Delegation: Chapter 5 Definitions
Chapter 5 Definitions –
Intelligible principle – doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines to limit the authority of the agency when exercising delegated rulemaking authority.
Standards – a set of rules or guidelines from which an agency or person must work.
De novo – a new; to reconsider. A standard of review that does not require deference to an agency’s decision.
Chapter 5 Outline –
Delegation
An act through which Congress creates an agency to address a specific problem is known as enabling legislation.
Through enabling legislation, Congress defines an agency’s mandate (court order), how the agency is to satisfy its mandate, how the agency is to be structured (including …show more content…
how its leaders will be appointed), and what authority the agency possesses.
Most authority that Congress defines for an agency is executive authority.
When Congress delegates its authority to make laws to an agency, the agency is receiving quasi-legislative authority.
Agency created laws are not known as statutes, as are laws created by Congress. Instead, they are referred to as rules or regulations.
A delegation may violate the Constitution in one (or more) of three ways. 1) Congress may delegate too much of its own authority to an agency, 2) Congress cannot delegate to an agency its own essential functions or the essential functions of the judicial branch, 3) Congress may not make a delegation that gives one branch oversight or control over an agency that is performing the functions of another branch.
These separation of powers limitations on congressional authority are known as the delegation doctrine or negatively as the nondelegation doctrine.
Delegating Legislative Authority
Article I, Section 1 of the Constitution provides that all legislative authority of the US rests with Congress. There is no mention of agency rulemaking power in the Constitution.
The Great Depression led to the creation of many new agencies, each with broad delegation of …show more content…
authority.
For one brief period, in the mid 30’s, the Supreme Court scrutinized delegations very closely, and for the only time in American history, the Court struck down two delegations. The first occurred in Panama refining Co. v. Ryan, wherein the National Industrial Recovery Act of 1933 was challenged.
The NIRA authorized the Pres. Of the US to prohibit the transportation of certain oil products in interstate commerce.
It is the Pres. Duty to see that such a prohibition is enforced, not to create the prohibition.
Another delegation was invalidated in Schecter Poultry Corp. v. US. That case challenged the authority of the pres. Of the US to approve “codes of fair competition” for the poultry industry.
Supreme Court reversed the conviction because it found no solid policy statement to guide the agency when it created the code.
US v. Grimaud –
The Pres. Was authorized to set apart and reserve public lands as forest reservations. The Act provided that the management of these areas by the Secretary of Interior cut the power was conferred to Secretary of Agriculture.
The Secretary of Agriculture promulgated and established certain rules for the purpose of regulating the use of the land.
Defendants were charged with driving and grazing sheep on the reserve.
The court held that the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its action depend.
Panama Refining v. Ryan-
7/11/1933 – Pres. Prohibited the transportation in interstate and foreign commerce of petroleum…
7/14/1933 – Pres. Authorized the Secretary of Interior to exercise all powers vested in the Pres. “for the purpose of enforcing Section 9c of said act and order”…
7/15/1933 – Secretary of Interior issued regulations to carry out the Pres. Orders.
10/1933 – Panama refining sued defendants, federal officials, from enforcing regulations.
They attacked validity of section 9c as an unconstitutional delegation to the Pres. Of legislative power and as transcending the authority of congress under the commerce clause. The regulations and the attempts to enforce them were also assailed under the 4th and 5th amendments.
The Court held that Section 9c is brief and unambiguous. It leaves to the states and to their constituted authorities the determination of what production shall be permitted.
Section 9c does not state whether or in what circumstance or under what conditions the Pres. Is to prohibit the transportation of the amount of petroleum produced in excess of the state’s permission.
So far as this section is concerned, it gives the Pres. An unlimited authority to determine the policy and law as he sees fit and disobedience is made a crime. The Congress left the matter to the Pres. Without standard or rule to deal with as he pleased, essentially performing the function of the legislature rather than those of the executive.
