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Administrative Law
University of Toledo School of Law
Kennedy, Robin M.

1.Non-delegation: agencies have to be lawfully delegated (supreme court has only struck down a delegation of power twice) a.court can’t make statements of social policy (given that congress is incapable of setting clear standards) deal legislation was usually too broadb.Exceptions (intelligible principle or pattern from similar legislation to follow and principles of accountability) � could be givingthe president too much power over certain constituencies over others i.Old view: Primary Standard: There can be implied standard (e. g. in some cases the court will look to the intent) ii.New view: Intelligible principle (can be vague, would like American producers to be able to compete with foreignproducers at least on the American Market) iii.Usually needs to be a particular delegation to a particular agency 1.Congress has a right to make a law, which allows the President to do things if a certain contingency came about(Congress didn’t really delegate to the President the power to make a law)iv.Can’t delegate outside of where there are controverted areas of policy or opinion: (in the original case there was noindication of what the president should do) 1.Dissent: If Congress identifies something that needs to be done, and an area for delegation than delegation maybe possiblev.President can’t delegate away from himselfc.If the statute gives too much power: Should be construed so as to avoid too many constitutional questions — including whetheror not the president had been given the right statutory guidance i.Delegation of power is unconstitutional if too vague to permit a reviewing court to determine whether the agency hadacted beyond the scope of its powerd.Cost-benefit analysis: (to the extend feasible) – agency must look to whether the statute is zero-risk statute: (agency must makeconnection if it is vague) i.Majority: court will sidestep the validity of a cost-benefit analysis ii.Concurrence: statute should be struck down, or sent back if statute vague iii.dissent: court should avoid setting social delegation of public functions to private individuals i.even a contract that binds one company by an action of another company is a delegation power to create a fine can be delegated (but the definitions of the criminal behavior can be delegated) iii.power to tax can’t be delegated 1.difference between taxes and fees: 2.(agencies can be fiscally self-sustaining) a.was there a valid delegation to the initial agency b.can be valid, if it was just a fee (fee is something that is based on the services returned)f.two steps questions i.whether the delegation was valid 1.need to have some paraphrasing of statutory language)ii.whether the agency acted ultra vires (things can be a valid delegation, but still ultra vires) 1.there could be a mathematical relationship that would make it not a tax: 2.e. g. not within the power of the state department to deny passports, or using the draft for

report from GAO 3.If Congress passes a joint resolution, and tries to override a rule, courts are not supposed to take this effort intoaccountc.Legislature can’t imbed legislative functions inside executive branch (removal power) may be an indication of who is controllingan official in Bowsher — will look to statute and to the function of the agency (e. g. allowing the president to fire its officerswould give him the power to influence the agency) i.Can’t have the Senate appoint Officers (only really heads of agencies) 1.special prosecutors are not officers (treated like an independent agency which results from negotiation, yetappointed by president, to do legislative work) a.courts can appoint officers2.inferior officers can be appointed by non-president (e. g. tax court judges) 3.nothing in constitution regulates how employees have to be appointed) ii.Formalistic (majority) seperation of powers approach subordinate officials can’t be subject to approval of senate.Removal of officials for non-illegal activities can’t be left with congress 1.Concurrence: it is possible to have obligations to two branches at once, and Congressional removal of thecomptroller would be veto power