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Administrative Law
SUNY Buffalo Law School
Gelernter, Lise

Gelertner – Spring 2009


Traditionally: Legislative passes a law – executive enforces it – judiciary stays uninvolved unless there is a violation of the law or an overstepping of constitutional limits – congress cannot micromanage executive implementation

Some statutes are self-executing. There aren’t too many. No agency needs to be involved. e.g.:
36 U.S.C. §301 (the national anthem) N.Y. Pen. L. §160.5 (Penal law – tells what a crime is – here robbery.)

Some are not self-executing as they require agency action t oversee and enforce them.
e.g. 122 STAT. 3765-77: Emergency Economic Stabilization
Statues at Large available @

I. Despite Separation of Powers Agencies Transcend the Barriers of the Executive (p. 520-21)
a. Legislative
i. “all legislative Powers … shall be vested in a Congress” Art I, §1
ii. “all Laws which shall be necessary and proper” Art. I
1. Yet agencies make all sorts of rules and regulations
a. In addition the Supreme Court has declared unconstitutional the legislative veto, whereby Congress would veto agency orders or rules by a resolution in one or both houses of Congress.
b. Judicial
i. “[j]udicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, §1
1. Yet agencies adjudicate
c. Executive
i. “[e]xecutive Power shall be vested in a President” Art. II, §1
1. Agencies are an extension of executive power
a. Yet the President may not fire certain administrators of “independent” agencies for policy disagreement.

II. Techniques for the administrative lawyer to block administrative action (or reverse) (p. 521)
a. Argue that the agency structure is/isn’t unconstitutional.
b. Argue that an agency’s interpretation of a statute is/isn’t unconstitutional.
i. A lawyer might also be asked to advise Congress as to whether a pending bill to create or redesign an agency would be unconstitutional.

c. Analysis of Questions of Constitutionality
i. Strict: Court takes a formalistic (literal) approach
1. Two prong:
a. Is the power being exercised legislative, judicial, or executive? and
b. Is it being exercised by the appropriate branch?
i. e.g. Youngstown – determined that Secretary of Commerce is not empowered to seize property
ii. Less Strict: Court takes a functional approach (non-literal)
1. Framers contemplated some comingling of functions – court has said that “separation of powers questions should be determined ‘according to common sense and the inherent necessities of the government coordination.” (522)
i. Commingling of powers is OK so long as one branch’s exercise of a power does not jeopardize the “core function” of another branch.


III. BIG QUESTION: What limits are there to Congress’ power to delegate rulemaking authority?
a. Issue: The non-delegation clause: “[a]ll legislative Powers… shall be vested a Congress of the United States” Art I, §1. May agencies legislate? If so, to what degree?
i. Three phases in answering whether delegation of rulemaking is constitutional
1. Until the 1930s the Court rejected nondelegation claims
2. 1930 it struck down two statutes on nondelegation grounds
3. Since then it has rejected all nondelegation claims, but has since used the nondelegation clause to narrowly interpret an agency’s authority. (523)
NOTE: Non-delegation never works! It only did twice and hasn’t since!

ii. Phase One – allowed delegation to pass
1. Brig Aurora 11 U.S. 382 (1813) (p.523)
FACTS: Delegation authorized the President to lift an embargo against France and England when these countries no longer violated the “neutral commerce” of the United States.
HOLDING: Court held statute did not violate nondelegation because the President’s discretion was limited to taking a specific action mandated by Congress if a “named contingency” occurred.
2. J.W. Hampton, Jr. & Co.276 U.S. 394 (1928) (p.523)
FACTS: Delegation authorized the President to revise certain tariffs wherever he determined revision to be necessary to “equalize the costs of production in the U.S. and the principal competing country.”
HOLDING: Court approved delegation because Congress established an “intelligible principle” by which justices could determine whether the President had acted within his delegated authority.
The “named contingency” approach as in Brig Aurora was abandoned since Presidential fact finding might require some measure of discretion. (523 bottom)
Congress could delegate legislative powers so long as it set the boundaries of the agency’s authority via an intelligible principle.
iii. Phase Two – declared two statutes in violation of nondelegation
1. Panama Refining Co. 293 U.S. 388 (1935)
FACTS: A provision of the National Industrial Recovery Act authorized the President to “prohibit… the transportation in interstate… commerce of petroleum… produced or withdrawn from storage in excess of the amount… permitted… by state law.”
(Congress wanted to stop people seeking to evade state law.)
HOLDING: Court held that Congress failed to provide an “intelligible principle.” Congress didn’t declare a policy or standard or rules – how the President is to determine whether transportation is allowable or prohibited. (Cardozo dissented saying that an intelligible principle existed in the first section of NIRA which indicated goals and purposes of legislation.) (524)
2. Schechter Poutry Corp. 295 U.S. 495 (1935)
FACTS: Congress authorized the President to approve codes of “fair competition” jointly established by firms of an industry when three conditions had been met – written by a representative of the group of businesses, did not promote monopolies, and served the goals in the first section of the NIRA.
HOLDING: Violation of nondelegation – no intelligible principle.
ANALYSIS: Congress set no standards beyond the general aims of the NIRA. The President’s discretion was overly broad. Congress noted the adversarial procedures in the FTC for a complaint and adjudication – the NIRA disposed of this procedure and gave full discretion to the President.
Cardozo called this: “delegation running riot.”
3. Carter v. Carter Coal Co., 298 U.S. 238 (1936)
FACTS: Legislation delegated to some mine owners and miners authority to fix maximum hours of labor which were binding on all mine owners.
HDING: Delegation was improper because it allowed a “majority to regulate the affairs of an unwilling minority.” What the court called “delegation in its most obnoxious form.”

