Administrative law

CONSTITUTIONAL CONCERNS FOR AGENCY ACTION/CONTROL
1) NONDELEGATION
a) Look to when the statute in the question has really broad language/purposes
b) Rule: Under the non-delegation doctrine, Congress cannot delegate its legislative power to an agency because the Constitution vests Congress with this power.
i) But long as the Act from Congress gives the agency some “intelligible principle” that the agency must conform to, the delegation will survive. Whitman (agency cannot sure own non-delegation problem). From the analysis is Whitman, it seems that relatively general statutory purposes or broadly stated instructions ot agencies will supply an intelligible principle. Whitman (“requisite to protect public welfare” is ok). ii) When confronted with really broad language, courts will try to avoid the question whether the language violates the non-delegation principle by interpreting the agency’s discretion narrowly. Benzene.
c) Case facts:
i) Whitman: EPA revises air quality standard following “requisite to protect the public health with the adequate margin of safety” and “requisite to protect public welfare” = ok ii) Mistretta: Congress must (1) clearly delineate policy, (2) say who will apply it, and (3) set boundaries for the authority. Act’s declaration of purposes and goals, and its specification of the factors the Commission should consider provides a sufficient intelligible principle. iii) Benzene: Court rejected OSHA’s broad interpretation of the statute.-“Reasonably necessary or appropriate,” set standard which most adequately assures, “to the extent feasible” that no employee suffers harm. Agency may not have a delegation problem with "reasonably necessary," but they still need to justify it with data. The secretary didn't make a finding using evidence to show that it was "necessary and appropriate," which he had to do. The decision to default to "less rather than more" was a policy decision that wasn't justified by any data secretary did not use evidence to demonstrate necessary/appropriate, therefore exceeded his delegated authority.
2) LEGISLATIVE VETO—unconstitutional
a) With a legislative veto, Congress reserves the power to reject agency action with a vote. In INS v Chadha, the Court held that a one-house veto was unconstitutional because it violated the constitutional requirements of bicameralism and presentment. Use of the veto was “legislative” power because it altered the rights and duties of those outside the legislative branch, and use of legislative power requires both bicameralism and presentment.
b) Consumer Energy Council: lack of presentment alone violates constitution.
c) Response to Chadha, the Congressional Review Act
d) Note: even if unconstitutional, a court might still severe the clause and keep the rest.
3) APPOINTMENT POWERS
a) Is an official being appointed/does the statute say how appointment is supposes ot occur?
b) Rule: The Appointments Clause of the Constitution governs the appointments of those deemed “officers of the United States.” While the President must—with advice and consent of the Senate—appoint all “principal” officers, Congress may vest the appointment (by legislation) of “inferior” officers in the President alone (without the Senate), the courts of law, or in the Heads of Departments.
i) The default option for both inferior and principal officers is presidential appointment with advice and consent of the Senate.
c) Steps:
d) 1) Is the official an Officer?
i) Buckley: Anyone who exercises "significant authority pursuant to the laws of the United States" is an officer, and thus HAS to be appointed via the Appointments Clause process.
(1) To engage in executive actions like rulemaking and enforcement, need AC process.
(2) However, those who merely “aid in legislation” do not need to follow the AC process. ii) Freytag: Court gives broad conception of who is an “officer,” suggesting that even fairly low level people can be considered officers if engage in “more than ministerial activities”
(1) No discretion or authority to administer federal law = employees.
(2) Special trial judges in tax court were officers because they have a good amount of discretion and authority when preside over hearing, even when they can only make a recommendation to tax court judges and not final decisions.
e) 2) If yes, Is the official a “principal” or “inferior” officer?
(1) Edmond: “whether one is an “inferior” officer depends on whether he has a superior appointed by the President with advice and consent of the Senate.
(2) Edmond reaffirmed in Free Enterprise.
(3) Morrison looked to the nature of the official’s responsibility to determine if the official was inferior or principal. The court said an inferior officer 1) is subordinate to a higher official (including being able to remove only for cause) 2) has limited duties 3) office has limited jurisdiction and 4) limited in tenure
(a) Morrison: independent counsel to investigate wrongdoings by executive branch and could be removed by the AG for good cause, but not supervised by the AG is an inferior officer
(b) Edmond: official is inferior because he is supervised, but not limited in scope or duration.
(c) Free Enterprise: SEC given authority to appoint PCAOB Board members. members of the Board are inferior officers b/c they are subject to removal and supervision by the SEC. So Congress’ specification of their appointment by the SEC was appropriate.
(d) How to reconcile?
(i) Scalia would say Edmond overruled Morrison.
(ii) Having a superior could be sufficient, but not necessary condition for being inferior. ii) 3) Who may appoint inferior officers?
(1) Not Congress—those who Congress appoints cannot exercise legal authority.
(2) President (alone), courts, heads of department
(a) Department—“Any freestanding component of the Executive Branch, not subordinate to or contained within any other such component” should be considered a Department.
(i) Each independent agency is a Department. Free Enterprise.
(b) Head—could be more than one person
(3) Limits: Congress cannot assign the appointment power of inferior officers that are incongruous. Morrison dicta.
(a) Morrison: a court appointing the independent counsel in the executive was ok because of the concern over conflicts of interests in the executive. iii) 4) What if Congress specifies an appointment procedure that violates the AC?
(1) Appointment is not void, but the court will hold that the appointee may not perform functions reserved for officers, ie. They cannot exercise authority pursuant to the law. See Buckley (appointees could not engage in enforcement/prosecution or rulemaking).
4) REMOVAL
a) Default: the President has the power to remove executive officals at will.
b) If a statute restricts the President’s authority to remove
i) Congress cannot participate in removal except for impeachment—Congress can only limit the President’s ability to remove officals, but cannot retain advice and consent power over removal/participate in removal except through its impeachment power (otherwise violates SOP). Bowsher.
(a) Dissent: no functional threat to SOP here, characterization of CG’s duties as “executive” too formalist ii) A possible unifying theme? Independence/ self-aggrandization by Congressional delegation:
(1) Humphrey’s Estate, Mistretta: independence. Constitutional.
(2) Chadha, Meyers: Congress reserving more power than it already has under Constitution. Not Constitutional.
(3) Bowsher: read as a self aggrandization case b/c Congress supposedly doesn’t already have power to remove c.p. – but it does! Through the impeachment/trial process.
(4)
c) ADD MORE HERE
i) Directive authority
(1) Executive Orders (to centralize regulatory review) (centralization, coordination, CBA)
(a) Unclear whether president has C authority to direct ag head action; but practically speaking, ag heads will do what the president tells them to do
(i) Kagan: Congress knows this, and knows when they delegate power to an executive ag (not ind) it is delegating that power to the president
(b) Statements of philosophy and principles
(c) Statements of centralized review
(i) Seek involvement from those burdened by review
(ii) Conduct a CBA for OIRA
1. Quantitative ($) v qualitative (dignity, human rights) benefits
2. Willingness to pay