AdminLaw Hornstein Fall 2013
I. The Constitutional Boundaries of Administrative Action: ND Doctrine
a. Introduction
i. The existence of federal agencies seems to be in tension with the separation-of-powers scheme in two ways
1. Many agencies seem to combine legislative, executive, and judicial powers
a. Agencies may have “quasi-legislative” power to adopt regulations that control people’s everyday conduct
b. Agencies may have the executive power to enforce those regulations and other laws that the agency is responsible for administering
c. Agencies may have the “quasi-judicial” power to apply those regulations and laws in individual cases
2. Some agencies are somewhat insulated from presidential control, but serve the executive function of enforcing the laws.
b. Agency rulemaking and the delegation problem
i. Defn: the constitution limits on Congress’s authority to delegate some, but not all of its power to administrative agencies when providing an intelligible principle to guide the agency and limit its discretion.
1. Constitutionally, it’s a draw: Article I and Article III direct Congress to make laws and delegate lawmaking power equally
ii. Two lines of cases
1. Federal statutes delegating “quasi-legislative” power to agencies
a. Central issue is whether Congress has given an agency so much RM discretion that Congress has abdicated its responsibility to exercise “all legislative powers” granted in Article I, Section 1 of the Constitution
2. Federal statutes delegating “quasi-judicial” power to agencies
a. Central issue is whether Congress has given so much ADJ power to an agency that Congress has undermined the federal courts’ authority to exercise “the judicial power of the US” granted in Article III, Section 1 of the Constitution.
II. NDD: Legislative Power
a. TEST
i. To determine whether Congress’ delegation of quasi-legislative power to an agency or official is constitutional, it must give the agency an “intelligible principle” to follow in exercising that power.
ii. This is interpreted very broadly
b. Benzene (1980)
i. Facts
1. In 1970, Congress passes OSHAct, which creates OSHA. The agency is directed to create health and safety standards. The Secretary of OSHA is given two directives
a. § 3(8), which applies to any safety standard, indicates that the agency may adopt statutes so long as they are reasonably necessary or appropriate.
b. § 6(b)(5), which applies to standards dealing with toxins, states that the Secretary may set a standard that most adequately assures that no employee will suffer material impairment even if the employee has regular exposure to the hazard dealt with by such standards for the period of his working life to the extent feasible as the best available evidence indicates. This is very health protective.
i. OSHA moved the benzene exposure limit from 10 ppm to 1 ppm at the encouragement of NIOSH
2. A plurality struck this down—the Secretary did not quantify the risk of the toxin sufficiently to enable classification as “unsafe.”
a. SCOTUS found that the Secretary of OSHA failed to make a threshold finding that a place of employment is unsafe.
i. Unsafe—workers are threatened with a significant risk of harm
b. The plurality had a problem with delegation—if the Secretary’s findings were found to be sufficient, then the statute would make such a sweeping delegation of legislative power that it might be unconstitutional.
ii. Rehnquist’s concurrence in Benzene
1. Found that the statutory provisions violated the NDD.
a. The regulation of toxic substances is one of legislative policy—these are hard choices and fundamental policy decisions underlying important legislation
2. Rehnquist’s concurrence is important, but remember, he was incorrect as a matter of positive law! He pointed out 3 important functions of the NDD
a. Ensures, to the extent consistent with the orderly governmental administration, that important choices of social policy are made by Congress
b. Guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an “intelligible principle” to guide the exercise of the delegated discretion
c. Ensure that courts challenged with reviewing the exercise of the delegated legislation will be able to test that exercise against ascertainable standards.
c. History of NDD
i. Brig Aurora (1814)
1. Facts
a. A statute authorized the President to lift a statutory trade embargo against France and England when the President determined that those countries had stopped violating the “neutral commerce” of the United States.
b. One of the parties argued that the statute improperly delegated legislative power to the President by allowing him to decide when the statute imposing the embargo would be suspended.
2. SCOTUS
a. Rejects the argument
ii. Field v. Clark (1892)
1. Facts
a. Congress gave the president the power to raise tariffs on imports IF he found that the foreign country had imposed an unreasonable duty on American products.
2. SCOTUS
a. Congress had granted the president the powers in trade and in commerce, so Congress can similarly empower the president to make factual determinations upon which finding particular legislation will take effect.
i. Congress can enact legislation, the effect of which, depends on the President’s determination t
sible action and defines the boundaries within which prices must be fixed.
b. The statute is constitutional because there is a presence of standards for the guidance of the Administrator’s action, so it can be determined whether the will of Congress has been obeyed.
d. Modern NDD: Whitman v. American Trucking (2001)
i. Facts
1. EPA passes the Clean Air Act (CAA) that instructs the EPA to set primary ambient air quality standards. The standards must be:
a. Requisite to protect the public health with an adequate margin of safety
b. But nowhere are the costs of achieving the standard made part of the calculation.
ii. SCOTUS
1. Is this a violation of the NDD? Is the delegation so broad that it gives too much power to the EPA?
a. The scope of discretion allowed by the Act is well within the outer limits of our NDD precedents. In the history of the Court, we have only found the “intelligible principle” lacking in two cases (Panama and Schechter Poultry)
i. In Panama, there was no guidance for the exercise of discretion
ii. In Schechter Poultry, the Act in question conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.”
b. Here, the intelligible principle is “requisite,” which means sufficient, but not more than necessary.
i. The agency cannot be the one to proclaim the intelligible principle, but it must be in the statute.
iii. The modern court is willing to allow a huge amount of discretion to be left up to agencies.
e. What’s our approach?
i. Do not use the intelligible principle if it looks intelligible to you (??????)
ii. Use analogical reasoning
1. Is this more like the statutes that have been upheld? Why?
a. OR is it more like the 2 statutes that were struck down in 1935? Why?
2. Scalia does this in American Trucking, and
