Self-executing vs. non-self-executing
TARP statute-lists duties for secretary (of treasury)
Creates office, authority
Secretary has direct hiring authority (p. 3768)
Entering into contracts
Designating financial institutions, etc…
Establishes treasury office
Lists necessary actions
Doesn’t tell secretary how to value assets. Relies on secretary’s expertise
Why not create a self-executing statute?
Politics-agencies take blame
Table of contents- brief intro. Into what the statute is about
Important issues (such as exec. Compensation, foreclosure mitigation)
Termination of authority-timeline of the regulation
Congressional oversight panel
(a)- secretary authority
(c)- necessary actions
refer to definitions to define what these sections stand for
limits or expands what the statute refers to (ie: the secretary’s power to purchase or insure troubled assets).
Time limitation (ie: assets on or before March 14, 2008).
May still include ambiguous terms, or terms defined elsewhere
Ie: what is “to promote financial stability”?
Broad grant of authority w/o a lot of detail.
Fund For Animals, Inc. v. Rice(page, 1996) (Significance)
F: Environmental groups sought to prevent construction of municipal landfill on wetlands site that was allegedly indispensable habitat for endangered Florida Panther and home to the threatened Eastern Indigo Snake. FWS took no action to list these animals as endangered or threatened; therefore, not required to issue a biological opinion. Sarasota County received permit after 5 ½ years. Litigation ensued.
P: 1) Fish and Wildlife Service has authority under Endangered Species Act to determine which species are endangered or threatened. Biological Opinion
2) Corps of Engineers issued building permits concerning special kinds of construction, including those which affect waters, wetlands, under the Clean Water Act. Permit
3) EPA has discretion to review the permit decisions of the Army Corps under the CWA for filling the wetlands, for consistency with environmental laws.
4) Sarasota County wants to build landfill.
I: A. Whether the district court erred in finding that the Corps did not act arbitrarily or capriciously in making the following three decisions:
(1) Granting the permit to fill 74 acres of wetland as a county landfill;
(2) Not holding a public hearing on the project; and
(3) Not preparing an Environmental Impact Statement under NEPA.
B. Whether the district court erred in finding that the Fish and Wildlife Service (FWS) did not violate the Endangered Species Act (ESA) by issuing “no jeopardy” Biological Opinions and in finding that the Corps did not act arbitrarily or capriciously in relying on those Opinions.
N: main part of the action is happening under agency adjudication and rulemaking. Thus, only a limited scope to challenge at this point. Enviros want to preserve the record.
H: The Court of Appeals held that:
(1) grant of permit under Clean Water Act practicable alternative analysis was not arbitrary and capricious;
(2) Army Corps of Engineers was not required to hold additional public hearings;
(3) decision not to issue environmental impact statement was not arbitrary and capricious;
(4) reasonable justifications for issuance of “no jeopardy” opinions concerning panther and snake were given; and
(5) disallowal of discovery on issue involving memorandum from senator was not abuse of discretion.
Separation of Powers (pg. 13, HO I)
Constitution- articles I, II
· Executive Power, Orders (p. 21), based on Art. II §3
o Faithfully executing law? What does it encompass (actions, activities)?
§ Carrying out legislative instructions
· Including creating agencies, appointing administrators
§ Enforcement of self-executing or non-self-executing laws
· Investigative powers
§ Commander of troops
o What is an executive order? (see example p. 21)
§ Creation of the Center for Faith-Based Initiatives (CFBCI) in DHS
· Prevent or remove obstacles
§ Director appointed by Sec. of DHS
· Responsibilities: reports, administration, audits, initiatives
· Coordinate w/ white house director of Faith-Based Initiatives
§ What does the executive order do?
· 5 USC 301 (p. 17)- head of executive dept can run, organize agency, provide for internal administrative function
o Is this an executive or legislative function? Is it creating policy?
§ Seems like a legislative-type function
· Setting policy for homeland security, policy initiative
· Not making laws or hearing cases, just how it will carry out the goals set, organizing the department
§ Does it goes against a policy set by lege for DHS? How is “Contracting” power interpreted?
