ADMINISTRATIVE LAW
MASTER OUTLINE
Professor Flournoy, Fall 2007
I. Background Information
A. Types of agencies:
1. Cabinet level: all headed by someone w/ the title “Secretary”
i. pretty strong presidential control over these
2. Agencies w/in Cabinet Agencies
3. Quasi-Independent Agencies
4. Independent Agencies: not created by the Constitution but have been allowed.
i. agencies specifically created for the aid of one branch (generally the Legislative) and its acts should not have an effect outside that branch. Where there is no effect outside the branch, they are controlled by the branch, but where an effect may felt outside, issues may arise. (creates issues of appointment and removal of officers – Morrison)
B. Role of agencies:
1. Investigate / research
2. Develop rules and policies to implement statutes
3. Issue permits
4. Conduct research
5. Disseminate info/ educate public
II. Non-Delegation Doctrine à Congress cannot delegate its “Legislative Powers”
***Q here is whether the delegation of power is valid****
A. Source – Art 1. Sec 1, all Legislative power in “vested in Congress” and Congress is to make all laws (sec. 8). Thus, by implication, such power is not in the Executive or the Courts.
B. Rationale:
1. Accountability – Congress is elected while agency officials are not
2. Checks and balances b/w branches – balance of powers
3. Judicial Review requires clear mandates from the Legislature
C. Delegation that is clearly unconstitutional: “we delegate lawmaking power to the President”
D. Delegation that is clearly constitutional: “we direct the president to eliminate land disposal of mercury” by a certain date and giving authorization to make policies to accomplish this
E. Standard: There must be an intelligible principle from the Legislature:
1. Set some goals
2. Set some broad measures to accomplish the goals
3. Set some constraints on the executive
***The point is to place some sort of constraint on discretion. The Courts understand that it cannot be too particular***
F. Development:
1. Upheld delegation of policy-making authority:
i. Brig Aurora (16) à Delegation was contingent on certain findings of fact.
ii. Field v. Clark (16) à Upheld presidential authority to suspend under the Tariff Act was contingent on a condition that did not exist at the
g delegated is the same. It just has to be limited
2. Stuck down:
i. Panama Refining (1935) (17) à Court found invalid the delegation of power to embargo oil from any state because there was no guidance as to whether and when to use the power
a. Barely set any goals, AND
b. No constraints on how to exercise the power
1. The vague goal alone might have been OK
ii. Schechter Poultry (1935)(17) à Court invalidated the President’s authority to approve codes of conduct for specific industries because the statutes had too broad of purposes and the “accountability rationale” was violated by industry participation in the process
a. broad purposes
b. delegation to private parties
c. vast scope à would affect whole economy (this discretion was too broad)
d. criminal penalties for violations
Use à The Court has not struck down a statute on this basis since 1935, but it has used the theory as a basis to narrowly construe broad statutes
