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Administrative Law
University of Pennsylvania School of Law
Doerfler, Ryan D.

Administrative Law – Doerfler – Fall 2017
Part I: The Constitutional Position of Administrative Agencies
The Administrative State and the Delegation Problem
Administrative law is really the allocation of decision making authority in the federal government (trade-offs of oversight/values)
Congressional statutes are broad, inspecific, but agencies must implement regulations
Problems with broad delegations of power arise
Broad Delegation
Arguments against
Democratic accountability (SOP, agency heads not elected and can evade accountability)
Politicization vs. Democratic accountability
Rule of Law (is there any check at all on agencies?)
Judicial review: available, but harder with vague agency instruction; therefore, there is a loss of judicial check
Arguments for
Greater expertise
Resource constraints (congress is inefficient by design; though they could hire their own experts)
Increased flexibility & responsiveness (only relative inefficiencies – though slow, compare to congress)
Political Insulation (alleviate some decisions from political pressure)
Counter: agency heads nominated by the executive, therefore also avoids accountability
Politicization vs. Democratic accountability
Democratic Accountability
Arguments re: Federal agency’s broad delegation from Congress
A: Congress = responsible for giving EPA authority, and can eliminate/restrict its mandate
P: Power of Default: it’s way harder for congress to act, proximity to specific issue matters wrt accountability
A: A’s are directly accountable to president (appointed, nominated), so the president can take the heat
P: President doesn’t have total authority
Benefits vs. Costs
A: B > C; “So what, it’s worth it.”
Rule of Law – unconstrained policy-making difficult for courts to police
Agency arguments justifying broad delegation in light of this
Other laws police (constitution: due process rights)
Congress can regulate prophylactically, OR cautious regulation, OR vague regulation
 With vauge regulations: delegating authority to court to legislate/decision make
Court delegation
Procedural Constraints
Cong. makes requirements ensuring good decision making.
Constitutional Source: Delegation
(2) The Constitution
*Constitutional Provisions: Art. I §§ 1, 7-8; Art. II §§ 1-3, Art. III §§ 1-2.
*Vesting Clauses. Clauses vesting powers in the individual branches:
    Art. I, § 1: “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.
    Art. II, § 1: “The executive Power shall be vested in a President of the United States of America. . . .”
    Art. III, § 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
            -Note that the vesting clauses relate to the background principle that this is a government ofenumerated powers, and those powers are the only ones each branch can do. Underlies federalism principles. (ex. Whitman, Stevens concurrence, p. 54 – his theory that delegation of legislative power may be justifiable under text of Art. I vesting clause, but is it in keeping with the spirit of federalism and enumerated powers?)
*Art. I, § 6, cl. 2: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . .”
            -ex. Metropolitan Washington Airports Auth v. Citiz for the Abatement of Aircraft Noise, US 1991, p.189:                                                                      -case about congressmen also being on panel to make rules for Reagan airport… note that court found this gave Cong impermissible appt and removal power – but it also seems to violate Art. I §6.
*Art. I, § 7: Gives the procedure for passing legislation. 
    -Art. I, § 7, cl. 2: Presentment Clause – Demonstrates the idea of checks and balances — specifically gives president’s role in passing legislation. Nothing in the text specifically refers to administrative officers. Question: Is delegating legislative power to agencies (who are under the President’s control) basically giving the President power he is not entitled to have under the presentment clause?
*Art. I, § 8, cl. 18: Necessary and Proper Clause. “To make all laws which shall be necessary and properfor carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the Untied States, or in any Department or Officer thereof.
    -May rely on the necessary and proper clause for ability to pass legislation empowering and regulating agencies.
*Art. II, § 2, cl. 1: Opinions Clause: “The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices . . . .”
    -May relate to the way President can relate to administrators?
*Art. II, § 2, cl. 2: Appointments Clause: “[H]e shall nominate, and by and with the Advice and consent of the Senate, shall appoint . . . public Ministers and Consuls . . . and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    -Becomes important in how administrators are chosen, as well as the actual amount of control the president is allowed to have over administrators actions.
    *Note that relatively few Constitutional provisions deal with administrative agencies. One could draw one of two conclusions from this:
        (1) That there is something illegitimate about the use of agencies, or
        (2) The lack of provisions, coupled with the broad grant of power under the necessary and proper clause, indicates the Constitution was designed to give agencies more freedom to act, and that Congress should be free to utilize agencies.
*Art. II, § 3: “Take Care” Clause: “[H]e shall take Care that the Laws
      be faithfully executed . . . .”