There are limits of delegation which there is no constitutional authority to transcend, section 9c goes beyond those limits.
“Court packing plan” – Pres. Roosevelt proposed to Congress that it enlarge the Supreme Court by permitting a new appt. for every justice over the age of 70. At the time, 6 justices were over 70. (15)
Opponents of the plan asserted that the plan was a transparent attempt by the Pres. To control the judiciary. Justice Roberts eventually changed his direction in cases resulting in fewer decisions invalidating New Deal legislation defeating the proposal.
Nondelegation doctrine
Since 1935 the nondelegation doctrine has been used by the Supreme Court as a constitutional basis to strike down any delegation of legislative power.
Pursuant to the doctrine, a delegation of legislative authority is constitutional if congress establishes the nations fundamental legislative policy and leaves only the gap filling to an agency.
Some cases speak in terms of “standards” others refer to an intelligible principle – Congress must provide sufficient standards to an agency to guise it (and limit its discretion) in the administration of the power it has been delegated.
Supreme Court upheld a delegation in Touby v. US – statute authorized the AG to temporarily declare a drug as schedule I controlled under the Controlled Substances Act. Possession, distribution, or use of controlled substances criminal under that statute – US AG delegated responsibility of declaring penal law.
Until permanently scheduled, designer drugs could be possessed, distributed, and used lawfully. To resolve this Congress delegated to the AG authority to temporarily add, remove and reschedule drugs, following specified procedures, considering 8 factors - time consuming.
Temporary – to speed this up for public safety. There were still procedures and subject to judicial review.
The AG promulgated regulations delegating to the DEA his powers under the Act. Touby said its an unconstitutional delegation.
The Constitution provides that “all legislative powers herein granted shall be vested in a Congress. The court has derived the nondelegation doctrine. Congress may not constitutionally delegate its legislative power to another branch of government. It’s a separation opf powers issue. There has to be guidelines – it must lay down an intelligible principle to which that agency must act.
The Court held that the “imminent hazard to public safety” section is an intelligible principle. Greater specifity may be required in the criminal context.
The requirements or restrictions the AG must follow satisfys the constitutional requirements of the nondelegation doctrine.
Supreme Court case of Whitman v. American Trucking –
Congressional delegation of rulemaking authority to the EPA was upheld.
The Court of appeals held that this section did not provide an intelligible principle to set criteria; draw lines. “how much is too much?”. Supreme Court disagreed.
The Court held that in a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency.
There is a requisite standard for levels to protect the public health – within the scope
Congress is aware of the nondelegation doctrine restrictions and limits the amount of lawmaking power it transfers to agencies as a result. Lower courts enforce it. Used it to strike down a federal statute in:
SD v. Dept. of Interior
(later reversed but on different grounds).
Delegating judicial authority
Art. III provides that the judicial power shall be “vested in 1 supreme court and all inferior courts as Congress may establish – through Pres. Nomination and Senate approval.
The Court held there is a distinction between public and private rights.
Public rights usually involve a govt. and citizen or corporation. Private rights are those between individuals. (WC involves a private right)
SD v. Dept. of Interior –
Unconstitutional delegation of legislative power to acquire commercial land for Indians.
Nondelegation doctrine – Congress may not constitutionally delegate its legislative power to another branch of govt. A court must inquire whether Congress has itself established the standards of legal obligation, thus performing its essential legislative function.
So long as Congress lays down by legislative act an “intelligible principle” governing exercise of delegated power it has not unlawfully delegated its legislative power.
A delegation is overbroad if there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible to ascertain whether the will of Congress has been obeyed.
When Congress authorizes the Sect. to acquire land in trust “for Indians” it has given the agency no intelligible principle, no boundaries by which the public use underlying a particular acquisition may be defined and judicially reviewed.
The Court held that this section fails all 3 nondelegation criteria:
1) Social policy made by Congress
2) If delegating with intelligible principle
3) Tested against standards
Sect. had no authority.
