Separation of Powers in Administrative Law

1
Separation of Powers in Administrative Law

• Delegation and Oversight

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Two views of separation of powers Separate
Spheres
Legislative
Executive
Categorize function Minimize overlap Formalist
interpretation
Judicial
3
Two views of separation of powers overlapping
powers
Legislative
Executive
Functions overlapdeal with it Protect core
functions Functionalist interpretation
Judicial
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Which approach produces more checks and balances,
accountability?
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Delegating legislative power

• Legislature hands over power to Executive
• Moral hazard (blaming the other branch)
• Undermines judicial review
• Risk that Executive may be captured or get
  sloppy

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Private delegations and the contracting-out
state

• Hoovers Associational State
• Great Depressions Blue Eagle codes
• Advisory committees
• Professional self-regulation (Medicare PROs,
  occupational licensing)
• Welfare state
• Privatized prisons

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The dark side of nondelegation

• Wipes out a regulatory program that may be
  necessary (can a political consensus be generated
  again?)
• May cut a broad swath through other regulatory
  programs (copycat legislation)
• Gives courts a roving commission to zap
  legislation

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How much is too much?

• Brig Aurora named contingency
• Naming contingencies is discretionary
• Rulemaking not an if-then situation
• JW Hampton intelligible principle
• Is be fair or be safe really intelligible?
• Procedures rather than standards
• How effective are procedures without standards?

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• Mistretta is it impossible to tell whether the
  will of Congress is being obeyed
• Is it ever impossible to say that some
  hypothesized action is not beyond the scope of
  the delegation?
• Lockout/Tagout, Benzene, Cotton Dust agency or
  court interpret statute to create a standard (but
  cf. American Trucking)

10
Having a vague, rarely used nondelegation
doctrine as a club in the closet may be the
best we can do, for now.
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Delegations of Judicial Power

• Crowell v. Benson, Schor v. CFTC can you take
  adjudicative decisions wholly out of Article III
  courts?
• Private common-law rights the most concern
• Core functions, functionalist approach
• Problems may grow with popularity of ADR

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Levels of oversight

• Constituent Problem
• Buck slip/forwarded e-mail
• Phone call
• Formal inquiry
• Oversight hearing

• Systemic Problem
• Oversight hearing
• Appropriations hearing
• Appropriations Rider
• Legislative amendment

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Legislative Oversight and the One-House Veto
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How Congress acts

• Legislation (be it enacted)both houses vote,
  present to President for signature or veto
• Concurrent resolution (be it resolved)
  --both houses vote, present to President for
  signature or veto
• Joint resolution (be it resolved)both houses
  vote, no presentment
• One house veto (either house pass a resolution of
  disapproval), no presentment

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Life after Chadha

• One-house vetoes are clearly unconstitutional,
  and most probably so are two-house vetoes without
  presentment
• Report and wait with an option to override
  legislatively is still viable
• Corrections Day and appropriations riders are
  common legislative tools