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Administrative Law
University of Illinois School of Law
Rowell, Kristen Arden

Administrative Law Rowell Fall 2017
 
Day 1: Substantial Independent authority standard: it is an agency if the agency is an authority of the government. Office of Administration is not an agency. (8-28)
 
Day 2: When can Congress delegate legislative authority to agencies? (8-29)
Generally, the constitution does not prohibit delegation. Panama & Poultry cases are exceptions
The cases show us what an “unconstitutional” delegation of powers looks like.
When Congress sets an intelligible principle standard that the agency can follow to carry out its decision-making powers, then delegation is fine. (When agencies are utilizing decision-making, not legislative, powers.)
American Trucking – it must be so bad, that a court must step in & rebalance.
 
Panama – Congress may only delegate rulemaking power to another branch of it also provides clear policy standards. Here, delegation was unconstitutional because it gave President unlimited power and no guidance. Test: intelligible principle standard: there must be delegation instruction to the executive branch.
 
Poultry: Again, delegation was unconstitutional because no intelligible principle existed Golden paragraph (Pg 34): Act is without precedent, not rules of conduct, authorized the making of codes to prescribe them, no standards, broad delegation.
 
American Trucking: Clean Air Act delegation from Congress:  “to protect public health with an adequate margin of safety.” This is an intelligible principle because the EPA is working within the parameters given. Delegation was constitutional.
 
Day 3: How may Congress influence agency action? (9-5)
May only use those methods to control agencies that flow from its constitutional powers. Courts may therefore be suspicious of anything that looks like Congress trying to get out of their constitutional processes.
 
Congress may: Pass legislation that tells Congress what to do explicitly OR pass generally applicable Statutes i.e. FOIA, APA, etc… OR other methods (pg 126-127)
 
Why else can’t congress act in any way that it wants? (Cases below limit Congress)
 
INS v. Chada: two problems with the legislative veto (1) violates presentment and (2) violates bicameralism. This puts limits on how Congress can circumvent legislative action or other legislative procedures identified in the constitution. Constitutional opinion on how it is that Congress can influence agency action.
 
Bowsher v Synar: handing power over to the comptroller is problematic because Congress has the authority to remove the comptroller. Could have left it with OMB, so giving it to comptroller appears that they were trying to leave this power for themselves which is problematic under Chada.
Day 4 (easy): How much control over agencies may the President exercise through Executive Orders? Answer: Youngstown v. Sawyer AKA Steel Seizure Case (9-11)
 
When the President acts with Congressional approval, he can rely on both his own powers and Congress's. [President is strongest]  
When a President acts without an express grant of denial of Congress's powers, meaning Congress is silent, he acts under the aggregate of his own independent powers. [President is in a zone of twilight]  
When the President is going against Congress, he may rely only on the powers expressly granted to him by the Constitution. [President is weakest] (This was President Truman, whose EO to seize the steel mills was unconstitutional)
 
Day 5:  What power does the President have over agency personnel through the appointment power? (9-12)
 
General Rule: If it is an officer (including an inferior officer), then only President has the power to appoint them, not Congress. [See notes on formalism versus functionalism]  
Buckley v. Valeo: Commission members chosen by both President & Congress. Is this method of choosing members a violation of SoP?- Yes, Congress overstepped here.
 
Is the appointments clause the exclusive means by with officers can be appointed?- Yes for principle (including inferior) officers.
 
We know who is an officer by the significant authority test. [Formalist Case]  
Congress exceeding its authority by allowing its appointees to serve more than just legislative functions i.e. authorizing its own officers to make appointments to the FEC.
 
Landry: This ALJ is not an officer – they cannot render final decisions. Therefore, Congress could appoint the ALJ because he is a mere employee and thus not subject to the appointments clause of the President. When does an ALJ count as an employee or an officer? – It depends on their duties and finality of decision- making.
 
Takeaway: Landry helps define significant authority by adding final decision-making authority to the definition. If significant authority exists, then that person is an officer and could only be appointed by the President.
 
Freytag:  B/c the tax court is a court of law within the meaning of the Appointments Clause, Congress may authorize the tax court’s chief judge to appoint inferior officers, such as special trial judges. The tax court is a court of law;

member, this case deals with the Atty. General having the power to remove the inferior officer, but the President not having the authority unless he has good cause.)
Holding: No
A good cause standard for removal itself does not unduly trammel on executive authority.
independent Counsel is an inferior officer under Appointments Clause.
Good cause is not defined in the case under the Act.
It does not deprive President of his executive authority to carry out laws
 
Scalia – Dissent: The lines are now disseminated and the Constitution provides the President more protection.
 
Morrison v Olson Day 2: Background:
Special Counsel/ Independent Counsel who is too be removed by the Atty General.
Is the President able to remove them?
This case says no unless it is for good cause.
The dissent is where the current view is headed though.
Ethics and Government Act – authorizes the appointment of an independent counsel to investigate government officials.
Special counsels under Nixon- not protected from Presidential oversight.
Appointment Question:
Inferior Officers – Independent Counsels
Test Factors: Subject to oversight AND Limited tenure
Initial appointment would have been unconstitutional if the officer were a principal officer.
What is the relationship between appointment and removal?
Removal Issue:
Could be removed for good cause
Once the job that the independent counsel does commences.
Executors are purely executive.
These folks are “executive.”: The court says that Congress is attempting to limit Presidential authority.
 
Scalia's Dissent: Concerns as subordination being the “keystone” test to determine inferior vs. principal. This is straightforward for removal: the President has all authority. The President has control over prosecutorial authority and should be able to remove a prosecutorial officer.
But appreciate the difficulties here: where the counsel is engaging in investigations of the President or high-ranking officials themselves.