Constitutional themes
v Congress ceding authority – Non delegation doctrine
o separation of powers –
§ government intrusions on private liberty must be authorized by a politically responsible body, the legislature.
§ Don’t want those executing laws to make them too – rule cannot be too vague – need a standard by which to govern – must restrain discretion somehow
o Rule: permissible delegation if congress lays down by legislative act an intelligible principle to which body authorized to take action must conform
§ Less intelligible principle needed with narrow scope, more with broad scope. (Whitman)
o Court will read requirements into statute to make it not violate NDD –Benzene.
§ Court looks for factors that control the exercise of broad delegations, e.g. Procedural safeguards
o If congress fails to articulate an intelligible principle, the agency can’t do it for them
o Currently: NDD used to justify a narrow interpretation of authority granted in statute to avoid constitutional issues – interpretive canon
v Congress hogging authority
o Appointment and removal power of President
§ If purely executive officer
· Removal can be limited if inferior
· Removal cannot be limited if superior, at will removal by president
§ If quasi legislative or judicial (independent)
· Removal can be limited for both superior and inferior
§ All superior executive officers must be appointed by president, not inferior ones
§ Look to nature of office to see if executive or independent
o Legislative veto
§ Congress must abide by delegation of authority unless legislatively altered or revoked in accordance with constitutional procedural requirements
o Congress’s removal power
§ If official exercises any executive power at all, congress cannot give itself sole removal power except by impeachment
v Congress giving agencies judicial authority
o Cannot delegate to non article III entity powers that must be exercised by article III court
Type of court
Private right created by congress
Private right not created by congress
Public right
Must have article III court
generally
Need not have article III court
But must allow de novo review in article III court of jurisdictional facts and constitutional claims
If right to article III court is waived or agree to arbitration and judicial review is available
X
o 7th amendment right to jury is a limitation on giving agencies judicial authority.
v Due process in the administrative context
o When do due process rights attach?
§ Goldberg:
· explicit rejection of privilege right distinction.
· There is a private right if the government did something to create an entitlement to a government benefit. Applicant is different from c
ents will cause
o Corporal punishment meaningless if pre-hearing required
Common Law Requirements
v Clarity – Agencies must articulate standards and operate under them
o Not a non delegation issue, not unconstitutional delegation, overbreadth may give official discretion to impinge public’s constitutional rights, lead to arbitrariness, favoritism.
§ E.g. giving permits – must have sufficiently definite standard for official to follow to make sure 1st amendment rights aren’t violated.
§ E.g. FCC using 15 factors to grant license without weighting
§ e.g. criminal statutes need to be sufficiently definite to give notice of required conduct, this is satisfied if statute punishes only knowing violation.
o Agency must follow its own rules
§ An administrative ruling, until changed, binds the outside world and the agency in cases arising under the APA
§ Exception –
· administrative rule regarding approval for use of evidence doesn’t bind courts, case doesn’t fall under APA and D wasn’t seeking to invalidate agency action.
· Where rule is regarding internal agency procedure
§ Changes must be made according to procedure – if rule was adopted via formal rulemaking, cannot change it in an informal proceeding.
o Lack of clarity can lead to lack of consistency as in license renewals in FCC case
