Hornstein Admin Law Outline- Spring 2015
I. The Constitutional Boundaries of Administrative Actions
A. Agency Rulemaking and the delegation problem
General Rule: Congress may delegate to an agency quasi-legislative powers. It will be deemed unconstitutional if Congress fails to provide the agency with an intelligible principle to follow in exercising that power.
· To determine if a statute has an intelligible principle, analogize to the cases that we have studied that have either struck down or upheld a statute.
· Discretion within the agency is not fatal to the statute.
o Struck down:
§ Schechter: trying to delegate to a nongovernment entity the ability to regulate everything about the national economy. à obviously overbroad
· Emergency conditions don’t make overbroad delegation okay.
§ Panama Refining: gave regulatory authority over ALL oil and gas development everywhere in the country without any standard whatsoever.
o Upheld:
§ American Trucking: EPA to develop primary air quality standards required to protect public health with an adequate margin of safety
§ Yakus: gave the authority to set maximum prices for commodities based on basic conditions for setting prices à Upheld a statute with broad discretion.
Non-delegation doctrine prevents overly-broad delegations of power to executive agencies. It is a very weak doctrine.
· Has not been used since Schechter, Panama Refining, and Carter to invalidate a federal statute.
Case Law:
· The Benzene Case (1980):
o Congress passed OSHA and delegated to OSHA to develop standards that are reasonably necessary or appropriate to having a safe workplace and make standards based on best available evidence that most adequately assures that there will be no material impairment to the employee, to the extent feasible. à pretty health protective statute.
o OSHA lowered the limit to 1ppm and argued that it had a statutory duty to regulate carcinogens to the lowest possible level of exposure that was technologically and economically feasible.
o HOLDING: Construed the statute, in part on non-delegation grounds, to require a threshold finding of a significant risk in the workplace before the agency was authorized to promulgate a workplace safety standard.
§ Without the significant risk requirement, the statute might be unconstitutional under the non-delegation doctrine because the lack of guidance on when the agency was authorized or expected to pursue the goal of a virtually risk-free workplace.
o J. REHNQUIST CONCUR: Argued that the agency’s choice of when to pursue the goal of a virtually risk-free workplace is statutorily unconstrained. Argued that the Court should reinvigorate the non-delegation doctrine.
§ This ultimately failed as we see from how the Court treated the non-delegation doctrine in subsequent history.
· Since Benzene, the Court has consistently rejected non-delegation challenges. In American Trucking, it seemed to be the chance that the doctrine would be revived.
· American Trucking (D.C. Cir. 1999):
o Congress passed the Clean Air Act. Delegated to the EPA the authority to adopt standards for how clean ambient air needs to be to protect public health within an adequate margin of safety. Congress gave guidance by naming certain pollutants to look at and further guidance for when they are looking at particular pollutants.
o Reaffirmed the intelligible principle test for deciding whether a statute contains sufficient guidance to pass muster.
§ Held that the CAA’s language, requiring standards that are “requisite to protect the public health” within an “adequate margin of safety” easily meets that test.
Arguments for stronger non-del doctrine
Arguments for a looser non-del doctrine
Original meaning
Founders vested the legislative power in Congress in Art. 1 § 1 and that’s where it should stay.
Founders gave Congress the N&P Clause, so if they think its N&P to delegate, then we should
Democratic Legitimacy
We should be able to elect the people who are making the rules we must follow
Legislation is more transparent than rulemaking by separate agencies.
Congress is more susceptible to special interest decision-making and agencies are less likely to be biased.
APA serves as a check on what agencies do.
Wisdom
Congress has omni-competence and would be better at overall decision-making.
Agencies have more specialized knowledge about what they’re working with.
Tyranny
Prevents Executive Tyranny
Take-away: There are good arguments on both sides of this normative debate. However, this balance isn’t reflected in the positive law because it favors a weak non-delegation doctrine. Why?
The Court may find it impossible to construct a doctrine precise enough to enforce
Doesn’t present a problem of aggrandizementà one branch seizing power at the expense of another, because Congress voluntarily delegates discretion to the executive branch and is free to reign it in any time.
Federal courts find it easier to interpret statutes because they basically don’t have to say anything and give no direction. Having a strong non-delegation doctrine would make it more confusing s
nd empirical analysis so everyone weighing in wouldn’t provide that much more information.
Case Law:
· Londoner (US Supreme, 1908)
o Facts: City of Denver paved the taxpayers’ roads and tried to assess the cost to them. City Council and Board of Public Works in the City of Denver were given a process about how to make decisions about whether or not to improve the roads: (1) Board of Public Works sets a resolution/proposal and a majority of the landowners must approve it; (2) City Council must pass the resolution—has authority to determine conclusively whether the action of the Board in step one was duly taken; (3) Due notice and hearing for the landowners and then assessment of cost upon them.
§ Board submitted a resolution to the Council but it wasn’t supported by a majority of the landowners. Council used its conclusive ability under step 2 and approved it. Landowners were outraged and sent a letter of their objection. Council didn’t give the landowners their required hearing and even met in a specifically called out session and not in the stated location to approve it.
o HOLDING: Before an individual assessment can be made by the gov’t, the DP Clause requires notice and some kind of hearing. The gov’t deprived them of their property (tax money) so they deserve some sort of hearing.
· Bi-Metallic (US Supreme, 1915):
o Facts: Colorado Tax Commission is trying to increase property values in Denver by 40%, thus resulting in higher property tax. The residents did not get notice that the Tax Commission was going to do this, and had no opportunity to be heard.
o HOLDING: Before the gov’t re-determines, generically, property values for tax purposes all of the property in Denver, the DP Clause requires nothing.
§ Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. They are given a voice in the legislative process and that is enough. There must be a limit to individual argument in such matters if the gov’t is to go on.
B. The procedural models of the APA: rulemaking and adjudication.
Rule: To determine if an agency’s action under the APA is adjudication or rulemaking, we must look at the definitions in the APA § 551:
· Adjudication: Means the agency process for the formulation of an order.
