Administrative Law
Griesbach
Fall 2012
1) The constitution and the Administrative Agency
a) The Agencies Power to Legislate
A. Administrative Agencies
1. There are a lot of Actors: police officers, department of education people, the DMV, ect. Beaurocrats from all level except those who are elected or appointed as a judge.
B. Separation of Powers Principles
1. Outside of certain narrowly defined foreign affairs and military situations, intrusions by executive on private liberty or property must be authorized by legis.
2. Also, doctrine against delegation of legislative power requires that such authorization take the form of rules that effectively control the admin decision.
3. Agencies are part of executive branch, which enforces law.
C. Agency’s Power to Legislate
1. Art 1, § 1: “all legislative powers…shall be vested in a Congress of the US…”
2. Early cases stated that this legis power, which Const had delegated to Congress, could not be regulated to others.
3. Sup Ct later said that although the power to prescribe rules “in the future is a legislative act… Congress…might commit to some subordinate tribunal this duty.”
4. Functional approach: agency really makes law b/c agency orders are enforced by cts and the statute itself is not enforced b/c it always must be elaborated by agency.
1. Agency Independence
1. Summary of control over agencies:
a. Legislative – very minimal; reduced in 1980’s
b. Presidential – enormous increase from 1970’s to 80’s
c. Judicial (i.e. lower cts) – peaked in 70’s (i.e. Benzene) and minimized in 1980-90.
2. Legislative devices to control admin agencies:
1) Amend statute if Congress doesn’t like what agency is doing.
a. problem – statutory gridlock – difficult to amend statute when you have divided gov’t (Pres and Congress each run by different parties)
2) Appropriations statute
a. Congress and Pres together can de-fund agency.
b. Problem – gridlock
3) Legislative oversight and sub-committee hearings
a. require agency to report and “rake them over coals”
4) Constituent services
a. Congressional aides call agencies w/specific problems
5) Involvement in appointment process
a. esp. w/major officials; Cong can hold up appt.
b. controlling who runs agency; influencing tenure in office, criteria for retention and dismissal.
6) Statutory restrictions on Pres’ removal powers
7) Legislative veto power (struck down in 1980’s)
8) Admin agencies have lots of control b/c of “disabled/divided” Congress. While Congress has been weakened and disabled, the Pres (WH) has enormously increased its power since 1980’s.
i) The Non- Delegation doctrine
(1) Schechter Poultry Corp. unconstitutional delegation of legislative power. Nat’l Industrial Recovery Act designed to ease depression and stabilize wages and prices. The President was given the power and sub delegated to the members of the industry members codes of fair competition. Here, the NIRA doesn’t provide the adjudication and makes everything illegal unless it is specified by the NIRA rules that are created by the industry members, with no limit.
(2) Industrial Department, AFL-CIO vs. American petroleum Institute. The Modern Non-Delegation doctrine Benzene Cases (1980) OSHA delegates broad authority to Secretary of labor to promulgate different kinds of standards. Sup Ct held this was unprecedented amount of power given to admin agency, but instead of ruling on constitutional grounds, it interpreted the statute. Plurality interpreted statutory provisions narrowly and held that OSHA must show that the existing chemical exposures to workers presents a “significant risk” to health before it can impose new standards. This is a non deferential aggressive construe of the statue to avoid the non delegation doctrine. Note: Carter was president and outsourcing had just started.
(a) As a lobbyist you don’t want a stronger non-delegation doctrine, because you can influence the congress easier than the Administrative Agency. Also, as a member of congress- you want the statue to be general so you can take credit for the good things and blame the bad on the administrative agency that implemented the statue.
(3) American Trucking The court said that the EPA had not set guidelines that were easily understood. This is wrong b/c the real issue is whether the statue was specific enough. This confusion came from the opinion itself. It gives 3 functions of the non delegation doctrine, but Scalia disagrees he says #1 is the only function and the other two are happy side effects. non delegation doctrine is a doctrine that applies to congress. And makes them identify problems, set up ways to address it and set up means to do that. He says there are no rules, its just a judgment.
(a) When there is a non-delegation problem and it looks like there is a case that is challenging the president for giving too much discretion—the courts aggressively construe the statue to avoid the non-delegation doctrine.