Art. III established the Supreme Court and lower courts. Justices and judges of district and circuit courts are all Art. III judges.
To keep them independent of politics they enjoy lifetime tenure and salary.
Congress created non Art. III US magistrates, bankruptcy judges and military judges – Art. I judges.
If Pres. Establishes a court – Art. II
Because magistrates are not Art. III judges only certain responsibilities may be delegated to them.
They are accountable to Art., III judges rather than Congress or executive.
A defendant in a criminal case can demand that an Art. III judge preside over the critical stages of the proceedings.
Parties have the right to invoke right to go to judge.
Northern Pipeline v. Marathon Pipeline –
Court found the adjudication of private rights by the bankruptcy judge – against the objections of the parties – unconstitutional.
In Schor –
Agency had adjudicatory authority to hear counterclaims (inc. private rights claims) arising from the original facts – complaint. Counter-claimants had an option.
Court upheld delegation because 1) Congress had created a legitimate scheme to deal with a broad policy. 2) the agency had the authority to hear only small class of claims, 3) counterclaimant had the right to file in federal court, 4( agency had to turn to Art. III judges to enforce its orders, 5) scheme did not threaten independence of judiciary
Delegating to private agencies
It is becoming increasingly common for govt. to contract with private agencies to provide govt. services.
Govts. May do this because they lack the expertise to perform the necessary function.
Private companies can be more productive resulting in lower costs.
Legal issues – Compliance with civil service, regulatory, environmental and constitutional laws must be considered.
Some core functions cannot be delegated such as trying criminal cases.
Foley v. Osborne Condos
Although other statutes permit collection without court intervention none authorizes private entities to impose fines…
The Court held that The 1982 act represents an unconstitutional delegation of judicial or police power to the condo assn., a private entity.
A delegation of quasi-legislative authority to a private agency is more likely to be permitted than a delegation of quasi-judicial authority.
Private agencies that perform govt. functions may be treated as govt. agencies by the courts.
The private agency receiving the delegation must be in a position to serve the public interest not only financial interest.
Delegation and criminal law
Because violations of criminal law can result in imprisonment and death they are subject to special rules concerning delegation of authority.
Congress may not delegate to an agency the authority to set penalties for penal violations, with the possible exception of small fines.
Agencies may also act in a quasi-adjudicative role in penal cases, although this is extremely limited. In such cases, the agency’s authority must be limited to levying fines. Constitutional rights, privileges, and protections cannot be circumvented by calling a crime a civil wrong.
With sufficient guidance from Congress, an agency may establish rule declaring an act criminal, but it may not determine what punishment should be imposed for violation of the rule.
Any crime that is more serious or involves severe punishment, must be heard by a court.
Monetary penalties may be imposed by an agency, imprisonment may not – exclusively judiciary.
Arrest and Detention
Agencies may not order the imprisonment of individuals as punishment, they may arrest and detain persons if that action is justified by extreme circumstances. (i.e. Health – quarantine, INS – deportations).
Chapter 6 Definitions –
Formal Rulemaking – rulemaking on the record.
Ex parte communications – discussions between a judge or agency official who is conducting a hearing and a party about the matters under consideration, held in a location where, or in such a manner that, other interested parties cannot participate.
Informal rulemaking – “notice and comment” rulemaking.
Chapter 6 Outline – All agency actions can be classified as executive, quasi-judicial or quasi-legislative. When an agency acts in its quasi-judicial capacity, its behavior is referred to as adjudicatory. When acting in its quasi-legislative capacity it is called rulemaking.
Rulemaking is the process whereby agencies establish law to implement or perform a statutory duty.
The Federal Register is a govt. publication used to publish federal rules, orders and related docs and announcements.
Although regulations are subordinate to statutes, they have equal weight when applied.
There are different types of rules, some establish procedures, others create rights and obligations. Substantive rules must stem form an enabling statute.
