II. The Constitutional Framework of Administrative Lawmaking
Emergence of the structural Constitution is a force that may limit how agencies are organized, empowered, and overseen.
I. Separation of powers- admin arrangements may violate particular provisions of Art. I, II, & III or the separation of powers.
(A) Generally
Purpose generally: To prevent any one branch from obtaining too much power (might result in tyranny).
Ex. “That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” (Field v. Clark)
PROBLEM- Existence of federal agencies appears to be in tension with the sep-of-powers scheme because:
An agency may have quasi-legislative, quasi-judicial, and executive power to enforce those same regs.
Independent regulatory commissions are somewhat insulated from presidential control/oversight. This seems to conflict with Art. II, §3 presidential duty to “take Care that the Laws be faithfully executed.”
Many would say agency is a “headless 4th branch” because executive departments are too large to be controlled, even by the President.
SOLUTION- Headless 4th branch claim is an exaggeration because (see also infra):
Agency’s authority comes from Congressional organic statutes, not the Constitution (so agencies are reliant on Congress for existence); subject to Congress’s control over the agency’s budget; legislative power of inquiry
Agency rules and adjudicative findings are subject to judicial review.
(B) Court’s approaches in considering admin law questionsoften in light of Const provisions; p. 112-18.
Formalism: Bright-line rules to foster predictability and judicial restraint; sharp separation of branches and their powers. Under formalism, the court usually strikes the measure.
Problems:
Hurts govt. ability to respond to new needs in creative ways;
Ironically, forces the Court to engage in judicial activism, because true formalism would require the Court to strike any action for which there was no express textual justification in the Constitution, even where branches agreed in the use of certain powers.
Supports majoritarianism (more power to Executive at the expense of Congress, the branch that has most often initiated new modes of sharing power).
Restricts sharing of power and encourages branch independence
Functionalism: Emphasizes the overall schematic of the Constitution and focuses on creating a “workable” government. Focus under this approach is whether an administrative scheme undermines the “core/central” functions of another branch. Sharing powers is ok as long is there is no fundamental violation of the separation of powers. Greater discretion to judges. Under functionalism, the court usually upholds measure.
Problem:
Allows great judicial discretion (unelected judiciary decides ad hoc which functions are “core/central” Allows for judicial activism.
Supports majoritarianism (Congress and Executive, the two political branches can both agree)
Purposivism: Focus on individual liberties and fairness of the process to individuals
Abstentionism: Judicial branch should be hands off; political branches should deal with Constitutional issues
Public Choice Economics: Dividing powers is good because the transaction costs of influencing govt. action by special interests (self-interested branches) is higher when powers are divided between branches. Large vague delegation by Congress (to avoid making decision which affect interest groups) is bad because it lowers transaction costs of interest groups.
(C) Delegating Legislative Authority
“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. I, §1.
“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution …” Art. I, §8, ¶18
This doctrine guarantees the following (through a court’s determination) (otherwise an unconstitutional delegation of power):
o (1) Congress decides matters of social policy;
§ It is the branch most responsive to popular will.
o (2) the recipient acts in accordance with an “intelligible principle;”
§
s limited discretion, then less need for legislative guidance via an intelligible principle. But if national standards to be decided, then need more guidance (still low).
§ Other cases suggest that broad delegations can meet the intelligible principle test where the delegation is accompanied by procedural safeguards
o (3) judicial review is premised upon an articulated standard of conduct (relates to intelligible principle).
(D) Delegating Adjudicative Authority
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.” Suggests there is only one judicial power.
· Under the Constitution, Congress can establish the judicial structure of the courts. BUT by giving adjudicative power to agencies, it is creating judicial jurisdiction in institutions outside the Judicial Branch of Art. III.
· Central Issue: Has Congress undermined the authority of the federal courts to exercise the judicial powers under Art. III, §1, by delegating it to agencies?
· Practical reasons why the judiciary doesn’t strike down the legislation that usurps its powers:
o Eases caseload where there is a crowded federal docket
o These adjudications can be boring
o Agencies may have more expertise; better suited to expeditiously handle the claims (Note that the specialization/expertise was a mere byproduct of Congress’ desire to create entities attuned to particular problems- Jaffe & Nathanson)
o Appellate jurisdiction still allows courts meaningful review (but if a very tight standard of review, then courts may be more concerned about losing power)
Deference to elected officials
