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Administrative Law
SUNY Buffalo Law School
Gelernter, Lise

I. SEPARATION OF POWERS

1. Separation of Powers – provides a check & balance system. This is an integral principle to constitutional structure. One branch cannot delegate to another branch an exclusive power that that branch has.

Agencies are engaged in activities set out in all branches of government.
Agencies can adjudicate even though the Constitution provides that the judicial power shall be vested in 1 Supreme Court and other inferior courts established by Congress.
Agencies are “immune” from termination based on disagreement on presidential policy even though the Constitution vests executive power in the president. Agencies are in the executive branch so it’s not ruining the balance of the separation of powers.
Agency orders or rules are not subject to legislative vetoes which have been ruled unconstitutional.

Constitutional Interpretations

Formalist approach – interprets constitutional requirements as literally as possible – minimizes the extent powers of the three branches overlap. Court will look at the power being exercised by the branch and then determine if this power is being exercised by the appropriate branch. Youngstown – court struck down President’s order directing Secy of Commerce to seize and operate the nation’s steel mills. In seizing the mills, President had improperly aggregated to himself the power to make law.
Functional approach – interprets constitutional powers in a nonliteral manner. Technique extends the extent the powers of the 3 branches overlap on the ground that the Constitution itself commingles powers among the 3 branches. Core functions test – test approves the commingling of powers as long as one branch’s exercise of power does not jeopardize the core function of another branch. Inquiry becomes whether it is a concept necessary to protect fundamental branch interests.

A. Delegation of Legislative Power
a. Theoretically, legislative power cannot be delegated, but practically, through the granting of broad rulemaking powers to administrative agencies, legislatures do so delegate. The delegation doctrine requires that (1) the legislature at least decided the fundamental underlying policies and (2) the agency action fall within the scope of the delegated power.
b. Despite the delegation doctrine. Congress may delegate very broad rulemaking powers to federal agencies. State agencies apply the delegation doctrine more strictly.

1. FIRST PHASE
a. Brig Aurora (1813)- Court’s first nondelegation case, it considered a delegation that authorized the President to lift a trade embargo against France and England when these countries no longer violated the neutral commerce of the US. Court held that the statute did not violate the nondelegation doctrine because the President’s discretion was limited to taking specific action mandated by Congress if the “named contingency” occurred. Thus establishing the “named contingency” test which requires Congress to establish a policy and then direct the executive to implement the policy only if certain facts were true.

b. J.W. Hampton (1928) – Court rejected “named contingency” test because it failed to take Presidential discretion into account. Court changed test to “intelligible principle” test, which permits the delegation of discretion but it also requires an agency to make decisions which are consistent with the general policies defined by Congress.

2. SECOND PHASE
a. Panama Refining Co. (1935) – court declared National Industrial Recovery Act (NIRA) unconstitutional. NIRA authorized the President to prohibit the transportation in interstate commerce of petroleum. Congress was seeking to prevent oil producers from evading state restrictions limiting the amount of oil the producers could sell. Court held Congress failed to declare a policy and establish a standard or rule thus there was no intelligible principle.
b. Schechter Poultry Corp. (1935) – court declared another section of NIRA to be invalid, which authorized President to approve codes of fair competition jointly established by firms in an industry if three conditions were met. Court held that the phrase “fair competition” was less limiting than the FTC’s mandate – the act supplied no standard for any trade and instead of prescribing rules of conduct it authorizes the making of codes to prescribe them. Congress failed to establish an intelligible principle.
c. Cater Coal Company (1936) – Court reviewed law which delegated to some mine owners the authority to fix maximum hours of labor which were binding on all miners. This delegation to private persons was unconstitutional – it was delegation at its most obnoxious form.

3. THIRD PHASE
a. Since the 1930’s the Court has approved all of the legislation it has reviewed for compliance with the nondelegation doctrine:
b. Whitman v. American Trucking (2001) – Court rejected prior approach holding that if a statute violated the nondelegation doctrine, the problem could not be repaired by having the agency adopt a narrowing standard. The Court also held that the statute did provide a sufficiently intelligible principle arising from the word “requisite” meaning not higher or lower than necessary to protect the public health with an adequate margin of safety, without considering any other factors (such as the cost of the regulation). As a result the statute did not unlawfully delegate legislative power to the EPA.
c. Minstretta (1989) – US Sentencing Commission was created to adopt rules regarding sentencing in federal criminal cases. Court held that the statute creating the commission and authorizing it to adopt such rules satisfied the nondelegation doctrine in terms of providing an intelligible principle to apply.
d. Summary of Decisions on Nondelegation principle – powers can’t be delegated but if the statute contains an intelligible principle that the agency must follow power is not delegated just responsibility.
1) Sufficient abstract terms – “public convenience, interest or necessity” or “unjust or unreasonable” or for the “public health, safety, and morals.”
e. Scalia’s theoretical approach – only Congress can exercise legislative power so when agencies in the executive branch are to carry out statutes that contain an intelligible principle the agencies are not exercising a delegated “legislative power” but rather the executive power to execute the laws.
f. Skinner (1989) – Court rejected P’s argument that the Court should employ a stricter test under the nondelegation clause when Congress delegates its taxing authority to

ngines. This statute obviously gives the EPA little guidance on where to set the standard; it does not indicate how much pollution is too much. The lower court held that the statute violated the nondelegation doctrine, but it would have allowed the EPA to provide the missing intelligible principle itself.
2) Compare with Whitman – Supreme Court rejected the approach in American Trucking stating that if a statute violated the nondelegation doctrine, the problem could not be repaired by having the agency adopt a narrowing standard.

B. Legislative Veto

1. Congress cannot retain a “legislative veto” of administrative adjudication or rulemaking. The legislative veto allowed Congress to retain the power to veto the rules after they were adopted (sometimes by resolution of both houses, sometimes by resolution of only one house, and without the President’s signature).
2. INS v. Chadha (1983)
a. Congress included legislative veto provisions in a statute that would allow the Attorney General to stay the removal of an alien if the deportation would cause “extreme hardship”. The legislative veto was put in place in order to check the decision made by the Attorney General who was required to report his decision to Congress. AG recommended that Chadha not be deported because he did not have citizenship anywhere but the House (alone) vetoed the decision and ordered the deportation.
b. Court found that the legislative veto caused two problems (1) violated the bicameralism principle which requires that legislative action be taken only by agreement of both houses. This was a legislative act because it altered legal rights, duties, and relations of persons, including the AG, executive branch officials and Chadha, all outside the legislative branch; and (2) President had no opportunity to veto because there was no presentment (altered President’s authority)
c. This case therefore strips Congress of a valuable tool for controlling agency action. The Congressional Review Act seeks to reinstate that tool while passing constitutional muster.
1. Corrections Day – Only happens in the House – rules to expedite are (1) there is a limited time for debate (2) only the chair of the committee with jurisdiction over the bill can move to amend it (3) and opponents are limited to one motion to recommit the bill.
2. Congressional Review of Agency Rulemaking
i. Agencies must submit all new rules to Congress with copies of cost-benefit analysis…
ii. A major rule cannot take effect until 60 days after the previous information is submitted to congress, or after the rule is pub in the federal register (whichever is later).