The creation of an agency and an assignment of duties to it does not implicitly create the authority to promulgate rules; the legislative body must specifically authorize the agency to promulgate rules.
In addition to being within the legislative delegation, rules must be reasonable.
A rule must rationally relate to its enabling statute.
If the rule classifies a suspect class or impinges ona fundamental right it is tested under the strict scrutiny test.
In some circumstances, a 3rd test is applied, which falls between the rational relationship and strict scrutiny tests. Under this test, the rule must be substantially related to an important governmental objective.
Rules tested under the rational relationship test usually are determined to be valid, whereas most rules tested under the strict scrutiny test are not.
The APA defines a rule as the “whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency”.
The APA attempts to distinguish “decisions” and orders form rules if intended to have future effect it is a rule.
Generally, adjudications involve individual claims, whereas rules are directed at large groups.
Generally, agencies are free to make rules without hearings, this is not true of adjudications.
Rulemaking – Large group, future conduct, based upon facts and policy, sets standards by which a person may be adjudged or sanctioned.
Adjudication – individual, past conduct, resolution of dispute, based upon facts of dispute, determines compliance or sanctions
Volume of rules
Today the bulk of law is made by agencies, not legislative bodies.
Types of Rules
There are 2 different types of rules: legislative and interpretive. Legislative rules can be further divided into those that are procedural – agencies are normally bound by their own procedural rules, and substantive – these rules affect the rights of individuals and are functional equivalent of
statutes.
If promulgated properly, such rules have the effect of statutes; they require or prohibit actions and may impose penalties for violations of their mandates.
Interpretive rules do not declare something new; they do not fill in gaps of legislation. Rather they represent an agency’s interpretation of a statutes meaning.
Whether a rule is interpretive or substantive often depends on whether Congress has given the agency the authority to promulgate rules. If rulemaking authority has been granted, the rule is more likely substantive than interpretive.
Unlike substantive rules, interpretive rules do not have the force of statutes. Courts may interpret statutes on their own and are not bound by agency interpretations thereof.
Rulemaking Procedure
Rulemaking is the administrative equivalent of the legislative process of enacting statutes.
Because legislatures are not constitutionally required to conduct hearings or provide notice of proposed legislation, neither are agencies.
Congress has established procedures that agencies must follow when adopting rules.
The APA recognizes three procedural forms of rulemaking: formal, informal and exempted.
Formal rulemaking is the most time consuming, expensive and procedurally involved method of rulemaking for agencies.
Formal rulemaking is required only when Congress mandates it in separate statute. They must make it clear.
If the statute is unclear, or requires only a hearing, courts are likely to hold that informal rulemaking may be used.
Before a hearing is conducted, an agency contemplating a rule must give notice to the public; publish the date in the Federal Register.
Once the agency has satisfied the notice requirement, it must conduct an evidentiary or trial-type hearing on the date announced in its notice.
One adjudicatory rule that does not apply to formal rulemaking concerns ex parte communications. Section 554 of the APA prohibits ex parte communications between agency decision makers and interested parties.
US v. Florida East Coast Railroad –
After 1966 amendment commission decided it could impose an additional “incentive” charge.
The APA requires that the decision include a statement of “findings and conclusions and the reasons or basis thereof, on all the material issues of fact, law or discretion presented on the record.
Section 553 requires that an agency publish a final rule at least 30 days before the rule becomes effective . the interim period gives those affected by the rule an opportunity to comply before it becomes effective.
Informal Rulemaking
Under the APA, informal rulemaking exists by default. If a statute does not require formal rulemaking and an exemption does not apply, then informal rulemaking may be used.
First the agency must publish a notice of proposed rulemaking, normally in the Federal Register.
Second, the agency must give interested parties the opportunity to participate in the rulemaking process.