(4) Whitman v. American trucking- When conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform the Supreme Court read the statute as “requiring the EPA to set air quality standards at the level that is “requisite”–that is, not lower or higher than is necessary–to protect the public health with an adequate margin of safety,” and so concluded that the scope provided by Congress for the EPA was “well within the outer limits of our no delegation precedents
ii) The Legislative Veto
(1) INS vs. Chada- it looks like judicial review of the Atty generals decision in the case. The house was exercising judicial powers when it tried to overturn the deportation. Under Powell’s analysis it looks like only legislative review of adjudications would be out. When courts use formal type considerations there is a lot of judicial flexibility ad way for them to decide how they want the issue to come out. White uses the functional approach. Similar to the O’Connor in the FTC case. He says that the constitution sets up checks and balances and not serration of powers. He concludes that most functions are joint exercises of the different branches. Result of Chadha: all legis veto provisions, even if requires both houses, is struck down b/c fails presentment requirement.
– if provisions are severable, then only provision is gone. If not severable, whole statute is gone. Thus, cts have held provisions is severable.
– this is really a great delegation to President b/c Congress can no longer review the Pres’ administrative agencies’ decisions.
(2) Presentment Clause- for resolution to be legally operative, it must be presented to the Pres. for approval/disapproval® separation of powers.
(3) Bicameralism Clause- no law can take effect w/o approval of both Houses so that laws could not be enacted unless it had been fully considered. Congress must do everything in a bicameral process except as put forth in Const.® H of R power to impeach; Senate conducts trial after impeachment; Senate advise & consent authority; Senate power to ratify treaties.
(4) “Congress must abide by its delegation of authority until that delegation us legislatively altered or revoked.” Congress must follow procedures in Art. I or it is encroaching & interfering w/ executive authority given to Atty. Gen. Const. restraints intended to erect checks on each Branch to protect the people from improvident exercise of power.
(5) Legislative Veto- a statutory provision that says that a particular agency action will take effect only if congress does not nullify it by resolution within a specified period of time. This gives congress oversight of the agency decisions especially if agencies acted under statutes that gave them broad discussion amounting in practice to a form of lawmaking. The elements are:
(a) a statutory delegation of power to the executive
(b) an exercise of that power
(c) a reserved power in the congress to justify that exercise of authority
b) The Executive and the Agencies
3. Executive and Agencies
0. Pres’ power to check administration agencies:
1) Pres part of statutory enactment process (presentment clause and only 2/3 vote can override)
2) Budget appropriations (originate in House but prepared by WH)
3) Appointments
a) high officers appt w/advise and consent of Senate
4) Dismissal
a) Myers, Humphreys, Bowsher – looks like limitations on Pres’ dismissal power are being rejected, and thus expanding Pres power.
5) Executive Orders
a) Nixon – turned OMB into super-agency w/power to control what all other agency’s did.
1. Introduction
A) Office of Management and Budget – has management power over fed’l admin agencies (i.e. appropriations requests for fed’l agencies funnel thru OMB).
a) no judicial review of OMB’s decision
b) OMB reviews and determines whether rules promulgated follow criteria, if not, send back to agency.
B) Executive Order 12,291 – Reagan
a) required agencies which promulgated regulations to prepare regulatory impact statements and funnel thru OMB
b) “benefits of regulation must exceed costs”
– many projects flunked cost-benefit tests. Wonderful device for downsizing govt.
c) quantification required, but not equal distribution
d) not judicially enforced.
C) Executive Order 12,866 – Clinton
a) Office of Information and Regulatory Affairs now coordinates agency regs
b) Not so much concerned w/quantification, but must be equal distribution
D) Paperwork Reduction Act
E) Presidential v Congressional control over administration.
F) Under Myers, Humphrey’s Executor, and Weiner, federal employees who perform:
1. “Purely executive functions” (e.g., State Dept, Dept. of Defense, Dept. of Commerce, Dept. of Labor, Dept. of Energy, etc.) can be removed at the President’s discretion (Myers)
2. “Quasi-legislative/quasi-judicial functions” (e.g., FTC, FCC, FRB, SEC, NLRB, ICC, usually commissions etc.) can only be removed for cause, because these agencies are intended to be independent (Humphrey’s Executor)
3. “Inferior officials” (e.g., political civil service, protected civil service, special statute protected) can only be removed for cause (Weiner)
o The Appointments Clause provides that the pres, w/ the advice and consent of the Senate, appoints officers of the US, and Congress may specify that inferior officers are appointed by the pres alone, by the heads of departments, or by the courts of law. Article 2 sect 2 clause 2. (most gov’t employees are civil servants ad are not covered under the appointment clause.) there are about 1400 high level that require president, and of these 1150 require the senate approval too.
