ADMINISTRATIVE LAW (PROF. BAMBERGER)
I. Introduction: Administrative Law and the Regulatory State (M, 8/18)
1. Goals of the administrative state (hard to get all three)
– Efficiency: solving market failures (market power, information asymmetry, collective action, free rider)
– Fairness: redistributing resources
– Democracy: participation, accountability
2. Two normative problems
– how can we justify, legitimate the handing over of power to the undemocratic, unaccountable bureaucracy?
a. Control by procedure
b. Control by institutions: Congress? President? judges ?
c. Other forms of accountability: Openness and transparency reqs , the press
– The second normative problem: (substance) On what bases should we be making policy? Politics?/ Science?/ Policy expertise (academics? Studies? Experience?)/ Fairness?
3. Why would congress delegate to an administrative agency?
– Quick and flexible
– Specialized Expertise: BUT agency tunnel-vision.
– Political Accountability and Insulation:
a. Critique: Agency tunnel-vision, Democratic Legitimacy, Agency Capture, Rule of Law, public pressure, agency biases, Transparency
b. Counter: Executive Accountability
– “Filling in the Details”
a. See Wayman v. Southard (1826) [pg. 67]: Held: there are certain, less important, subjects of Congressional regulation “in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”
– Political Cover (deniability but less credit if good capital)
4. Ways to ameliorate problems w/ delegation
– Mechanisms for greater legislative control and review
– Mechanisms for judicial review
– Greater substantive guidance from congress
5. Why might a (potentially) regulated industry favor Congressional delegations to administrative agencies? Inevitable Regulation, Justification for Price Increases, Barriers to Entry for competitors
II. The Place of Agencies in American Government
A. The Constitutional Position of Administrative Agencies (Th, 8/21)
1. The Non-Delegation Doctrine (NDD): Under what conditions are Congressional delegations of power to administrative agencies constitutional?
a. Constitutional Provisions:
A. Article I: Powers of Congress
1. Section 1: “All legislative Powers granted shall be vested in a Congress…” [Vesting Clause]
2. Section 8.18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…”
B. Article II: Powers of the Executive Branch
1. Section 1.1: “The executive Power shall be vested in a President…” [Vesting Clause]
2. Section 3: “…he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
b. Important Nondelegation Themes and Considerations:
A. Formalist vs. Functionalist
1. Formalism: Certain powers are inherently legislative or executive; the two powers are qualitatively distinct and may not overlap. (
s procedure can cure/ameliorate our concerns
E. Constitutional Avoidance Canon: The Court will narrowly construe all delegated powers that curtail the Constitutional rights of citizens. The Court will only confront such conflicts when there is a clear statement by Congress delegating the challenged authority.
1. Pros: On the positive side, this gives the executive and legislative branches a warning that there are some limits to delegation, and that if it pushes them too far, too explicitly, the entire statute might get knocked down. Similarly, Congress is presumptively trying to legislate constitutionally so if the Court can save a statute it should. Requiring a clear statement limits the degree of dangerous over-delegations of legislative power.
2. Cons: This is the Court ducking the hard question. If there is a constitutional problem the Court should strike down the statute. If there is no constitutional problem then the Court is simply using the clear statement rule to deny the executive power that has been properly (and constitutionally) delegated.
Query: What is the maximum degree to which statutes can be stretched and reshaped in the name of avoidance? (See Schor, majority, for an example of when this is reached).
