Administrative Law Outline
PART ONE: Sources of Legal Constraints on Agency Action
I. The Constitution and the Administrative State (Separation of Powers)
a. Competing Concepts of Separated Powers: Formalism v. Functionalism
· Historical Understanding: Framers desired to have a system of government based on separation of powers among the 3 branches of government. This served as a check on powers of each ensuring that no one branch exceeded its authority granted by the Constitution
Ø Think: aggrandizement and encroachment. Prevent one branch from encroaching upon another. Prevent branch from aggrandizing itself (make itself pre-eminent over other branches)
· What happened? Landis: Tripartite form of govt became inadequate to deal with exigencies of administration of the federal government. Therefore, agencies were created whose functions embraced the 3 aspects of government.
· Problems of Constitutional silence (Strauss p. 38): Constitution only creates the apex level of govt but not the machinery of govt. There must be an effective means of oversight so that the core functions are preserved. (P. 39): The problem is finding a way of maintaining the connection between each mandated bodies continues to serve its paradigmatic functions while maintaining the reality of govt (while respecting concerns of control and law).
· How to reconcile 18th century vision of SOP with modern day needs of administration by the federal government?
Ø Functionalism: concerned with particular exercise of power of an agency and whether it illegitimately interferes with the “core function” of another agency. Issue is “aggrandizement”. As long as concentration of authority is subordinate to the branches of govt, the 18th century vision is equally preserved and constitutional.
a. Functionalists accept any distribution of power so long as it does not undermine the intended distribution of authority among the President, Congress, and the judiciary.
b. 3 criticisms of Functionalism
i. No meaningful limitation on interbranch usurpation of power remain
ii. Under appreciate the corrupting effect of power
iii. Do not concern itself when department has power taken away from it
Ø Formalism: application of rigid rules rather than flexible standards approach to legal problems. If agency’s authority is not ancillary to the proper functioning of the branch of government, agency is in violation of SOP. There is to be no commingling of legislative, executive, or judicial power unless specifically provided for in the constitutional text.
i. Although it pays due respect to framers original intent, it would make much of modern administrative state unconstitutional. You could argue that framers only set the apex level but knew that government would need some delegation to function properly.
ii. Argument that formalistic approach allows for more case-by-case analysis is spurious at best. In reality, the functionalist approach also allows for more case-by-case analysis and courts would probably do more detailed inquiry as to whether core functions have been infringed. To me, it would seem that formalist approach would cut off much debate about whether delegation was unconstitutional by declaring that anything remotely outside of the department’s main duties would be an unconstitutional delegation.
b. Agencies and Article I: Constitutional Constraints on Legislative Delegation?
· Historical Nondelegation Doctrine: whether Congress has delegated to other branches of government purely legislative authority
Ø Discretion Problem: Any time authority to agent, there is a problem of agency acting in its own interests. What is needed to prohibit agency from abusing (aggrandizing) its discretion
Ø Questions: How much delegation without encroaching on the core functions ofhte 3 branches of govt? At what point does discretion becomes so great that it constitutes an abdication of its constitutional rule as the people’s leg.?
Ø Wayman v. Southard (1825): Congress can not delegate to Courts, or to any tribunal, powers which are strictly and exclusively legislative. But Congress may delegate to others, powers which the legislature may rightfully exercise itself.
· Beginning of change in J.W. Hampton Jr. v. US (1928): Court noted inherent necessities in governmental coordination in upholding a statute authorizing the President to alter amount of duty on certain imports in order to equalize costs of production between the US and the exporting nation. However, the Court introduced “intelligible principle” as a way for Congress to constrain President’s discretion.
Ø “If Congress shall law down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to confirm, such legislative action is not a forbidden delegation of legislative power.
· The New Deal
Ø Panama Refining: President was authorized to prohibit the transportation in interstate or foreign commerce petroleum in excess of any state or valid regulation. Issue was whether this was an unconstitutional delegation of legislative authority to the President with unchecked discretion. Court laid out 3 point criteria to determine whether authority was unconstitutional:
a. (1) Look to statute to see whether Congress has declared a policy with respect that statute (2) whether Congress has set up a standard for the President’s action (3) whether Congress has required any finding by the President in the exercise of the authority to enact a prohibition.
b. Court: Congress set up no policy as to the transportation in excess production; President has unlimited authority to determine policy and lay down prohibition or not; violation of his order is criminally punishable by fine and imprisonment.
c. Court: Congress is not permitted to abdicate, or transfer to others the essential legislative functions with which it is vested. The Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicability, which will enable it to perform its legislative function while allowing seleted instrumentalities the making of subordinate rules within prescribed limits but…the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. In this case, Congress “has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which transportation is to be allowed or prohibited.” Basically, there was no intelligible principle.
d. Cardoza’s dissent: Principle was defined. Argued for ‘elasticity of adjustment’ in response to practical necessities of government administration. Takes a Functionalist position.
Ø Schechter Poultry: Statute allowed President to approve
ion substantial discretion in formulating guidelines, in actuality it legislate a full hierarchy of punishment and stipulated the most important offense and offender characteristics to place defendants within these categories.
§ Court affirmed wide discretion and significant exercise of judgment but noted that as long as it was not impossible to ascertain the will of Congress was obeyed would the Court override delegation.
e. Scalia’s Dissent
§ Ancillary Test: in this case the Commission was not ancillary to court’s function
· It’s not really about whether or not delegation was excessive
· Formalistic approach
§ Congress created a junior varsity
Ø Benzene Case (Industrial Union Dept, AFL-CIO v. American Petroleum Inst.) (SC 1980)
a. OHSA authorized Sec of Labor to regulate the occupational exposure to benzene, a substance known to cause cancer at high levels.
b. Act: § 3(8): “reasonably and necessary or appropriate to provide safe or healthful employment and places of employment”. This provision defines standard SofL is to promulgate
c. Act: § 6(5): “shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.”
d. SofL position: § 6(5) requires him to set the exposure limit at the lowest technologically feasible level that will not impair the viability of the industry. Therefore, because there was a causal connection between benzene and cancer at high levels and it could not be determined that there was any ‘safe’ level, the Sec set exposure level to 1ppm, etc.
e. Issue(s): (1) Was COA correct in refusing to enforce the 1 ppm exposure limit because it was not supported by appropriate findings? (2) If there is scientific uncertainty and the Sec can not determine when there is a safe level, can the Sec impose a standard? (3) What should the Sec include in what’s feasible?
f. Important Note: OSHA did not seek comments as to whether benzene levels at less than 10ppm proposed serious health risks. Also, the capital improvements would be mostly borne by petroleum industry who have the least number of employees affected by benzene.
g. Court’s rationale
§ Adverse effects of benzene exposure at 10 ppm is sketchy at best. No study was done connecting significant risk of non-malignant disease at exposures of 10 ppm or less
Evidence linking leukemia to benzene exposure levels is more sketchier. There was only 1 study of 25 ppm with any evidence of increased risk. This Dow Chemical study showed 3 people died of leukemia but