FACTS: Congress passed a law called the Clean Air Act. The Act required the Administrator of the Environmental Protection Agency to promulgate (announce) National Ambient Air Quality Standards for certain air pollutants. The Administrator revised these Air Quality Standards regarding “particulate” matter and ozone. The American Trucking Associations, Inc., as well as Michigan, Ohio & West Virginia challenged the new standards in the District of Columbia Circuit.
UNDERLYING DECISION: This case is on appeal from a ruling in the District of Columbia Circuit that the delegation of authority to the Administrator of the EPA was unconstitutional because it failed to provide an “intelligible principle” to guide the agency in exercising its authority.
HOLDING: The Supreme Court reversed.
ANALYSIS: Looking at the statute – Section 109(b)(1) of the Clean Air Act p. 526 middle “instructs the EPA to set ‘ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect public health.” Is this an intelligible principle?
· The court clarifies the “intelligible principle” test – it is not the case that an unlawful delegation of authority becomes lawful by giving explicit instructions or “intelligible principles” to an agency. By telling an agency what to do, it doesn’t therefore become constitutional. Congress cannot delegate its legislative duties, period. (526-27)
· The court then went on to say that what the EPA is being asked to do, specifically, is establish levels of pollutants that are requisite to protect human health. Requisite means a minimum, not more than necessary level. (527)
· Does this constitute a violation of the non-delegation clause? Is Congress delegating legislative authority? The court says no.
· The court cites two analogous cases where delegation of authority was upheld: Touby (1991) – allowed the attny general to designate a drug as a controlled substance where

a. CAAN wants to uphold what the MWAA did, and wants to challenge that the Board did not have authority to veto the MWAA decision. The Board is comprised of nine members of Congress. As CAAN’s attorney, what do you say?
i. The President did not appoint any of the officers on the Board.
1. Nevertheless, what is their function?
a. Isn’t it purely legislative if all they do is review laws?
i. “individual capacity” means as a normal person, disregarding exerting their influence as a member of Congress
b. It seems like yes, these officers can be appointed, Congress appointing themselves to review subsequent legislation by an agency.

III. The “Inferior Officer” problem
a. Officers can only be appointed by the President with the advice and consent of the Senate.
b. The President doesn’t need the “Advice and Consent of the Senate” to appoint inferior officers.
c. Inferior officers can also be appointed by heads of departments or the Judiciary.
i. Art. II, §2 – Congress may vest the Appointment of such inferior Officers
1. It does not say that Congress may appoint inferior officers. Congress is limited to appointing officials with solely legislative duties.

IV. Morrison v. Olson (p.567) INFERIOR OFFICERS TEST
a. The Special Counsel law arose in the wake of Watergate (see notes 570)
b. AG à Special Division (Court) à Special Counsel (investigate)
c. Issue: Is the Special Counsel a “principal officer” that requires approval under the Appointments Clause?
i. They find that she is an “inferior officer” – Why?
1. She can be removed by the AG (subordinate)
2. She has limited duties (investigatory & prosecutorial – solely judicial)
3. She has limited jurisdiction (single case)
4. She is limited in tenure (single case)
What made her inferior, although she could be in there forever, as was the case with Kenneth Star investigating Clinton, was that she had “a little fence” around her regarding the scope of her function and duties.
ii. What would have happened if the Supreme Court didn’t find she was an inferior officer?
1. They would find a violation of the Appointments Clause
a. Invalidate the appointments clause
iii. Once she is inferior, the courts of law can appoint her.
1. When couldn’t a court appoint an inferior officer?
a. It depends on the duties that they perform – were they to go beyond the scope of the judiciary – “incongruity” with the duties of the courts – then she could not be appointed by the judiciary.
V. Problem 6-6 (p. 572)
a. Tax Court has 19 judges appointed by President with the Senate’s advice and concurrence. The Chief Judge appointed a special judge to hear the taxpayer’s appeal. (Chief judge is authorized to appoint special judges who may “hear cases, take evidence, rule on admissibility, enforce compliance orders, prepare proposed findings and write an opinion” but the ultimate decision is made by a Tax Court judge. Taxpayer wants to argue the appointment of the special judge is unconstitutional. How do you do this?
i. Argue that they are not inferior officers (that they are “Officers”)
1. If so, they should be appointed by the President w/ advice and consent of Senate
2. However, the government can argue well the subordinate position, limited authority and tenure, etc. as in Morrison
ii. Argue that they are performing duties non-delegable by the judiciary.
1. Appears purely judicial functions
iii. Argue that they were not appointed, as inferior officers, by an appropriate head of department, the President or the Judiciary.
As an Article I court his does not fall under the typical judicial