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Administrative Law
University of Pennsylvania School of Law
Zaring, David T.

Administrative Law
Saturday, March 21, 2009
2:29 PM

· Delegation by Congress must lay down by legislation an intelligible principle by which an agency is directed to conform
· Guidelines like “fair and equitable” and “in the public interest” satisfy the modern intelligible principle doctrine
· Mistretta v. United States: Court explained intelligible principle doctrine was “driven by practical understanding that in our increasingly complex society, replete w/ ever changing and more technical problems, Congress simply can’t do its job absent an ability to delegate power under broad general directives”
§ This suggests that Congress needs broad power to delegate in order to fulfill its legislative function effectively
· Whitman v. American Trucking Ass’ns: Congress authorized EPA to promulgate regulations establishing air quality standards at a level “requisite to protect the public health” with an “adequate margin of safety”
§ Court held that provision was well within outer limits of non-delegation
§ Court said degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred
§ Words like imminent, necessary, and hazardous alone are enough of an intelligible principle
§ Court also noted that agency cannot correct an unconstitutional delegation of discretion; the statute is OK or it isn’t, practice of agency doesn’t matter
§ This decision reaffirms that the Court will seldom invalidate a statute delgating quasi-legislative power to a federal agency

Doctrine comes from Art. II Sec. 2
1. Principal Officers
§ President appoints w/ advice and consent of Senate
§ Includes heads of all executive departments, heads of independent executive agencies, Art. III judges, and other high-level officials
§ Congress may condition appointments so long as it doesn’t impede President’s ability to perform his constitutional duty to take care that the laws are faithfully executed
2. Inferior Officers
§ Congress may vest appointment “in the President alone, in the Courts of Law, or in the Heads of Departments” (Congress can retain a say thru Senate confirmation)
§ Distinction b/w principal and inferior is unclear
· Morrison v. Olson: Ind. Counsels inferior because they (1) could be removed (although only for spec. reasons) by the AG, a principal officer; (2)had limited duties; (3) had limited jurisdiction; (4) were limited in tenure
· Edmond v. United States: Military judges were inferior because their work was directed and supervised by principal officers, who could remove them w/o cause
§ Congress may appoint officers that help it carry out its legislative duties (Buckley v. Valeo), but not officers with executive or judicial power
3. Employees
§ No restrictions for employees
§ ALJs of agencies are considered employees (Landry v. FDIC), unless they have final decision-making power, in which case they can be considered inferior officers

· Aside from Art. III judges (with some exceptions), President can remove most principal officers at will

period for appealing the rule
· Logical outgrowth test: amended rules following notice and comment do not have to undergo additional notice and comment if they are a “logical outgrowth” of the originally proposed rule (Connecticut Light & Power)
· Formal Rulemaking
§ This isn’t really used anymore with advent of informal rulemaking
§ It was primarily used for ratemaking, which the Federal Gov’t doesn’t really do anymore
§ Florida East Coast Railroad: For a formal hearing w/ oral arguments to be required, organic statute must call for a hearing “on the record,” or basically call for all the components of a formal hearing
§ § 556 and § 557 formal hearing rights:
· Heard by an impartial adjudicator (usually an ALJ)
· Oral arguments (not required if “paper hearing” would suffice)
· Cross-examination of witnesses
· General trial-type procedures
· BUT Relaxed Rules of Evidence, no hearsay rule, No jury
· Informal Rulemaking
§ Also called “notice & comment rulemaking,” although notice & comment is required of formal rulemaking too
§ Oral hearings are not required, but can happen, but they aren’t trial-like; they’re just speeches to staff members of the agency
§ This is where the bulk of administrative action happens