        *This will become important for Scalia’s arguments against standing for those simply aggrieved at the agency’s inaction in a given case (ex. Lujan v. Defenders of Wildlife) – that letting citizens force the agency to act is usurping the President’s power to execute the laws.
(3) Interpretation: Formalism v. Functionalism, and others
    *Formalism: Focused on keeping branches completely separate, involves bright-line rules on how things must be limited, constrains congressional creativity. Focuses on categorizing powers as strictly legislative, executive, etc. (ex. Whitman, p. 53: Thomas’s concurrence uses more of a formalist approach, saying that intelligible principle may not be enough to prevent unconstitutional delegation.)
    *Functionalist: Look at core functions and see if you are interfering with the functions of the other branch. Concerned more with checks and balances, making sure that no one branch accumulates too much power.(ex. Whitman, p. 54 – Stevens’s concurrence appears to be the most functionalist in Whitman. He says intelligible principle is enough to make sure that checks and balances are preserved.)
    *Contrasting Methodologies (112):
            (1) Formalism and Functionalism:
                (a) Rebecca L. Brown, SOP & ordered liberty (112)
                        Implications of formalism: (1) Three branches are inherently distinguishable; (2) Bright line rules are to be preferred; (3) Constrains govt’s ability to respond to new needs in creative ways; (4) Ironically, can result in judicial activism since you need to strike down so many laws b/c can’t find express justification in the const; (5) supports majoritarianism — thus coinciding support for the executive branch – a majoritarian institution.

rinciple Standard
Statute: gave president power to adjust tariffs if president finds upon investigation the duties don’t equalize differences in cost of production
Taft (Maj.): Functionalist: uses strong rhetoric (the constitution forbids), but qualifies by giving broad deference to congress
Constitutional arguments: delegation
Against: President exercising legislative power
Vesting Clause
Setting tariffs = legislative activity
The statute at issue gives president the authority to exercise legislative power; violative of Art. 1 Vesting Clause
For: Not legislative activity
Exec act, though seems legislative
No express prohibition: constitution says who has power; but doesn’t include (express) prohibition of delegation
Congress made policy, and the president is implementing it
Cong sets rule: there should be tariff; President putting the rule into practice @ specific point where duties =/= cost of production.
Specific standards
Necessary & Proper: Art. I § 8, cl. 18
Policy Arguments
P: Overly restrictive laws by executive
D: Inefficient law making process; “a feature not a bug”
Separation of Powers
P: Purpose of SOP system (Enumerated powers + Bicameralism & presentment) is to protect:
Individual liberty
State sovereignty
Exec.: A statute was passed; SOP processes not circumvented (B&P)
Cong regulates interstate commerce; & N&P gives cong power to delegate authority to agency
Cong could enact worse statutes (e.g. aggressive tariffs = worse policy)
Direct enforcement of nondelegation = abandoned
Courts engage in indirect enforcement
Narrow Interpretation of A’s Statutory Mandate
Canon of Constitutional Avoidance Doctrine
Court can invalidate action by requiring greater clarity from statute
Triggered where: if a statute has 2 plausible readings:
Constitutional worry reading
Other congressional intent (pick this one)
Kent v. Dulles (passports to communists)
Two constitutional concerns: 5th am and delegation
Held: sec’y acted unlawfully, b/c the 5th am. right to travel denied, BUT court doesn’t reach constitutionality Q.
Unlawful delegation: statute didn’t delegate sec’ty the authority
Industrial Union Department, AFL-CIO v. American Petroleum Institute (BENZENE CASE)
Two statutes at issue; on general, the other has std requirements. Stat: OSHA to adopt stds that most adequately assures to the extent feasible no employee will be harmed. Benzene a carcinogen, OSHA changes exposure standard from 10ppm à 1ppm. OSHA interpreting their organic statute, not considering cost, unless threatens industry.
I: Did OSHA act constitutionally?
PP: 5th Cir. – no, OSHA didn’t account for costs; SCOTUS: 5 opinions
Powell (Concur.): says strike down b/c OSHA didn’t engage in cost benefit analysis
Rehnquist: statute doesn’t instruct OSHA to engage in CBA à no intelligible principle
Marshall: the statute is coherent & intelligent; aggressive statute on its face; “feasible” = clear, best available evidence.
Cost justified =/= feasible; feasible = capable of being done
Plurality (Stevens): non-delegation concern, too broad power to over-regulate, could impose huge costs & destroy industry.