Finally, APA Section 553© requires that the agency issue its final rules with a “concise statement of their basis and purpose”/ 1) identify issue and agency’s reaction
Intelligible principle – doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines to limit the authority of the agency when exercising delegated rulemaking authority.
Standards – a set of rules or guidelines from which an agency or person must work.
De novo – a new; to reconsider. A standard of review that does not require deference to an agency’s decision.
Chapter 5 Outline –
Delegation
An act through which Congress creates an agency to address a specific problem is known as enabling legislation.
Through enabling legislation, Congress defines an agency’s mandate (court order), how the agency is to satisfy its mandate, how the agency is to be structured (including …show more content…
how its leaders will be appointed), and what authority the agency possesses.
Most authority that Congress defines for an agency is executive authority.
When Congress delegates its authority to make laws to an agency, the agency is receiving quasi-legislative authority.
Agency created laws are not known as statutes, as are laws created by Congress. Instead, they are referred to as rules or regulations.
A delegation may violate the Constitution in one (or more) of three ways. 1) Congress may delegate too much of its own authority to an agency, 2) Congress cannot delegate to an agency its own essential functions or the essential functions of the judicial branch, 3) Congress may not make a delegation that gives one branch oversight or control over an agency that is performing the functions of another branch.
These separation of powers limitations on congressional authority are known as the delegation doctrine or negatively as the nondelegation doctrine.
Delegating Legislative Authority
Article I, Section 1 of the Constitution provides that all legislative authority of the US rests with Congress. There is no mention of agency rulemaking power in the Constitution.
The Great Depression led to the creation of many new agencies, each with broad delegation of …show more content…
authority.
For one brief period, in the mid 30’s, the Supreme Court scrutinized delegations very closely, and for the only time in American history, the Court struck down two delegations. The first occurred in Panama refining Co. v. Ryan, wherein the National Industrial Recovery Act of 1933 was challenged.
The NIRA authorized the Pres. Of the US to prohibit the transportation of certain oil products in interstate commerce.
It is the Pres. Duty to see that such a prohibition is enforced, not to create the prohibition.
Another delegation was invalidated in Schecter Poultry Corp. v. US. That case challenged the authority of the pres. Of the US to approve “codes of fair competition” for the poultry industry.
Supreme Court reversed the conviction because it found no solid policy statement to guide the agency when it created the code.
US v. Grimaud –
The Pres. Was authorized to set apart and reserve public lands as forest reservations. The Act provided that the management of these areas by the Secretary of Interior cut the power was conferred to Secretary of Agriculture.
The Secretary of Agriculture promulgated and established certain rules for the purpose of regulating the use of the land.
Defendants were charged with driving and grazing sheep on the reserve.
The court held that the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its action depend.
Panama Refining v. Ryan-
7/11/1933 – Pres. Prohibited the transportation in interstate and foreign commerce of petroleum…
7/14/1933 – Pres. Authorized the Secretary of Interior to exercise all powers vested in the Pres. “for the purpose of enforcing Section 9c of said act and order”…
7/15/1933 – Secretary of Interior issued regulations to carry out the Pres. Orders.
10/1933 – Panama refining sued defendants, federal officials, from enforcing regulations.
They attacked validity of section 9c as an unconstitutional delegation to the Pres. Of legislative power and as transcending the authority of congress under the commerce clause. The regulations and the attempts to enforce them were also assailed under the 4th and 5th amendments.
The Court held that Section 9c is brief and unambiguous. It leaves to the states and to their constituted authorities the determination of what production shall be permitted.
Section 9c does not state whether or in what circumstance or under what conditions the Pres. Is to prohibit the transportation of the amount of petroleum produced in excess of the state’s permission.
So far as this section is concerned, it gives the Pres. An unlimited authority to determine the policy and law as he sees fit and disobedience is made a crime. The Congress left the matter to the Pres. Without standard or rule to deal with as he pleased, essentially performing the function of the legislature rather than those of the executive.
