Watts – Admin Law – Fall 2012
Nondelegation Doctrine: Congress can delegate legislative-like powers to agencies so long as Congress sets forth an “intelligible principle” to guide the agency’s discretion
¾ When trying to find an intelligible principle look to:
· Text of the statute
Þ **APA doesn’t give substantive restraints for the agencies, but may still have an arbitrary and capricious challenge
· Statutory Goals and Purposes
· Precedent – language that has already been approved or that the term already has a concrete meaning
· Legislative history – problems to be solved
Vesting Clause of Art. I: “All legislative powers herein granted shall be vested in a Congress of the United States.”
¾ Three main rationales for Nondelegation Doctrine
· Avoid arbitrary decisions
· Give courts standards to enhance meaningful judicial review
· Ensures that Congress makes the difficult decisions because they are politically accountable
¾ Pro Delegation Arguments
· Need for flexibility
· Expertise
· Impracticality for Congress
· More public deliberation and input
¾ Anti-Delegation
· Delegations undermine accountability
· Delegations pass the buck – leaving the agency to take political heat for controversial decisions
· Constitutional undermining – SOP, bicameralism and presentment
¾ Constant tension between expertise and politics
¾ Field v. Clark, SCOTUS, 1892, p. 607 – Contingency Rationale: Congress cannot delegate lawmaking power to Executive, but can confer authority/discretion as to when to execute the law
¾ US v. Grimaud, 1911, SCOTUS, p. 608 – Filling in the Details: Congress can delegate authority to agencies to promulgate regulations with a variety of legal consequences – as long as Congress itself spells out by statute what those consequences are
¾ JW Hampton v. US, SCOTUS, 1928, p. 609 – finally defines NDD – Supreme Court ruled that Congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an “intelligible principle” to guide the executive branch
¾ Two Cases Struck Down delegations revolving around the New Deal:
· Schechter v. US, SCOTUS, 1935, p. 610 – violation of NDD when the President is given authority to approve “codes of fair competition” proposed by trade/industrial associations
· Panama Refining v. Ryan, SCOTUS, 1935, p. 610 – no intelligible principle for the President to follow when deciding to close interstate commerce for “hot oil”
¾ Benzene Case, SCOTUS, 1980, p. 596 — When faced with an impermissible delegation of authority, the court will use statutory interpretation to narrow the delegation of power
· Court narrowed the intelligible principle to avoid a const. problem with the statute
· Unreasonable to assume that Congress intended to give OSHA sweeping power to regulate industry through limiting benzene exposure
· The Secretary must determine before promulgating a standard or rule that a health risk of benzene exists at a particular threshold and
¾ Chevron v. Natural Resources Defense Council, SCOTUS, 1984, p. 599 – Agencies have a lot of leeway in interpreting ambiguities in statutes
· Has Congress directly spoken to the issue at hand?
Þ If Congressional intent is clear, then stop
· Is the agency’s interpretation of the statute permissible/reasonable?
¾ American Trucking v. EPA, DC Ct. App., 1999, p. 581 — Intelligible principle must be present for the delegation to be permissible
· Clean Air Act of 1970 Concentration levels are set to a level “that is requisite to protect public health” within adequate margin of safety
Þ EPA uses multi-factor criteria to set the standards
· DC Circuit says that the delegation is problematic
Þ EPA doesn’t give reasons, The criteria do not speak to the degree, Gives EPA opportunity to revise standards
Þ Sends back to the EPA to develop more detailed criteria to guide the degree – intelligible principle
o DC Circuit chose this remedy because of the Constitutional avoidance doctrine
¾ Whitman v. American Trucking, SCOTUS, 2001, p. 590 — When there is an unconstitutional standardless delegation, an agency cannot cure it by adopting a limiting construction
· EPA cannot consider implementation costs in setting air quality standards
· Intelligible principle must constrain the agency’s power
Þ The agency must make the difficult choices because they are politically accountable
Þ If we constrain, then less likely to have arbitrary action
Þ There must be a meaningful standard to apply by the courts
Þ Using a standard that Congress didn’t intend is an exercise of forbidden legislative authority
· There was no standardless delegation = “requisite” is the intelligible principle (Formalist)
Þ Enough of an intelligible principle because of precedent (see following cases)
o “In the public interest” is enough
Þ Once the intelligible principle is set by Congress, then legislative powers aren’t being delegated, rather it is an exercise of Executive powers
· Stevens and Souter, concurring (Functionalist)
Þ Let’s just call it what it is – it is legislative power
Þ There is no prohibition on delegation of legislative power, look at the constitution vesting clause
Agency Relationships with Congress and the President
¾ Non specific structure other than executive, legislative, judiciary in the Constitution
¾ Constitutional challenges under Reagan
· Conservative constitutional theory
· Unitary executive – W Bush, continued with Clinton and Obama
Þ For formalists, rulemaking power is not legislative, it is executive
Þ President can control and direct the actions of the official
· Functionalists are impatient with not calling the delegation legislative-like power
How does Congress control the delegations its doles out besides setting forth a more intelligible principle?
