .”
m regulate in the “public interest”
• The Courts have developed a test of permissibility for delegation of legislative authority to agencies:
m The Intelligible Principle Test: look at whether the act sets forth more than an intelligible principle or minimum standards. Must set goals and the actions to be taken.
m The test is outlined as follows. The legislation must contain:
– The name of the public agency
n If Congress cannot even name the agency, there is a problem.
– The boundaries of the delegation
n Congress has to articulate the tasks (the action to be taken) by the agency.
n The factors for the agency to consider (not mandatory, but will often see in legislation).

– The general policy
n goals or purpose of the legislation

Does the non-delegation doctrine have any teeth?
• Yes, some minimal role.
• It at least mandates that Congress follow the Intelligible Principle Test.
• The doctrine is there to ensure that Congress doesn’t merely delegate its power to the President and adjourn.
• But there is an argument that the doctrine doesn’t have much teeth.
m The tasks required of Congress are very minimal….not difficult at all to accomplish.
m Leaves huge amounts of discretion to an agency where Congress has made none of the hard choices.
m It has only been used twice to strike down a law.

Under what circumstances has the Court used the doctrine to strike down legislation?
• Panama Refining Co. v. Ryan (1935)
m § 9(c) of the National Industrial Recovery Act empowered the President to prohibit the transportation in interstate commerce of “hot oil.” The Court held the delegation invalid because the statute contained only the bare delegation: Congress had not stated whether or in what circumstances or under what conditions the President was to exercise the prohibitory authority. Though the authority delegated was clearly defined, Congress had not set up a standard for the President’s action. Instead, it gave the President an unlimited authority to lay down the prohibition or not, as he might see fit.
m Justice Cardozo dissented. He found the required standard in § 1 of the statute, which declared the policy of Congress that the act was intended to promote: to remove obstructions to commerce, avoid restriction of production, increase consumption, reduce unemployment, rehabilitate industry, and conserve natural resources. According to Cardozo, the President was intended to exercise the prohibitory authority whenever satisfied that doing so would effectuate the policy declared in § 1. This was a sufficient definition of a standard to make the statute valid.
m The majority, however, held that § 1 was too broad to constitute an adequate standard. The goals stated were too general to furnish any real guide on whether and under what conditions the delegated authority should be exercised.
m Both the majority and the dissent agreed that the statute must contain a standard. They differed on how detailed the standard must be.
– The majority refused to accept a standard so broad that it did not limit or guide the delegate in any meaningful way.
– The dissent maintained that, properly construed, the statute contained an adequate standard.
– Since Panama, federal cases have moved in the direction of the Cardozo dissent. This trend tends to reduce the standards requirement to an empty form.

• Schechter Poultry Corp. v. United States (1935)
m § 3 of the National Industrial Recovery Act authorized the President to approve “codes of fair competition” for the governance of trades and industries. When a code was approved, its provisions were to be the “standards of fair competition” for the trade or industry concerned, and any violation was punishable penally.
m The Court ruled unanimously that the delegation was invalid. The delegation was too broad, even for Justice Cardozo.
m The statutory term fair competition was not a limiting standard. The President’s power was not restricted to proscription of “unfair” methods of competition alone. Instead, it included whatever ordinances were deemed desirable in the trade or industry affected. The President was given virtually unlimited legislative authority over the economic system.

When Congress delegates legislative authority to an agency, what must the statute specifically provide in order to satisfy the non-delegation doctrine?
• The statute must provide a standard for the President’s standard. According to Panama, the standard must be narrowly construed to state whether or in what circumstances or under what conditions the President is to exercise the authority.

Which of the following delegations from Congress to the U.S. Environment


Lichter v. United States (1948)
• Claim that the Renegotiation Act of 1942 unlawfully attempted to delegate legislative power. The law provided for the renegotiation of war contracts and authorized administrative officers to recover profits they determined to be “excessive.” But the act did not define the term “excessive profits” other than to state that it “means any amount of a contract or subcontract price which is found as a result of renegotiation to represent excessive profits” — which does not really say more than that excessive means excessive.
• The Court still upheld the act. The Court stated that it is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.
• Congress amended the statute in 1944 expressly to include the agency-developed standards, but this amendment did not affect the Lichter decision.
• The factors help it to pass constitutional muster.

Fahey v. Mallonee (1947)
• Under the Home Owners’ Loan Act of 1933, the Federal Home Loan Bank Board was empowered to issue regulations prescribing the terms and conditions on which a conservator might be appointed to take over a mismanaged federal savings and loan association.
• The district court had held that this constituted an invalid delegation, since no criterion was established to guide the exercise of the authority conferred.
• The Supreme Court conceded there was no express legislative standard, but still found the law to be valid. Since the provisions of the statute were regulatory rather than penal in nature, discretion to make regulations to guide supervisory action may be constitutionally permissible. No new crimes are being created.

Mistretta v. United Sates (1989)
• Enabling legislation: Sentencing Reform Act of 1984
• Agency: United States Sentencing Commission
• The act revises the old sentencing process in several ways.
m The Commission is created and directed to devise guidelines to be used for sentencing. The act also prospectively abolished the Parole Commission.
m The act rejects imprisonment as a means of promoting rehabilitation. Punishment should instead be retributive, educational, deterring, and incapacitating.
m All sentences are basically now determinate. A prisoner must be released at the completion of his sentence, reduced only by any credit earned.