Delegation of Authority

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Delegation of Authority
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Constitution Article 1, Section 1

• "Legislative power vested in the Congress of the
  United States."
• For a long time, courts took this literally
• New Deal--Statutes granting power to agencies to
  regulate different sectors of the economy.
• 1935 Supreme Court invalidated delegation of
  authority in 3 cases
• Panama Oil, Schecter Poultry, Carter Coal

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Why does Congress Delegate?

• Congress doesn't have time to deal with
  specifics.
• Intellectual limitations
• Administrative flexibility, not prone to politics
• Politics (Congress can't agree)

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Delegation Models

• Good Govt Model
• Administration carried out by "nonpolitical"
  exptert officials
• Certain amount of discretion and flexibility

• Shift-the-Responsibility Model
• Legislators avoid the time and trouble necessary
  to develop specific decisions
• Avoid responsibility of making a "bad" decision
• Congressman can then serve the constituency by
  looking into a problem caused by the bureaucracy
  (casework).

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Important Constitutional Issues

• Traded separation of powers for a system that
  concentrates power to a branch that is more
  remote from popular control.
• Put all three powers into one branch.
• Congress recognized potential concerns and
  problems.

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Administrative Procedure Act

• Procedures to deal w/ shortcomings of delegation.
• Divides all administrative procedure into three
  categories
• rulemaking
• adjudication
• everything else (e.g., delivery of services,
  etc.).
• Core elements of rulemaking are information,
  participation and accountability.

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Information

• Basic forms
• Notice of proposal provided to the public
• Notice of final action.
• Typically appear in the Federal Register.
• Two sources of information
• Info gathered to form policy
• Info agency must provide to the public

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Information (cont)

• Agency must consider certain types of info when
  making policy
• Authorizing Statutes
• Information Statutes
• Executive Order Requirements

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Participation

• Must allow opportunity for written comments but
  beyond that it is up to the agency.
• Agency does not have to listen to these comments.
• Other statutes have required additional
  participation mechanisms beyond written comments
  (e.g., legislative hearings, advisory committees,
  etc.

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Accountability

• Provided through the potential for judicial
  review.
• Occurs also through the agency rule writers being
  responsive to superior authorities (president and
  Congress)

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Delegation Today

• Congress can transfer to agencies any power it
  wants to with general provisions.
• Substantive vagueness is allowable because it is
  up to the agency to tell the public how it
  interprets their mission.
• Courts will expect greater specificity when
  Congress delegates in certain areas.

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Dangers of Delegation

• Deranged our constitutional system
• Delegation becomes excessive when agencies create
  private goods for somebody's benefit
• Interest Group Liberalism
• Increase in procedures to compensate for
  Congress' substantive failing.
• Procedures co-opt the affected interest and
  legitimate the actions taken by agencies.

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Bureaucratic Discretion

• Discretion allows the government
• to diffuse conflict
• To take on a larger policy agenda
• To be flexible and adaptable to changing
  situations.
• But, it also threatens the idea of political
  accountability, since decisions are often made by
  unelected officials

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Limits on Discretion

• Legal procedures outlined in the APA and in
  specific authorizing statutes.
• Scientific and economic decision rules and
  analyses have been emphasized to inform agency
  decision making.
• Oversight by the Congress and President

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Administrative Law and Procedures

• Developed as way to control administrative
  discretion through legal procedures.
• Granted right to seek judicial review
• Divided administrative proceedings into two
  categories rulemaking and adjudication.
• Adjudication is the way an agency formulates an
  order. Conducted a "trial-type" hearing between
  two parties. Typically deals with an action that
  has taken place in the past.
• Rulemaking

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Procedures (cont) Rulemaking

• Rulemaking can be divided into two types formal
  and informal. Most agencies use informal aka
  notice-and-comment rulemaking
• Three MINIMUM steps
• Notice to public that agency is proposing an
  action.
• Opportunity for interested parties to comment on
  the action.
• Publication of final agency rule taking comments
  into consideration.

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Procedures (cont)

• Additional procedures have been added
• Courts added additional procedures to ensure due
  process.
• Congress added procedures to constrain agency
  activity. (Substantive statutes)
• e.g., open hearings, minimum comment periods,
  ANPRMs, certain type of analyses, etc.
• More general statutes such as the Paperwork
  Reduction Act applied to all agencies.

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Procedures (cont)

• Procedures are important and often political in
  their application
• Can provide interested parties with access
• Provide opportunities for elected officials to
  control policymaking

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Scientific and Economic Analysis

• Requirements that agencies take certain
  information into consideration when making policy
• Economic (e.g., cost-benefit, cost-effectiveness
  analysis)
• Scientific (e.g., risk analysis, science advisory
  boards, etc.)

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Oversight (Congressional)

• Variety of mechanisms to oversee agencies
• hearings, budget, statutes, etc.
• Hammers - provisions in statutes that will take
  effect on a certain date should the agency fail
  to issue an alternative regulation.
• Statutory Deadlines -- many times unrealistic.

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Police Patrol v. Fire Alarm Oversight

• Argument to examine if oversight is decreasing.
• Police-Patrol -- examines everything may be
  inefficient, costly
• Fire-Alarm -- examines problem areas, brought
  forth by others may not catch problems quick
  enough

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Congress Constraining Agencies

• Different institutional settings
• Scope of regulatory authority
• Regulatory instruments/devices
• Encumber w/Procedural devices
• Relationship between scope, discretion,
  uncertainty and conflict

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Presidential Oversight

• Why is it necessary?
• President is elected by all the people and has
  more of a macro view of public policy.
• Link individual rulemakings to a broader mandate
• Resolve conflicts and inconsistencies.
• Mechanisms
• Appointment power, Enforcement guidelines,
  Reorganization, Budgets, Executive Orders and
  Presidential Review

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Evolution of Pres. Oversight

• Pre-Reagan
• Reagan Admin.
• Freeze on regs.
• E.O. 12291, 12498 (presidential review)
• Personnel/budget
• Bush Admin.
• Competitiveness Council
• Regulatory Moratorium
• Clinton Admin.

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OMB Review

• Major controversy
• What type of influence does OMB have?
• How much delay does OMB cause?
• OMB has an advantage in that
• "power of persuassion"
• threat of delay
• can summon allegiance to the administration
• use of the budget to leverage the agency.

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How much discretion?
Acceptable range of congressional policy
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How much discretion?
Acceptable range of congressional policy
Acceptable range of presidential policy
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How much discretion?
Acceptable range of congressional policy
Acceptable range of presidential policy
Actual amount of administrative discretion