¾ Not the Line Item Veto: Clinton v. NY, SCOTUS, 1998, p. 616 – line item veto unconstitutional, amendment of a statute not complying with presentment and bicameralism
· Formalist: President cancelling spending = Congress appropriating money
· Functionalist: agencies develop rules to explain intelligible principle, Pres. does not; agencies subject to judicial review, Pres is usually not reviewed
¾ Not the Legislative Veto – enable one or two houses to veto
· INS v. Chadha, SCOTUS, 1983, p. 653 – line item veto an unconstitutional delegation of leg. power bypassing presentment and bicameralism
Þ Attorney General given the discretion to suspend deportation of an alien who fits a certain criteria
o Report of suspension sent to Congress, House passes a resolution to deny the suspension
Þ Burger –formalist in reasoning, rigid in going through steps
o The legislative veto is an exercise of leg power
o Bicameralism and presentment must happen with legislative acts – doesn’t go through those steps
o Why legislative? Altered legal rights, status, w/o the Act Congress couldn’t override the stay of deporation
Þ Powell says it is actually adjudicatory power, but comes to the same conclusion
o Leg branch exercising judicial power
o More narrow interpretation – better for not messing up the administrative state
o Focus on a single person – standing
o Could have a legislative veto of rulemaking but not adjudicatory actions taken by agencies
Þ White’s Dissent – if congress can delegate away, then why cant they retain a check on the delegation?- functionalist – yield to reality
o It is a significant tool – bargaining chip with Executive
¾ Legislative Overrides – pass new law to override regulation
· Vetogates: Institutional barriers prescribed in the Constitution make it difficult to jump the hurdles to make the new bill a law, making it difficult to get back the delegation
· Politically challenging especially now in divided government
· Preference for the status quo
¾ Congressional Review Act, p. 655 – when the rule exceeds a certain amount, Congress can override within 60 days
· **Clinton’s workplace ergonomics rule is the only one to be overridden this way
· When a rule has an economic impact of $100 million, then Congress can disapprove via joint resolution within 60 days to invalidate the rule and narrow the agency’s original authority
¾ Appropr
ccess to pres
Legal Bases for Presidential Directory Claims
¾ Pro Presidential Directives
· Precedents
Þ Marbury v. Madison, SCOTUS, 1803, p. 695 – Pres needs helpers to help him perform his duties, their acts are his acts
o If a statute confers duties on an official, then he is subject to judicial review (subject to the law)
o If head of department is political or confidential agent of the pres, then he is only politically accountable – here there is a check (political)
Þ Myers v. US, SCOTUS, 1926, p. 733 – most sympathetic to constitutionally-based direct authority claims
Þ Youngstown, SCOTUS, 1952, p. 567 – As long as president is acting within the correct category, then the pres. may have the power to act
Þ Sierra Club v. Costle, DC Cir., 1981, p. 707—ex parte communications between Prez & agency head ok as long as decision based on evidence as required by statute
o ex parte communications between EPA and Pres not required to be in docket, even if influential in decisionmaking — decision not based on that meeting
o This looks like rulemaking/legislation, so ok to have direction
· Unitary Executive Theory – Pres always has authority over the heads of agencies regardless if the statute is silent on his power
Þ Pres has the constitutional power alone to execute the law
· Accountability, p. 700 – make the Prez accountable for the regulations that are promulgated during his term
· Statutory Interpretation – apply an interpretive presumption in favor of reading statutes as allowing for Prez control of executive agencies
Þ Kagan Article – If Congress is silent on Pres role
o Delegation runs to official, but still subject to pres control
9 Without an express exclusion of pres control then pres gets control
o If delegation to an independent agency, then no pres control
9 Congress makes the structure of the agency in the organic act and by designating how the indep agencies can be removed
9 All about Congressional intent
¾ Con Presidential Directives
· Overseer rather than decider
Þ Article II only gives Pres the right to request a written opinion from agency heads to explain their decisions and he is to then see that the laws be faithfully executed
· SOP – Pres has crossed the line
Þ Test for evaluating if Congress overstepped Pres’ authority (from Portland Audubon, p. 705 – Nixon case)
o 1. Whether the act prevents the executive branch from accomplishing its constitutional functions
o 2. Whether the impact is justified by an overriding need to promote objectives within the Constitutional authority of Congress
· Ex Parte contacts impermissible in adjudications
Þ Portland Audubon v. Endangered Species Committee, 9th Cir., 1993, p. 702 – While serving in committee, Cabinet members are to be free from presidential influence
o Not allowed to have external communications with outside parties if not in the public docket in order to conduct proper judicial review
o Distinguishable from Costle because it looks like a judicial decision rather than a legislative decision
9 Concrete, particularized, specific – more concerned with bias and independence
9 Not a prospective generalized policy (more like rulemaking)
· Statutory interpretation read statute in favor of allowing pres directive authority only when the statutes expressly grant that power to the pres in the text of the statute
Þ Reaction to Kagan’s article