There are limits of delegation which there is no constitutional authority to transcend, section 9c goes beyond those limits.
“Court packing plan” – Pres. Roosevelt proposed to Congress that it enlarge the Supreme Court by permitting a new appt. for every justice over the age of 70. At the time, 6 justices were over 70. (15)
Opponents of the plan asserted that the plan was a transparent attempt by the Pres. To control the judiciary. Justice Roberts eventually changed his direction in cases resulting in fewer decisions invalidating New Deal legislation defeating the proposal.
Nondelegation doctrine
Since 1935 the nondelegation doctrine has been used by the Supreme Court as a constitutional basis to strike down any delegation of legislative power.
Pursuant to the doctrine, a delegation of legislative authority is constitutional if congress establishes the nations fundamental legislative policy and leaves only the gap filling to an agency.
Some cases speak in terms of “standards” others refer to an intelligible principle – Congress must provide sufficient standards to an agency to guise it (and limit its discretion) in the administration of the power it has been delegated.
Supreme Court upheld a delegation in Touby v. US – statute authorized the AG to temporarily declare a drug as schedule I controlled under the Controlled Substances Act. Possession, distribution, or use of controlled substances criminal under that statute – US AG delegated responsibility of declaring penal law.
Until permanently scheduled, designer drugs could be possessed, distributed, and used lawfully. To resolve this Congress delegated to the AG authority to temporarily add, remove and reschedule drugs, following specified procedures, considering 8 factors - time consuming.
Temporary – to speed this up for public safety. There were still procedures and subject to judicial review.
The AG promulgated regulations delegating to the DEA his powers under the Act. Touby said its an unconstitutional delegation.
The Constitution provides that “all legislative powers herein granted shall be vested in a Congress. The court has derived the nondelegation doctrine. Congress may not constitutionally delegate its legislative power to another branch of government. It’s a separation opf powers issue. There has to be guidelines – it must lay down an intelligible principle to which that agency must act.
The Court held that the “imminent hazard to public safety” section is an intelligible principle. Greater specifity may be required in the criminal context.
The requirements or restrictions the AG must follow satisfys the constitutional requirements of the nondelegation doctrine.
Supreme Court case of Whitman v. American Trucking –
Congressional delegation of rulemaking authority to the EPA was upheld.
The Court of appeals held that this section did not provide an intelligible principle to set criteria; draw lines. “how much is too much?”. Supreme Court disagreed.
The Court held that in a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency.
There is a requisite standard for levels to protect the public health – within the scope
Congress is aware of the nondelegation doctrine restrictions and limits the amount of lawmaking power it transfers to agencies as a result. Lower courts enforce it. Used it to strike down a federal statute in:
SD v. Dept. of Interior
(later reversed but on different grounds).
Delegating judicial authority
Art. III provides that the judicial power shall be “vested in 1 supreme court and all inferior courts as Congress may establish – through Pres. Nomination and Senate approval.
The Court held there is a distinction between public and private rights.
Public rights usually involve a govt. and citizen or corporation. Private rights are those between individuals. (WC involves a private right)
SD v. Dept. of Interior –
Unconstitutional delegation of legislative power to acquire commercial land for Indians.
Nondelegation doctrine – Congress may not constitutionally delegate its legislative power to another branch of govt. A court must inquire whether Congress has itself established the standards of legal obligation, thus performing its essential legislative function.
So long as Congress lays down by legislative act an “intelligible principle” governing exercise of delegated power it has not unlawfully delegated its legislative power.
A delegation is overbroad if there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible to ascertain whether the will of Congress has been obeyed.
When Congress authorizes the Sect. to acquire land in trust “for Indians” it has given the agency no intelligible principle, no boundaries by which the public use underlying a particular acquisition may be defined and judicially reviewed.
The Court held that this section fails all 3 nondelegation criteria:
1) Social policy made by Congress
2) If delegating with intelligible principle
3) Tested against standards
Sect. had no authority.
