è Administrative Procedures Act
Ø Agency §551 d= any each authority of the government except Congress, Art III courts, territories or possessions, DC, courts martial and military commissions, military authority in time of war, political parties, President (Franklin v. MA) (and presumably Vice President)
à Includes Art I courts
à e.g. executive agencies, independent regulatory agencies, Office of Independent Council, FERC (independent but housed w/in DoE), EPA (under President but not in any department), Copyright office (organizationally part of Congress)
à First agency was boiler inspecters (1852) – health and safety
è Structure matters
Ø 1887 ICC created — Rate setting power. Viewed as arm of Congress. In 1889, due to the arrival of President Harrison (Cleveland-Harrison-Cleveland) Congress removed ICC from the Interior Department and reconstituted it as an independent regulatory agency, because Harrison was a railroad lawyer.
à Effects: Congress controls budget, sx definition. Pres still has power to appoint. Bottom line: ICC not accountable to anybody.
à Advantages: ICC can do what it wants. Unfettered by politics, administrative focus and efficiency
à Disadvantages: No checks and balances, captive audience, bribeable.
Ø Structural considerations
à 1. Independence – When independent no one serves at pleasure of President
à 2. Location w/in govt.
« e.g. Move cryptography license from DoState to DoCommerce. Diff. pxs and cultures
à 3. Internal structure and organization
II. CONGRESS AND THE AGENCIES
è Delegation Doctrine
Ø Congress’ instructions are vague
à Delegation Doctrine d= Congress cannot delegate L power to E branch.
« How make workable? Intelligible Priciples Doctrine.
« In many instances, agencies are left to make policy decisions for themselves.
« Field v. Clark (1892) – Congress can enact legislation the effect of which depends on the President’s determination that a “named contingency” exists. Classic statement in delegation doctrine. Facts: tariffs that are unfair and unreasonable. Court upholds, but lots of policymaking authority.
« Communications Act of 1934 – FCC s/ grant broadcast licenses “public convenience and necessity”
« Only 2 USSC decisions to strike down to federal statutes on delegation grounds, both in 1935
ª Panama Refining Co. v. Ryan (Hot Oil case) — Court invalidated a provision of the National Industrial Recovery Act that authorized the President to ban interstate shipments of oil produced in violation of state law on grounds that there was no intelligible principle to follow (“no policy, no standard, no rule, no requirement, no definition” i.e. did not specify when enforcement was required)
ª A.L.A. Schechter Poultry Corp. v. US (Sick Chicken case) — Court struck down a provision of the NIRA authorizing the President to approve “codes of fair competition” for the poultry industry because the act did not prescribe adequate administrative procedures for approval of the codes.
« Amalgamated Meat Cutters v. Connally (DC DC 1971)
ª Facts: Unionized meat cutters won a wage increase, but under the price freeze implemented by the “Cost of Living Council” this would be illegal. The union attacks the authority of the Act.
ª AMC — “Such orders and regs as he may deem appropriate … 1970”
ª Congress conferred the power but not mandate to act
ª A-π: Merely raw grant of power.
ª Leventhal upholds; rejects delegation argument. Crucial concern is agency’s accountability. Congress legislating against background of prior wage-price freezes, i.e. has happened before during WWII. Short period of time. Judicial review under APA, but this is limited by fact that there must be a statute delineating agency’s authority to begin with. There must be some standard setting out what agency s/b doing. House leg. hx re goals. Judicial review. IMPLIED in statute that govt. act fairly, equitably, and consistently.
ª Want agency constraint, accountability. So, how effective is this? Little there, but court rules there’s enough. Accountability, consistency w/ Congressional will, consistency w/ rule of law.
ª Safeguards against administrative arbitrariness found in
§ 1. Power implemented generally, not singling out particular industries
§ 2. Availability of judicial review
§ 3. Prior history of wage-price controls
§ 4. Procedural safeguards of the APA
§ 5. Administration of the Economic Stabilization Act of 1970 itself can find as policy was developed and expressed in regulatory form.
« Kent v. Dulles
ª Sec. of State can grant or deny passport. State dept. has followed set of practices and Congress meant to require it follow these practices. Implicit requirement, not expressed in sx, that can follow history.
ª Note: There was no evidence in AMC that Congress wanted to abide by 1942 actions. demand-pull vs cost-push. 1942 law didn’t matter in terms of constraining executive.
Ø 2 themes from last class
à Fear that broad delegations bad b/c bad for democracy
à Rule of Law — don’t want system where one person has too much power
« vitiates democracy
« not rule of law – m/b held accountable
« AMC focuses on RoL
ª Wage-price authority not as bad as lack of rule of law
Ø Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission (OR App. 1973; 78)
à Facts: OR LCC had power to deny package store liquor license based on reasonable grounds or public interest or convenience (see p. 78). LCC said there were too many stores in area, not really a grocery store, too many local objections.
