Policing the Legislative Branch

1
Policing the Legislative Branch

• Congress has increasingly delegated its powers.
  Why?
• Congress may have general information about a
  problem, but not enough expertise to solve it
• In areas of rapid change, Congress may not have
  enough flexibility to keep up
• Avoid political accountability Congress may take
  credit, but leave it to agencies to figure out
  the hard choices

2
The Constitutionality of Broad Delegations of
Lawmaking Power

• The nondelegation doctrine pre-1937 the Court
  struck down Congressional delegations of
  lawmaking power unless they included an
  intelligible principle for rule-making the
  Court also invalidated delegations of broad
  rule-making authority to private groups.
• The 1937 Constitutional crisis the Court stopped
  enforcing the nondelegation doctrine.
• Yakus v. U.S. (1944) upheld the delegation of
  power to the Price Administrator to set fair and
  equitable prices
• Industrial Union Dept. v. American Petro (1980)
  upheld delegation under OSHA to Secretary of
  Labor to promulgate regulations of toxic
  materials to assure to the extent feasible
  worker health and safety.

3
Modern Examples of the Non-enforcement of the
Non-delegation doctrine

• Mistretta v. U.S. (1989) Court upheld Congress
  delegation of power to the U.S. Sentencing
  Commission to develop sentencing guidelines
• Blackmuns opinion for the Court suggests that
  the Court should step in only if there is an
  absence of standards to guide the exercise of
  power
• Whitman v. Am. Trucking (2001) Court upheld the
  Clean Air Acts delegation to the EPA to
  promulgate air quality standards to protect
  public health
• Scalias opinion for the Court suggests that the
  Court should not second-guess Congress regarding
  how much policy-making to delegate to those
  executing the law
• However, the Court did construe the statute to
  set some constraints on how the EPA was to go
  about setting proper air quality standards

4
Should the Court Revive the Nondelegation
Doctrine?

• Rehnquists dissent in American Petro the
  doctrine assures Congress accountability and
  makes sure there is an intelligible principle
  that courts can use to protect individuals from
  overreaching agencies.
• On the other hand, perhaps broad delegations are
  necessary in an increasingly complex world. The
  alternative is to leave more private conduct
  unregulated, which would protect the status quo.

5
Given that Broad Delegations are Common, How Can
Congress Retain Its Central Role as Law-maker?

• What Congress has tried
• Retain a veto power over the exercise of the
  delegated power (Chadha)
• Delegate power to executive officials who have
  some accountability to Congress and/or are
  insulated from Executive branch control (Bowsher
  and Morrison)

6
The Downfall of the Legislative Veto INS v.
Chadha

• The Immigration and Nationality Act
• If visa expires, deport
• Unless AG finds sufficient reason to suspend
  deportation (hardship, etc.), in which case do
  not deport
• Unless either house of Congress vetos the AGs
  decision not to deport, in which case, deport

7
Why did this Scheme Violate Separation of Powers?

• Why isnt it enough that the statute that set up
  this scheme, delegating authority to the AG, met
  the bicameralism and presentment requirements in
  the first place?
• How does the Court know that the one-house veto
  is an exercise of lawmaking power, as opposed
  to legitimate oversight of the Executive pursuant
  to a statute that was properly enacted as law?
• Why isnt it law-making when the AG decides to
  suspend the deportation?
• See Fn. 16 is this an adequate response?

8
How Would Chadha Come Out Under a Functionalistic
Analysis?

• Is Congress aggrandizing its power through the
  use of a legislative veto?
• Does Congress use of the legislative veto impair
  the functioning of another branch (the Executive
  branch)?
• Is Congress evading an appropriate check by
  another branch (the Executive, by sidestepping
  the veto power)?

9
Other Attempts by Congress to Retain Control Over
Delegations of Power

• Constraints on officers receiving the delegation
• Retain congressional control over the person
  exercising delegated power (Bowsher)
• Insulate the person/agency with delegated from
  Presidential control (Morrison)

10
Congressional Control Over Executive Officers
Bowsher

• Bowsher v. Synar (1986) The Court strikes down
  Gramm-Rudman-Hollings Act giving Comptroller
  General the power to implement budget cuts
• What exactly was wrong with this structure and
  why?
• What kind of officer is the Comptroller General
  executive or legislative?

11
Applying a Functional Analysis

• How would Bowsher be decided under a functional
  analysis?
• Was Congress aggrandizing its power?
• impairing another branchs functioning?
• evading a proper check from another branch?