ADMINISTRATIVE LAW COURSE OUTLINE
I. Constitutional Structure & Challenges to Agency Actions (where agency fits within separation of powers)
A. Non-Delegation Doctrine in the Context of Agency Rule-Making (excessive delegation of legislative authority)
Bases of Concern:
1) Constitutional – Whether the legislature giving away its powers to agencies violates the Constitution
2) Democratic Principals – Whether the legislature giving its powers to a non-elected institution (agency) violates democratic principals
Organic Act (Statute) – Claim is that statute language is too broad, vague, and provides too broad a grant of authority, and providing insufficient direction to the agency. Act is devoid of:
“Intelligible principle”
Standards
Court is unable to determine whether the agency acted lawfully. The court should be able to determine whether the agency acted within the authority granted by the organic act.
The courts have only struck down a statute as excessive delegations of authority twice, both in the 1935. Courts have also upheld broad delegations of authority.
FCC case – SCOTUS upheld the statutory right of the FCC to regulate broadcast licensing “as the public interest, convenience, and necessity require.”
Three Judicial Options for Modern Application of Non-Delegation Doctrine
1) The Court can hold that there is no excessive delegation of legislative authority. As written, the statute does provide an intelligible principle. (American Trucking)
2) The Court can rule the statute an unconstitutional delegation of legislative authority. Rare and unrealistic – only happened twice, both in 1935.
3) Constitutional Avoidance Doctrine (preferred option) – Avoid a constitutional infirmity if possible. When possible, the Court should offer a narrow construction of the organic statute that would provide an intelligible principle, and avoid ruling that there was an excessive delegation of legislative authority.
B. Non-Delegation Doctrine in the Context of Agency Adjudication
An inconsistent, unsettled doctrine
Bases of Concern:
1) Democratic Principles (less concern than in rule-making)
2) Separation of Powers – Delegation of adjudicatory authority from unelected judges to unelected agency officials. Unconstitutional legislative transference of authority from the judiciary to the executive (agency).
There are certain categories of cases that agencies are precluded from hearing because they are:
1) Basic common law claims or private rights traditionally reserved to the judiciary, or…
2) The right at issue is wholly unrelated to the regulation, or…
3) The right at issue requires a jury trial, which agencies are unable to provide
Schor case – The dominant case today in excessive delegation of adjudicatory authority. Schor imposed the “core function” test to determine whether the delegation interferes with the core functions of the judiciary.
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Limited duties, jurisdiction, and tenure
Morrison Core Function Test: Congress can condition the presidential removal powers of independent agency officers even if the independent officer engages in an executive function so as long as it doesn’t impede a core function of the executive.
The entire existence of independent agencies is based on limiting presidential removal powers by requiring cause for removal.
Morrison was an affirmation of the concept of independent agency officers, and the application of a core function test: by limiting the President’s removal power, has a core function of the executive been impeded?
D. Congressional Self-Aggrandizement: Appoint & Removal Power
Separation of Powers Analyses
Formal Approach (Bowsher & Chadha cases)
1) Textual – Attentive to the text of the Constitution
2) Categorical – Categorical perspective on the separation of powers that distinguishes the executive, legislative, and judicial branches as distinct categories.
3) Rule-Oriented
Functional Approach (Schor & Morrison cases)
1) Court looks beyond the text of the Constitution
2) Court looks beyond formal categories