Principal Officers: High-level officials in the executive branch and heads of independent agencies. Cabinet members and commissioners of independent agencies are principal officers b/c there’s no one in the government hierarchy between them and the pres. By Prez with advice and consent of Senate
Inferior Officers: Lower-level executive officers who are under the supervision of other executive officials beneath the pres. They act on the authority of legislation.
o Purely Executive: Advice and consent of the Senate Required for appointment, removed at prez discretion. Including: Cabinet level members & subordinates, Secretary of state, commerce, agriculture, interior, Atty general, Administrator of EPA, OSH (makes policies), Director of FBI and FAA.
o Policy: We seem to want to limit the political influence on the commissions because they are seating the rules for many things and we need those to stay as non-partisan as possible. There seems to be a decision to integrate some of the departments, for example state and defense—that
remove.
(a) separation of powers is open to multiple outcomes, because the justices see different actors, the powers or the encroachments in different ways.
(4) Clinton vs. City of NY- Line Item Veto act permitted President to sign an overall, larger legis package but in subsequent exec action to cancel certain defined and limited types of kind statutory items w/in criteria set forth. Holding: LIV Act unconstitutional. CT, using formalistic approach, characterizes the cancelling process as legis in nature b/c it is dealing with statutes. If cancelled, then statute isn’t what House and Senate voted on. Congress didn’t really vote for what turned out to be the statute. Also, can’t tell if Pres really signed statute b/c he did w/respect to some, but not all parts.
2) The Scope of Judicial Review
o Options: Is this an issue of law or fact?
o If fact, defer to the agency as long as its supported by substantial evidence. Universal Camera
o If its law, then the next step is to decide: Does the agency administer the statute? Did Congress intend the agency to have such authority as to encompass taking action that would have the binding force of law?
§ If the answers are yes then go to chevron step one. If no Skidmore.
· Skidmore- the factors for determining whether or not to defer: the thoroughness evident in agency determination; validity of its reasoning; its consistency w/ earlier & later pronouncements; & all other factors giving agency power to persuade.
· Chevron Steps:
o (1) Has Congress spoken unambiguously through a statute to the issue at hand? (Look for ambiguity by looking through legislative history, the language of the statute, traditional rules of statutory construction.
§ If yes- the statute controls and the analysis stops.
§ If no, go to 2
· (2) Is the agency’s interpretation reasonable?
o If yes court defers
o If no, No deference
a) Review of Questions of Fact= substantial evidence
i) NLRB vs. Universal Camera 2- Holds that circuit courts are to be less deferential and more independent. Can’t just look for scintilla of evidence – must determine if substantial in relation to entire record. The court uses a sliding test- the more evidence that discounts and agency finding the less likely it is to be sustained. Included in record are Hearing Examiner’s findings, reports and opinions. Power going to Hearing Examiners b/c cts are not to look more at Hearing Examiner’s findings. In order for Board not to be reversed, it must give deference to Hearing Examiner. Board getting squeezed.
ii) Allentown Mack- S. Ct says the ct of appeals is right, and there was an unfair labor practice. They kind of based this opinion on the fact that the statements were made during an interview and Allentown should have known that these men were saying what they thought they needed to get a job. So, the vote was not based on objective considerations and should have not been taken. The NLRB’s rule of thumb that what is said about unions during a job interview is unreliable. The court was non-deferential to a rule of thumb, needs a case by case review. The court found that the did not have substantial evidence for its findings to conclude the that reasonable doubt did not exist for lack of agency support.
(1) The Allentown Mac Move-
(a) The lawyer representing a party who lost before the agency focuses on a “finding of fact” which is based on the agency’s application of some rule-of-thumb respecting the evidence, e.g., that statements made in the course of job interviews do not constitute “objective” grounds for an employer’s doubt about support for a union.;
(b) The reviewing court is convinced to pull that rule-of-thumb out as a device for “disguising policy-making as fact-finding” and non-deferentially rejects it (on substantive or procedural grounds).;
(c) The reviewing court then reconsiders the evidence (in light of its rejection of the rule-of-thumb), determining that the agency’s finding was not supported by substantial evidence.
(2) Effect of “The Allentown Mack Move”
(a) The reviewing court rather than the agency makes the decision on the rule issue (relative empowering of reviewing court), and
(b) The policy issue is decided on a case-by-case basis rather than by rule, thereby reducing the “rigidity” (and so also the “predictability”) of the statutory-regulatory structure.
iii) Woodby vs. INS- CT says that the burden of persuasion is “clear, convincing and unequivocal evidence.” Ct say burden required was same as in denaturalization and expatriation cases b/c “immediate hardship of deportation is often greater than that inflicted by denaturalization. Ct worried about favored and disfavored aliens, concerned w/fact-finding abuse. See a need for a more formal basis.
