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Administrative Law
University of South Carolina School of Law
Powell, Burnele Venable

Notice and Comment
1.                Nondelegation Doctrine
a.                      Permissible Delegation- filling in the details (old test)
                                    i.                                 Brig Araura (1813)- court upholds congressional delegation to the president to decide when to lift an embargo
                                  ii.                                 Congress had made the policy decision and left it up to the executive to determine when certain facts were found to exist
b.                     Intelligible principal test
                                    i.                                 Agencies no longer seen as mechanically filling in details but actually acting with discretion
                                  ii.                                 Current Test
1.                                  Any intelligible principal will do- even if the agency is not, at first, clear what it is
2.                                  Does the law define the scope of the area in which the agency may act
2.                3 concerns with delegation
a.                      Political cowardice- congress should be making these decisions
b.                     Political aggrandizement- one branch gains power at the expense of another
c.                      Political encroachment- one branch exercises the authority of another branch (not necessarily to take power away from the other branch, more when they think they have the authority that they don’t or don’t realize they are doing it)
3.                Ultravires
a.                      Agency is acting outside of the scope of authority given it by congress
4.                Development of Intelligible Principal
a.                      J.W Hampton- (1928)- court announces intelligible principal test
b.                     New Deal (strict nondelegation)
                                    i.                                 Panama Refining (Hot oil)(1935)-
1.                                  President was given power to exclude petroleum products from interstate commerce if they were produced in violation of state law
2.                                  Court says too broad because there were no standards to guide the president
3.                                  Dissent: allow sensible approximations: is it an overly broad delegation?
a.                                         does the agency operate with a restrained administration,
b.                                       is the agency known to be a competent agency
c.                                        is the political climate likely to be supported
                                  ii.                                 Schechter (Sick Chicken)(1935)
1.                                  President could make codes of fair competition binding on poultry producers
2.                                  Court says not enough guidance for the president as to which standards to adopt; also standards were created by local producers not bureaucrats.
3.                                  Legislative power is “uncanalized power”
                                 iii.                                 Carter Coal (1936)
1.                                  Local boards were given power to set coal prices in their districts
2.                                  Delegation was to private parties , not even to bureaucrats
c.                      Lenient nondelegation
                                    i.                                 Yakus (1944)
1.                                  Court upheld a delegation to an agency to fix rent price ceilings
2.                                  Delegation was a “practical necessity”
3.                                  Broad delegation of discretion was permissible as long as discernable boundaries for the discretion existed
                                  ii.                                 Fahey v. Maloney
1.                                  Delegations that might not be sufficient in certain circumstances will be deemed sufficient if the agency has a long standing practice of regulation in the field
2.                                  At an operational level this allows the government to do things like take over banks (e.g. Wachovia being forced to become part of Wells Fargo)
                                 iii.                                 Kent v. Dullus
1.                                  Sec. of State may refuse to issue a passport, in his discretion.
2.                                  Due process and freedom of speech were violated by Sec. having too much power-
3.                                  so even broad delegations can be limited by the court if they will override a constitutional principal
                                iv.                                 Mistretta (1989)
1.                                  Intelligible principal test used to uphold the federal sentencing guidelines
2.                                  The declaration of policy goals and specification of factors to consider were enough to find and intelligible principal
3.                                  Delegations do not have to contain a “determinate” criteria
                                  v.                                 Booker case
1.                                  Court holds that only matters in the trial record can be used to impose a sentence- even if other things are in congressional guidelines
2.                                  Court says sentencing guidelines are encroachment.
a.                                        Court not bound by them
b.                                       But court is free to consider the guidelines
d.                     Attempted revival of nondelegation- Whitman v. American Trucking (1999)
                                    i.                                 Clean Air Act- EPA must establish air quality standards “requisite to protect public health” within an “adequate margin of safety”
                                  ii.                                 DC Circuit court said this violated nondelegation because the EPA had not adopted an intelligible principal to confine its own discretion. No principal set in the statute or EPA regs to guide what level there should be for various pollutants. So remand to EPA so they can figure out how to act within an intelligible principal.
                                 iii.                                 Supreme court reverses DC Circuit
1.                                  Reaffirms intelligible principal test
2.                                  Finds statute meets the test
3.                                  Rejects DC Circuits reasoning
a.                                        Cannot cure bad delegation by the agency not exercising the full extent of its power- that does not cure the violation of the separation of powers
b.                                       The choice of what portion of the power to exercise would itself be an exercise of forbidden legislative authority
Const Authority
1.               Art 3
a.                     Puts judicial power in the hands of judges who have lifetime tenure and protected compensation
b.                    Does not provide for adjudication except in federal courts
c.                     Agency adjudication has been allowed when it does not undermine art 3
2.               Public rights vs. Private rights
a.                     Public rights disputes-
                                     i.                                controversies between a private party and the government over matters such as govt. benefits, taxation, or immigration.
                                   ii.                                Congress has more discretion over adjudication
b.                    Private rights disputes-
                                     i.                                disputes between two parties in which the government’s role is primarily adjudicatory
                                   ii.                                Severe restrictions (by Art 3) in allowing agency adjudication
3.               Crowell v. Benson (old standard)
a.                     Administrative agencies may conclusively adjudicate facts in public rights disputes
                                     i.                                Based on CL sovereign immunity- you could not sue govt. so cannot be a purely judicial thing
                                   ii.                                Administrative agencies may adjudicate issue of both law and of fact
b.                    Administrative agencies in private rights disputes
                                     i.                                Agency fact-finding is allowed because it is li

essional actions is not prohibited by the Constitution then look to see if it is a good idea – ie whether it is necessary and proper
d.                     Separation of powers
                                    i.                                 Congress can create limits but cannot execute those limits
                                  ii.                                 Congress cannot interfere with president’s duty to duly execute the laws
e.                     There are not magic categories
                                    i.                                 Need to look at what the agency actually does
                                  ii.                                 Branches can be blended as long as there is no aggrandizement or encroachment
2.                The Unitary Executive
a.                      Theory that the constitution vests all executive power in the President. Any attempt by congress to insulate executive officials from complete presidential control is unconstitutional.
3.                The Appointments Clause
a.                      The president, with the advice and consent of the senate, appoints officers of the United States, and Congress may specify that inferior officers are appointed by the president alone, by department heads, or by the courts.
b.                     Principal and Inferior Officers
                                    i.                                 Principal/Superior officers
1.                                  Appointed by the president, no one in the govt. between officer and president
2.                                  Cabinet level and heads of independent agencies
                                  ii.                                 Inferior Officers
1.                                  Executive officers who are under the supervision of executive officials beneath the president
2.                                  Subject to removal
3.                                  Only has limited duties – scope is set by congress
4.                                  Has limited jurisdiction- defined by the special division (duties are what you can do within this area)
5.                                  Office is limited in tenure
                                 iii.                                 Appointment of Inferior Officers
1.                                  Unless otherwise specified by congress they are appointed the same way as a principal officer- By the president with the consent of the Senate
2.                                  Appointments Clause- allows congress to specify if an inferior officer can be appointed by only, the president, the courts, or the head of a department
                                iv.                                 Incongruous Appointments
1.                                  Incongruous appointments are unconstitutional – violate the separation of powers
2.                                  Does the same branch both appoint and supervise the agency? That leads to aggrandizement.
3.                                  e.g. If judiciary could both appoint and dismiss the special prosecutor, that would give the judiciary some of the executive’s power
c.                      Employees
                                    i.                                 Work for the govt. but have no discretion or authority in administering federal law
                                  ii.                                 They may be appointed in ways other than that stated in the constitution
4.                Removal of Executive Officials