§ Does president have power to do this? Did he need congressional approval? (There is no underlying congressional approval for this type of initiative)
· Pres. Does’t need approval-already an effort to expand faith-based initiatives under. Exec. Branch– can organize their departments any way they want
o Justified by Legislative intent in creating DHS
o DHS has contracting ability
· Pres. Needs approval–how do you interpret the absence of language?
o How do you interpret when there are no clear lines of demarcation between the 3 branches
o Gelernter-this exec. order pushes the limit of executive power (at the edge)
§ There is no clear answer.
§ Congress can pass a law to change this, but this isn’t great as practical consideration
§ Court challenge (if there is standing)
o The Doctrine:
§ One branch is not supposed to delegate its exclusive, inherent powers/authority to another branch because it would violate the separation of powers.
§ No inter-branch delegation
§ No delegation to private entities
o Can this doctrine affect or prevent a President from delegating some of his powers to subordinates within the branch?
§ No. President can delegate vertically. The Non-delegation Doctrine is only concerned with inter-branch delegation, i.e. among the three branches. (horizontal).
§ Same is true for the Legislature and Judiciary.
§ Also means can’t delegate government powers to private entities.
o Does this mean that the branch cannot delegate its duties? Intelligible principle test
§ No. The Nondelegation Doctrine does not object to Congress making laws telling other branches (e.g. executive branch) what to do.
· AS LONG AS . . . there is an “intelligible principle” in the legislation that gives some direction to the other branch or agency about what it is supposed to do.
· N.B.: Since 1936, the intelligible principle is a broad concept.
o Intelligible Principle (TEST)
§ Clear guideline
§ [stay within the government] § Discretion with some limitation
· CAN’T write a law, but can carry out a law or policy. Can write regulations guided by the intelligible principle.
§ Jurisdiction à Stricter Princ
precise about what constitutes an “intelligible principle”. Generally requires that the legislature, in delegating its authority provide sufficient identification of the following:
1. The persons and activities potentially subject to regulation;
2. The harm sought to be prevented; and
3. The general means intended to be available to the administrator to prevent the identified harm, including administrative tools and particular sanctions
Non-delegation continued; Separation of powers II –legislative veto
Text: pp. 533-539; 552-561
United Automobile, Aerospace & Agricultural v. OSHA (1991, 533) Lockout/Tagout Case
F: Representatives of labor and industry challenged OSHA regulation requiring employers to lockout or tagout energy isolating devices such as circuit breakers when maintaining or servicing industrial equipment. OSHA decided to extend to all industries, not just “inherently dangerous” ones. Standards for restricting toxic materials that did not apply.
-Nat’l Assoc of Manufacturers brought suit to say that OSHA had acted improperly by extending the regulations. Why would NAM care? Because they use or manufacture the machinery – would affect them.
Argument that it was an impermissible delegation because there was no intelligible principle for the agency in terms of regulating this machinery. Only statutory limitation was that it had to be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
I: Whether the Act invalidly delegates legislative authority. Whether there is an intelligible principle.
H: Court of Appeals held that:
1. The provision of Occupational Safety and Health Act requiring proposed standards dealing with toxic materials or harmful physical agents to be both technologically and economical feasible did not govern regulation at issue;
2. The Act did not invalidly delegate legislative authority with regard to regulations outside area of toxic materials or harmful physical agents; and
3. OSHA’s view that it could impose any restriction it chose so long as it was feasible was so broad as to be unreasonable.
R: Court found an intelligible principle.
§ Cost-benefit analysis is encompassed by the term “reasonable”.
What did the Supreme Court say? It remanded to turn back to agency, instructing that it had to develop a method of cost-benefit analysis.
§ OSHA said that the safety standards had to provide a “high degree of worker protection”. Not cost-benefit analysis put in place, but rather another standard used.
* Still want agencies to make the ultimate decision *
Problem 6-1: Indian Trust Lands
D. The Legislative Veto – both houses trying to stop the president or executive official from doing something. Congress must adhere to bicameralism and presentment
Constitutional Provisions re Executive Veto Power
o Art. I, Sec. 7, Cl. 2
o Art. I, Sec. 7, Cl. 13
Problem 6-4: Legislative Review p.561