« Problem per the court is that there’s no way to check to determine if the LCC’s decision is arbitrary and inconsistent.
à Held: Ct. sez cannot rely upon judicial review b/c there’s no standard against which to compare. This would preclude public review as well. Must have binding rules to apply.
« Rule: Problem w/ vague instructions is agency can do what it wants, <> RoL
« Rules vs. standards. Sun Ray likes predictability of rules.
Ø Mashaw, “Pro-Delegation: Why Administrators Should Make Political Decisions”
à Delegation to the president is democratic b/c the president is more representative of the will of the people.
Ø Whitman v. American Trucking Associations (USSC 2001; 83)
à Facts: Acting under § 109(b)(1) of the Clean Air Act, the administrator of the Environmental Protection Agency (EPA) (Δ) revised the national air quality control standards for particulate matter and ozone, because the Clean Air Act authorized the EPA to promulgate regulations establishing national ambient air quality standards (NAAQS) to protect public health with an adequate margin of safety. The American Trucking Associations (π) challenged the new standards. Although the federal court of appeals agreed with the Associations (π) that the delegation of legislative power to the EPA (Δ) was overly broad, the court held it would avoid the unconstitutional delegation by adopting a restrictive construction of § 109(b)(1). In other words, the D.C. Circuit found a violation of the nondelegation doctrine not so much because the statute lacked an intelligible principle but rather because EPA had not adopted an intelligible principle to confine its own discretion. The court of appeals rejected the Associations’ (π) argument that the EPA (Δ) should consider the cost of implementing the air quality standards in setting the air quality standards. The Associations (π) appealed.
à Held (Scalia):
« 1. The Supreme Court reversed, reaffirming the intelligible principle test and rejecting the idea that an agency can cure a delegation violation with its own limiting construction. The Court observed that under the D.C. Circuit’s analysis, leaving it to t
tion of Chadha’s deportation occurs unless the INS and both houses agree he s/b allowed to stay.
ª The problem w/ White’s analysis is that bicameralism and presentment protect against Congress doing something stupid. Bicameralism and presentment reduces the chance of a stupid law by having all of them affirmatively act.
§ Status quo is that Chadha is here now, after INS suspended his deportation. The status quo is preserved unless Congress affirmatively acts thru bicameralism and presentment.
à Consumers Union v. FTC (USSC 1983; 106)
« Facts: FTC is an independent agency. If FTC promulgates rule declaring a practice unfair, Congress can execute a legislative veto and say it is fair. FTC passed a law stating a used car dealer must post a sticker on a car listing defects the dealer is aware of. Congress overturned this rule pursuant to a legislative veto
« Held: Congress acted w/o bicam or pres.
« cf. the reasoning of White in Chadha, which would go something like this: Has Congress really done something requiring bicameralism and presentment? In the beginning, used car dealers were unregulated. At end, used car dealers are still unregulated. Nothing has changed. Therefore, never needed bicam and presentment b/c nothign changed.
ª BUT the point of bicameralism and presentment is to prevent Congress from acting stupidly. But note that FTC, as an independent agency, represents the will of people thru both the President and Congress.
« When govt fails to regulate, people are hurt, which is why the FTC was established in the first place. Once the agency has made it’s call using proper authority, Congress cannot second guess w/o bicameralism and presentment.
à Congressional Review Act (p.110)
« Enacted in 1996 in response to the legislative veto as part of Newt Gingrich’s Contract with America
« Permits fast-track consideration by Congress of legislation to disapprove of any rule enacted by an agency quickly to block that rule.
« Has only been used once to block OSHA ergonomic standards. The Clinton administration promulgated a rule, Bush took office, Congress disapproved the OSHA action, and Bush supported the legislation. Usually, an agency has the president’s backing.
Ø Statutory Control (Congress drafts specific statutes)
à USDA v. Murray (USSC 1973; 128)
« Facts: The Dept. of Agriculture (Δ) adopted a conclusive presumption that any household wherein a member over 18 years of age was claimed as a dependent was not entitled to food stamps. This was based on the assumption that a majority of such households included college students and that such households were not needy. Murry’s (π) household consisted of two sons and 10 grandchildren. Murry’s (π) sole income was $57.50 in child support from her ex-husband. Murry (π) was denied food stamps because her ex-husband claimed the two sons as dependents, and they were over 18. Murry (π) challenged the denial of benefits. The court of appeals held that the denial violated due process.
ª This law was enacted in response to hippy children of wealthy parents living off of food stamps