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Administrative Law
University of Illinois School of Law
Sharpe, Jamelle C.

Administrative Law Outline
Fall 2009
Professor Sharpe
Delegationà Congresses’ authority to delegate legislative power to the agency and its power to authorize agency courts to adjudicate disputes. Also, there are issues about the ability of Congress and the Prez to control agencies.
1.    General Rule: Article 1- all legislative powers granted to the fed gov’t were to be vested in Congress. Idea that peeps allocated this power to congress so couldn’t be delegated to others like admin agencies.
2.    Modern Rule: JW Hampton v. US- Congress must lay down an “intelligible principle” for the agency to carry out to delegate policymaking authority
a.    Delegate (Prez or agency administrator) must conform their discretion
b.    Standards for delegation loosen
3.    SCOTUS has only invalidated statutes on non-delegations grounds twice (and not since then):
a.    Panama Refining Co. v. Ryan (1935)- “Hot Oil Case”:
                                                  i.    Factsà NIRA allowed Prez to ban the sail of oil. However Cong had not declared any policy or standard/rule for sale, therefore there was no condition or circumstance in which transportation was allowed/prohibited
1.    Beginning of the courts putting narrow restrictions on delegation (seen in earlier cases)
                                                 ii.    Reasoningà “Legislate” was defined by the court as ‘circumstances and conditions needed for government enforcement.’ The statute, §9(c), gave “legislative” power to the President because he would have had to decide the conditions and circumstances for gov’tl enforcement. Broad interpretation of the Necessary and Proper clause cannot be allowed, because this would destroy everything else in the constitution – anything could be ‘necessary’ or ‘proper’. Hughes looks at art 1 sec 1- vesting all legislative power in congress. Also said can’t use N&P clause (notes pg 5)
1.    SCOTUS struck down NIRA §9c and other related exec orders as unconstitutional
b.    Schechter Poultry Corp. v. US (1935): Sick Chicken Case
                                                  i.    SCOTUS strikes down NIRA §3- “codes of fair competition” can be approved by Prez for metropolitan industry and other locations- because:
1.    It did not provide for specific rules governing regulated industries, no standards or procedures to guide presidential rulemaking (congress should have created instrumentalities to provide rules- standards to which rules should conform)
                                                 ii.    Congress Can delegate rulemaking power when it:
1.    Makes the standards governing those rules clear (i.e. fact finding based on publicly disclosed evidence). Congress must at least tell the Prez what the rules should look like for administrative procedures application.
4.    Yakus v. United StatesàSCOTUS found sufficient guidance to the administrator when EPCA allowed price fixing by a federal administrator to stabilize markets for economies. But squishy terms were provided like “fair and equitable” and “if practicable”
a.    Administrators can make the rules but congress must set the parameters as to what would be acceptable. Congress can narrowly or broadly define the facts on which enforcement is based, as long as boundaries are identifiable and defined clearly. Flexibility to the amount of discretion to admin branch.
5.    Reconciling Yakus and Schechter:
a.    Conduct vested w/ the authority differs in these two cases:
                                                  i.    NIRA vests Prez with power to approve/disapprove conduct (S)
                                                 ii.    Art 1 Sec 1- vesting theory- S- must have a minimum standard for rules that the president/admin agency must conform to- no unfettered discretion.
b.    Separation of Powers-
                                                  i.    NIRA- power went directly to Prez. (S) Power directly to Prez, under congress. Guidelines are more specific than NIRA.
                                                 ii.    EPCA- power to administrator of the office of price admin. The EPCA was turned into an independent agency and was not part of the exec branch. (Y) Basic rules were can be enforced and whether needed enforcement- adheres under certain circumstances.
6.    American Trucking v. EPA (D.C. Cir. 1999)
Clean Air Act §109 – requires that EPA set national standards for air pollutants at a level ‘requisite to protect public health’ and ‘requisite to protect public welfare’ with ‘an adequate margin of safety’. EPS issues National Ambivalent Air Quality for criteria pollutants (NAAQS). States were to develop State Implement Plans (SIPs) to bring air into compliance with national/Federal regulations. Permits were to be issued upon approval by EPA. 
a.    FACTS: The way EPA chose the final requirement for ozone to satisfy the Clean Air Act was in dispute, first set 0.08 ppm/hr, then 0.12 ppm/hr, then chose 0.08 ppm/8 hrs with huge economic impact range.
b.    HOLDING: This was an unconstitutional delegation of legislative power because standards were not defined well enough – there was no ‘intelligible principle’.  When the Agency develops determinate, binding standards for itself it is 1) less likely to delegate authority arbitrarily, 2) it enhances the likelihood that judicial review will be more feasible, and 3) ensures choices of social policy are made by Congress, the branch most susceptible to popular will.
c.    REASONING: Why pick 0.08, why not 0.07 or 0.09? Only level known with certainty was zero, so how much uncertainty is too much? The EPA was not allowed to consider cost, if it could have, a cost-benefit system could have been used, they could have set limit where cost to comply and risk to the public are most beneficial.
7.    Congress writes statutes with varying levels of specificity because they want to give the agency an appropriate degree of discretion in implementing the statute. But what is appropriate? (I.e. Tax code is way specific w/ bright line tests v. the radio act of 1927- broadly empowering the federal radio commission to allocate frequencies and license radio stations “in the public interest”)
a.    Legislators might want more control overt things the public cares about more-
                                                  i.    They will be blamed if the statutes are too broad and it messes up
                                                 ii.    Legislators might want more contro

ality of the veto.
Legislative veto in this statute: Unicameralà Alien is subject to deportation proceedings. IJ decides whether or not to suspend deportation proceedings. Decision then goes to Congress. If one house vetoes then back on deportation claim.
                                          i.    Cong gave discretion and now wants to make sure that the agency is applying their legislation properly. Check on the admin agency, don’t have time to review all cases. Delegated it to the agency but they still get a final say. More flexibility with power to check or review. (Now not deported without a hearing- flexibility to see circumstances)
Essential Q: Was it legislative? What is legislative?
                                          i.    Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect” page 45
1.    Cong is acting pursuant to one of its powers. With respect to individuals burger gives more guidance:
a.    Examination taken by one house reveals that it was essentially legislative…has the purpose and effect of altering the legal rights, duties, and relations of persons, including the attorney general, executive branch officials, and Chadha, all outside the legislative branch.
RULE: (CJ Burger) A legislative veto by one house violates the principles of Article I of the constitution. The framers said that all legislation be passed by both houses of Cong and presented to the Prez. Here the House’s action was legislative and had to follow this procedure.
Concurrence (Powell)- Ct App should be affirmed b/c the House’s action was judicial, not legislativeà violation of separation of powers
Dissent (White): Veto was Congress’s method of reserving the last say on authority it delegated away from itself. Court’s holding will hurt the legislature’s necessary authority to delegate. Here, Congress was not increasing its power at the expense of other branches and the AG was not changing Chadha’s deportation status (can only make suggestions), making it a non-leg act, so it’s not subject to Art. 1. Cong has the ultimate power to change deportation status.
Dissent (Rehnquist): Feels that severability is at issue. Congress has refused to give up authority to the Executive branch and courts should not interpret the statute to defeat that intent. Without the legislative veto, Congress would not let INS or DOJ decide such matters. If veto is struck down, so is the whole statute (severability issue).