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Chapter 2

Part 1

The Delegation Doctrine

The core question is whether Congress can delegate legislative or judicial power to an executive branch agency.

The Constitution is silent on this issue. The United States Supreme Court initially resisted the delegation of these powers to agencies.

This played out during the mid-1930s when Congress created several new agencies to fight the Depression. 2

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Delegation Doctrine - Rulemaking

Great historical interest Key issue in the judicial fight over the new deal The United States Supreme Court was concerned that

delegation of legislative or judicial powers to agencies violated separation of powers

Court shifted to looking for whether Congress provided enough guidance for the court to review the agency actions The "intelligible principle" test

This is all you need to know about the history

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"Intelligible Principle" - Rulemaking

The court has to be able to review an agency's actions to make sure they are within the congressional grant of power.

If the legislature does not provide an "intelligible principle" to guide the court in reviewing agency action, the courts will strike down the agency action Key - the law is constitutional, but it does not provide

useful power to the agency Under the delegation doctrine, the law was

unconstitutional

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What is an Intelligible Principle?

Specific guidance is best Congress will provide very specific guidance if it

wants to limit agency discretion - the ADA General/ambiguous guidance is also usually OK

‘‘in the public interest" Depends on whether context can provide meaning We will explore this in the Chevron and FDA cigarette

cases

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Delegation Doctrine - Adjudications

Old test was public versus private rights New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S.

833 (1986) [1] “the extent to which the ‘essential attributes of judicial power’

are reserved to Article III courts, and [2] conversely, the extent to which the non-Article III forum

exercises the range of jurisdiction and powers normally vested only in Article III courts,

[3] the origins and importance of the right to be adjudicated, and [4] the concerns that drove Congress to depart from the

requirements of Article III. Is the administrative law judge (ALJ) acting as an Article III judge?

Remaining Limitations on Delegation

Criminal penalties can only be assessed by Article III courts. Incarceration for punishment is pure criminal. While magistrate judges can handle some parts of

criminal trials, the core trial functions must be done by an Article III judge.

Agencies can restrain (lockup) individuals, subject to habeas corpus review, or statutory review if provided by the legislation.

Agencies can impose civil fines. 7

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Practical Considerations

The court is very unwilling to find adjudications exceed constitutional authority under this test. This may be because Congress has not passed laws which test

the outer limits of agency authority Can happen when adlaw is used for criminal actions There are state law fights over this - Wooley

There are limits on the transformation of criminal matters into agency adjudications Traffic court can be civil, but only if there is no jail time Large civil fines push the edge, especially if there are also

criminal penalties for the same act Guantanamo Bay detentions are administrative

Right to Judicial Review of Agency Actions

There is a right of judicial review of rules to determine if the agency has the legal authority to issue them and if they properly supported by the record.

There is a constitutional right to due process protections in adjudications, and usually a right to judicial review of the decision. As we will see, Congress can limit judicial

review in some circumstances. 9

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Presidential Control of Agencies

The president's ultimate control over an agency is through hiring and firing agency personnel, or at least through having that option available

Is the president free to appoint and remove who he wants?

How much control can congress exercise over executive branch agency personnel?

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Art II, sec. 2, cl 2 - the Appointments Clause

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Recess Appointments

Article 2, Section 2: The President shall have Power to fill up all Vacancies

that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Why was this included? The legal questions in the recent case

Can the Senate stay in session while the members are at home?

Does the vacancy have to occur during the recess? 12

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Limits on Congressional Appointments

Congress creates and shapes the executive branch Without specific appropriations, there would be no

White House and the president would have to rent space from his own pocket

Under the Appointments Clause, Congress cannot make appointments to executive branch agencies

Congress can impose requirements on appointments Limitations on who can be appointed, such as

requiring political balance on the FEC Limitations on removal, which create independent

agencies discussed later in the chapter

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Civil Service

Congress developed the Civil Service to protect workers from losing their jobs every time the administration changed

Most personnel are civil service and can only be fired for cause with due process Limited due process for security agencies This was carried over and broadened in

the Homeland Security Agency

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Pros and Cons of the Civil Service

Why is it important to you if you want to be a government lawyer? What are the problems with the system? How high should it go?

Career track problem for senior people without lucrative outside jobs Public Health Directors Lawyers in specialized areas without private

practice

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Buckley v. Valeo, 424 U.S. 1 (1976)

Original process for selecting members of the Federal Election Commission (FEC) Two members appointed by the President pro

tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to

confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the

House as ex officio nonvoting members Challenged as an Appointments Clause violation

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The Role of the FEC

What does FEC do that is forbidden to Congress? (This is the defining action for an executive

branch agency) How does allowing congress to appoint

commission members undermine separation of powers?

Was the selection process for the FEC commissioners constitutional?

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The Congressional Budget Office (CBO)

The “primary function” of the CBO is to give the House and Senate Committees on the Budget information that “will assist such committees in the discharge of all matters within their jurisdiction.” The CBO also has additional duties, all of which relate to giving Congress information on budget matters.

The Director is appointed for a four-year term by the Speaker of the House of Representatives and the President pro tempore of the Senate.

Does this appointment scheme violate the Appointments Clause?

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Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. 501 U.S. 252 (1991) (“MWAA”)

The federal statute authorized the airports to be run by an Airport Authority Major decisions of the Airport Authority were subject

to the veto of a “Board of Review.” The federal statute dictated that the Board be

composed exclusively of Members of Congress. Putting aside the Appointments Clause issue, how does

having Congressmen on the board violate Bicameralism and Presentment?

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The Library of Congress

The Librarian is appointed by the President. Its operation is overseen, however, by the Joint Committee of

Congress on the Library. The Joint Committee consists of the chairman and four

members of the Committee on Rules and Administration of the Senate and the chairman and four members of the Committee on House Oversight of the House of Representatives.

Is congressional oversight a violation of separation of powers? Does it need to be an executive agency at all, i.e., could congress

run its own library and hire the director? What do we need to know about the library to decide? What part does make rules and get involved in enforcement?

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Congressional Removal of Executive and Judicial Branch Officers

Impeachment Brought by the house Senate as jury Only for “Treason, Bribery, or other high Crimes and

Misdemeanors.” Why is this of limited effectiveness for agency oversight? Why is this a problem for dealing with bad judges?

The executive branch can remove its own, but only congress can remove judges