Art. III established the Supreme Court and lower courts. Justices and judges of district and circuit courts are all Art. III judges.
To keep them independent of politics they enjoy lifetime tenure and salary.
Congress created non Art. III US magistrates, bankruptcy judges and military judges – Art. I judges.
If Pres. Establishes a court – Art. II
Because magistrates are not Art. III judges only certain responsibilities may be delegated to them.
They are accountable to Art., III judges rather than Congress or executive.
A defendant in a criminal case can demand that an Art. III judge preside over the critical stages of the proceedings.
Parties have the right to invoke right to go to judge.
Northern Pipeline v. Marathon Pipeline –
Court found the adjudication of private rights by the bankruptcy judge – against the objections of the parties – unconstitutional.
In Schor –
Agency had adjudicatory authority to hear counterclaims (inc. private rights claims) arising from the original facts – complaint. Counter-claimants had an option.
Court upheld delegation because 1) Congress had created a legitimate scheme to deal with a broad policy. 2) the agency had the authority to hear only small class of claims, 3) counterclaimant had the right to file in federal court, 4( agency had to turn to Art. III judges to enforce its orders, 5) scheme did not threaten independence of judiciary
Delegating to private agencies
It is becoming increasingly common for govt. to contract with private agencies to provide govt. services.
Govts. May do this because they lack the expertise to perform the necessary function.
Private companies can be more productive resulting in lower costs.
Legal issues – Compliance with civil service, regulatory, environmental and constitutional laws must be considered.
Some core functions cannot be delegated such as trying criminal cases.
Foley v. Osborne Condos
Although other statutes permit collection without court intervention none authorizes private entities to impose fines…
The Court held that The 1982 act represents an unconstitutional delegation of judicial or police power to the condo assn., a private entity.
A delegation of quasi-legislative authority to a private agency is more likely to be permitted than a delegation of quasi-judicial authority.
Private agencies that perform govt. functions may be treated as govt. agencies by the courts.
The private agency receiving the delegation must be in a position to serve the public interest not only financial interest.
Delegation and criminal law
Because violations of criminal law can result in imprisonment and death they are subject to special rules concerning delegation of authority.
Congress may not delegate to an agency the authority to set penalties for penal violations, with the possible exception of small fines.
Agencies may also act in a quasi-adjudicative role in penal cases, although this is extremely limited. In such cases, the agency’s authority must be limited to levying fines. Constitutional rights, privileges, and protections cannot be circumvented by calling a crime a civil wrong.
With sufficient guidance from Congress, an agency may establish rule declaring an act criminal, but it may not determine what punishment should be imposed for violation of the rule.
Any crime that is more serious or involves severe punishment, must be heard by a court.
Monetary penalties may be imposed by an agency, imprisonment may not – exclusively judiciary.
Arrest and Detention
Agencies may not order the imprisonment of individuals as punishment, they may arrest and detain persons if that action is justified by extreme circumstances. (i.e. Health – quarantine, INS – deportations).
Chapter 6 Definitions –
Formal Rulemaking – rulemaking on the record.
Ex parte communications – discussions between a judge or agency official who is conducting a hearing and a party about the matters under consideration, held in a location where, or in such a manner that, other interested parties cannot participate.
Informal rulemaking – “notice and comment” rulemaking.
Chapter 6 Outline – All agency actions can be classified as executive, quasi-judicial or quasi-legislative. When an agency acts in its quasi-judicial capacity, its behavior is referred to as adjudicatory. When acting in its quasi-legislative capacity it is called rulemaking.
Rulemaking is the process whereby agencies establish law to implement or perform a statutory duty.
The Federal Register is a govt. publication used to publish federal rules, orders and related docs and announcements.
Although regulations are subordinate to statutes, they have equal weight when applied.
There are different types of rules, some establish procedures, others create rights and obligations. Substantive rules must stem form an enabling statute.
