Politics 117a
Fall 2007
Final Examination Review
THE CONSTITUTIONAL FRAMEWORK FOR ADMINISTRATION
Delegation of Legislative Authority
Cases
JUSTICE BLACKMUN delivered the opinion of the Court.
...The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U.S. Const., Art. I, 1, and we long have insisted that "the integrity and maintenance of [488 U.S. 361, 372] the system of government ordained by the Constitution" mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409.
Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 145 (1941) ("In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy"); see also United States v. Robel, 389 U.S. 258, 274 (1967) (opinion concurring in result). "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function." Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly [488 U.S. 361, 373] delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).
...
Justice Rehnquist wrote in his concurring opinion:
..."In his Second Treatise of Civil Government, published in 1690, John Locke wrote that "[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands." 1 Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress' ability to delegate its authority to representatives of the Executive Branch: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution". Field v. Clark, 143 U.S. 649, 692 (1892). [As early as 1812, this Court had considered and rejected an argument that a statute authorizing the President to terminate a trade embargo on Britain and France if those two nations ceased violating "the neutral commerce of the United States" delegated too much discretion to the Executive Branch. See The Brig Aurora v. United States, 7 Cranch 382, 383, 386, 388.
]
The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of power was a two-sided coin. James Madison, in Federalist Paper No. 48, for example, recognized that while the division of authority among the various branches of government was a useful principle, "the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." The Federalist No. 48, p. 308 (H. Lodge ed. 1888).
This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution.
"...
Relate Rehnquist's statement to the constitutional doctrine of delegation of legislative power to administrative agencies. Compare Rehnquish with Blackmun in Mistretta above.
Other Delegation Cases
The Delegation of Quasi-Judicial Power
Focus:
Chief Justice Charles Evans Hughes stated in Crowell v. Benson (1932):
"In Murray's Lessee v. Hoboken Land & Improvement Company, 18 How. 272, 284, this Court, speaking through Mr. Justice Curtis, said: 'To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination.'
"
Compare Justice O'Connor's majority opinion in CFTC v. Schor with Justice Hughes quote above and with
Justice Brennan dissenting in Schor:
The Framers knew that "[t]he accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, [478 U.S. 833, 860] whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 46, p. 334 (H. Dawson ed. 1876) (J. Madison). In order to prevent such tyranny, the Framers devised a governmental structure composed of three distinct branches - "a vigorous Legislative Branch," "a separate and wholly independent Executive Branch," and "a Judicial Branch equally independent." Bowsher v. Synar, ante, at 722. The separation of powers and the checks and balances that the Framers built into our tripartite form of government were intended to operate as a "self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam). "`The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question.'" Bowsher, ante, at 725 (quoting Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935)). The federal judicial power, then, must be exercised by judges who are independent of the Executive and the Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.
The Framers also understood that a principal benefit of the separation of the judicial power from the legislative and executive powers would be the protection of individual litigants from decision makers susceptible to majoritarian pressures. Article III's salary and tenure provisions promote impartial adjudication by placing the judicial power of the United States "in a body of judges insulated from majoritarian pressures and thus able to enforce [federal law] without fear of reprisal or public rebuke."
THE EXERCISE OF ADMINISTRATIVE POWER: RULE-MAKING AND ADJUDICATION
1. The distinction between rule-making and adjudication
Cases
2. Agency Discretion in choice of procedure
Cases
3. The Role of Private Parties in Shaping
Administrative Proceedings
Cases
b. What Sort Of Interests Count? 1128
Association of Data Processing Service Organizations, Inc. v. Camp 1129
SCOPE OF REVIEW OF ADMINISTRATIVE ACTION
First review #706 of the APA which directs reviewing courts to:
Compel agency action unlawfully withheld or unreasonably delayed.
Hold unlawful agency action found to be:
a. arbitrary, capricious, an abuse of discretion;
b. unconstitutional;
c. ultra vires the statute;
d. without observance of procedure required by law;
e. unsupported by substantial evidence in formal proceedings required by law ( statute and APA);
f. unwarranted by facts where the facts are subject to de novo court review.
Cases
Review of Factual Determinations
Judicial Review of Agency Determinations Beyond the Facts
Question Focus
Congress established regulatory agencies to develop expertise through specialization. The agencies were to do a job that Congress itself could not or would not do for practical and/or political reasons ( cf. Chevron).
Given the expert role of agencies what is the scope of judicial review of agency decisions? How far do courts second guess the agencies and conversely to what extent do they defer to administrative decisions?
How did the Supreme Court defer to agency choice of procedure in:
Can you think of other cases in which the courts deferred to agency choice of procedure, and where the courts overruled agency procedures? Overruling agency procedure requires a finding that the procedure was unauthorized, by statute or the Constitution, including due process requirements.
Now can you cite cases in which the courts overturned an agency ruling on substantive grounds, for example because it was not authorized by law or was arbitrary and capricious, or even unconstitutional? (APA #706). Does Chevron v. Natural Resources Defense Council (1984) rule out meaningful judicial review of agency policy choices? Would the Chevron approach have upheld Secretary Volpe's decision that the Supreme Court reviewed in Citizens to Preserve Overton Park v. Volpe (1971)?
Questions for Review
1. Administrative law at every turn involves the courts in the administrative process. Compare Justice Jackson's view of the approach courts should take in reviewing administrative decisions under the Administrative Procedure Act of 1946 in Wong Yang Sung v. McGrath (1950) with Justice Stevens analysis of how courts should review administrative action in Chevron v. Natural Resources Defense Council (1984).
Does the Chevron approach support Jackson's decision to overturn the action of the INS in Wong Yang Sung?
Now Compare the opinions in of Justices Clark (for the Court), and Black (dissenting) in
MARCELLO v. BONDS, 349 U.S. 302 (1955)
, with Justice Jackson's reasoning regarding the APA's intent in Wong Yang Sung v. McGrath. Would the Chevron analysis support Justice Clark or Black in the Marcello case?
2. Does the Chevron analysis support:
3. Review:
Cases
Office of Communication of the United Church of Christ v. FCC (1966), p. 334.
Envirocare of Utah, Inc. v. NRC (1999), p. 339
Compare the court's Chevron analysis in Envirocare with Scenic Hudson and United Church of Christ.
Analyze the courts' reasoning in each case. Which rulings do you favor and why? In your answer
discuss what you consider to be appropriate judicial review of administrative action.
4. The Administrative Procedure Act responded to conservative concerns that regulatory agencies would produce "administrative despotism."
Where does administrative law jurisprudence place regulatory agencies within our constitutional system?
In your answer summarize the delegation of legislative and judicial power cases.