The creation of an agency and an assignment of duties to it does not implicitly create the authority to promulgate rules; the legislative body must specifically authorize the agency to promulgate rules.
In addition to being within the legislative delegation, rules must be reasonable.
A rule must rationally relate to its enabling statute.
If the rule classifies a suspect class or impinges ona fundamental right it is tested under the strict scrutiny test.
In some circumstances, a 3rd test is applied, which falls between the rational relationship and strict scrutiny tests. Under this test, the rule must be substantially related to an important governmental objective.
Rules tested under the rational relationship test usually are determined to be valid, whereas most rules tested under the strict scrutiny test are not.
The APA defines a rule as the “whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency”.
The APA attempts to distinguish “decisions” and orders form rules if intended to have future effect it is a rule.
Generally, adjudications involve individual claims, whereas rules are directed at large groups.
Generally, agencies are free to make rules without hearings, this is not true of adjudications.
Rulemaking – Large group, future conduct, based upon facts and policy, sets standards by which a person may be adjudged or sanctioned.
Adjudication – individual, past conduct, resolution of dispute, based upon facts of dispute, determines compliance or sanctions
Volume of rules
Today the bulk of law is made by agencies, not legislative bodies.
Types of Rules
There are 2 different types of rules: legislative and interpretive. Legislative rules can be further divided into those that are procedural – agencies are normally bound by their own procedural rules, and substantive – these rules affect the rights of individuals and are functional equivalent of
statutes.
If promulgated properly, such rules have the effect of statutes; they require or prohibit actions and may impose penalties for violations of their mandates.
Interpretive rules do not declare something new; they do not fill in gaps of legislation. Rather they represent an agency’s interpretation of a statutes meaning.
Whether a rule is interpretive or substantive often depends on whether Congress has given the agency the authority to promulgate rules. If rulemaking authority has been granted, the rule is more likely substantive than interpretive.
Unlike substantive rules, interpretive rules do not have the force of statutes. Courts may interpret statutes on their own and are not bound by agency interpretations thereof.
Rulemaking Procedure
Rulemaking is the administrative equivalent of the legislative process of enacting statutes.
Because legislatures are not constitutionally required to conduct hearings or provide notice of proposed legislation, neither are agencies.
Congress has established procedures that agencies must follow when adopting rules.
The APA recognizes three procedural forms of rulemaking: formal, informal and exempted.
Formal rulemaking is the most time consuming, expensive and procedurally involved method of rulemaking for agencies.
Formal rulemaking is required only when Congress mandates it in separate statute. They must make it clear.
If the statute is unclear, or requires only a hearing, courts are likely to hold that informal rulemaking may be used.
Before a hearing is conducted, an agency contemplating a rule must give notice to the public; publish the date in the Federal Register.
Once the agency has satisfied the notice requirement, it must conduct an evidentiary or trial-type hearing on the date announced in its notice.
One adjudicatory rule that does not apply to formal rulemaking concerns ex parte communications. Section 554 of the APA prohibits ex parte communications between agency decision makers and interested parties.
US v. Florida East Coast Railroad –
After 1966 amendment commission decided it could impose an additional “incentive” charge.
The APA requires that the decision include a statement of “findings and conclusions and the reasons or basis thereof, on all the material issues of fact, law or discretion presented on the record.
Section 553 requires that an agency publish a final rule at least 30 days before the rule becomes effective . the interim period gives those affected by the rule an opportunity to comply before it becomes effective.
Informal Rulemaking
Under the APA, informal rulemaking exists by default. If a statute does not require formal rulemaking and an exemption does not apply, then informal rulemaking may be used.
First the agency must publish a notice of proposed rulemaking, normally in the Federal Register.
Second, the agency must give interested parties the opportunity to participate in the rulemaking process.
Finally, APA Section 553© requires that the agency issue its final rules with a “concise statement of their basis and purpose”/ 1) identify issue and agency’s reaction