Delegation Doctrine - Rulemaking

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Chapter 2

• Part 1

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Delegation Doctrine - Rulemaking

• Great historical interest
• Key issue in the judicial fight over the new deal
• The United States Supreme Court was concerned
  that delegation of legislative or judicial powers
  to agencies violated separation of powers
• Court shifted to looking for whether Congress
  provided enough guidance for the court to review
  the agency actions
• The "intelligible principle" test
• This is all you need to know about the history

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"Intelligible Principle" - Rulemaking

• The court has to be able to review an agency's
  actions to make sure they are within the
  congressional grant of power.
• If the legislature does not provide an
  "intelligible principle" to guide the court in
  reviewing agency action, the courts will strike
  down the agency action
• Key - the law is constitutional, but it does not
  provide useful power to the agency
• Under the delegation doctrine, the law was
  unconstitutional

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What is an Intelligible Principle?

• Specific guidance is best
• Congress will provide very specific guidance if
  it wants to limit agency discretion - the ADA
• General/ambiguous guidance is also usually OK
• in the public interest"
• Depends on whether context can provide meaning
• We will explore this in the Chevron and FDA
  cigarette cases

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Delegation Doctrine - Adjudications

• Old test was public versus private rights
• New Test
• 1 the extent to which the essential
  attributes of judicial power are reserved to
  Article III courts, and
• 2 conversely, the extent to which the
  non-Article III forum exercises the range of
  jurisdiction and powers normally vested only in
  Article III courts,
• 3 the origins and importance of the right to be
  adjudicated, and
• 4 the concerns that drove Congress to depart
  from the requirements of Article III.
• Is the administrative law judge (ALJ) acting as
  an Article III judge?

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Practical Considerations

• The court is very unwilling to find adjudications
  exceed constitutional authority under this test.
• This may be because Congress has not passed laws
  which test the outer limits of agency authority
• Can happen when adlaw is used for criminal
  actions
• There are state law fights over this - Wooley
• There are limits on the transformation of
  criminal matters to agency adjudications
• Traffic court can be civil, but only if there is
  no jail time
• Large civil fines push the edge, especially if
  there are also criminal penalties for the same act

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Control of Agencies

• The ultimate control over an agency is through
  hiring and firing agency personnel, or at least
  through having that option available
• Is the president free to appoint and remove who
  he wants?
• How much control can congress exercise over
  executive branch agency personnel?

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Art II, sec. 2, cl 2 - the Appointments Clause

• "The President shall nominate, and by and
  with the Advice and Consent of the Senate, shall
  appoint... all other principal Officers of the
  United States, whose Appointments are not herein
  otherwise provided for, and which shall be
  established by Law
• but the Congress may by Law vest the
  Appointment of such inferior Officers, as they
  think proper, in the President alone, in the
  Courts of Law, or in the Heads of Departments.

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Limits on Congressional Appointments

• Congress creates and shapes the executive branch
• Without specific appropriations, there would be
  no White House and the president would have to
  rent space from his own pocket
• Under the Appointments Clause, Congress cannot
  make appointments to executive branch agencies
• Congress can impose requirements on appointments
• Limitations on who can be appointed, such as
  requiring political balance on the FEC
• Limitations on removal, which create independent
  agencies discussed later in the chapter

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Civil Service

• Congress developed the Civil Service to protect
  workers from losing their jobs every time the
  administration changed
• Most personnel are civil service and can only be
  fired for cause with due process
• Limited due process for security agencies
• This was carried over and broadened in the
  Homeland Security Agency

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Pros and Cons of the Civil Service

• Why is it important to you if you want to be a
  government lawyer?
• What are the problems with the system?
• How high should it go?
• Career track problem for senior people without
  lucrative outside jobs
• Public Health Directors
• Lawyers in specialized areas without private
  practice

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Buckley v. Valeo

• Original process for selecting members of the
  Federal Election Commission (FEC)
• Two members appointed by the President pro
  tempore of the Senate,
• two by the Speaker of the House, and
• two by the President (all subject to confirmation
  by both Houses of Congress), and
• the Secretary of the Senate and the Clerk of the
  House as ex officio nonvoting members
• Challenged as an Appointments Clause violation

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The Role of the FEC

• What does FEC do that is forbidden to Congress?
• This is the defining action for an executive
  branch agency
• How does allowing congress to appoint commission
  members undermine separation of powers?
• Was the selection process for the FEC
  commissioners constitutional?

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The Congressional Budget Office (CBO)

• The primary function of the CBO is to give the
  House and Senate Committees on the Budget
  information that will assist such committees in
  the discharge of all matters within their
  jurisdiction. The CBO also has additional
  duties, all of which relate to giving Congress
  information on budget matters.
• The Director is appointed for a four-year term by
  the Speaker of the House of Representatives and
  the President pro tempore of the Senate.
• Does this appointment scheme violate the
  Appointments Clause?

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Washington Airports Authority v. Citizens for the
Abatement of Aircraft Noise, Inc. (MWAA)

• The federal statute authorized the airports to be
  run by an Airport Authority
• Major decisions of the Airport Authority were
  subject to the veto of a Board of Review.
• The federal statute dictated that the Board be
  composed exclusively of Members of Congress.
• Putting aside the Appointments Clause issue, how
  does having Congressmen on the board violate
  Bicameralism and Presentment?

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The Library of Congress

• The Librarian is appointed by the President.
• Its operation is overseen, however, by the Joint
  Committee of Congress on the Library.
• The Joint Committee consists of the chairman and
  four members of the Committee on Rules and
  Administration of the Senate and the chairman and
  four members of the Committee on House Oversight
  of the House of Representatives.
• Is congressional oversight a violation of
  separation of powers?
• Does it need to be an executive agency at all,
  i.e., could congress run its own library and hire
  the director?
• What do we need to know about the library to
  decide?

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Congressional Removal of Executive Branch Officers

• Impeachment
• Brought by the house
• Senate as jury
• Only for Treason, Bribery, or other high Crimes
  and Misdemeanors.
• Why is this of limited effectiveness for agency
  oversight?
• Could Congress remove the head of the CBO without
  impeachment?

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Formal Legislative Review and Oversight of
Executive Branch Agencies

• (1) an appropriations committee, which oversees
  how the agency spends its budget
• (2) a substantive committee, which oversees the
  substance of the agencys work and
• (3) government operations committee, which is
  concerned with the agencys efficiency and its
  coordination with other parts of the government.
  
• One of each of these three types of committees
  will exist in both the Senate and the House.
• Why did they all miss the financial agency
  failures?

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Informal Legislative Review and Oversight

• Members of Congress ask agencies about some
  grievance of their own or their constituents.
• all types of contacts (telephone calls, e-mails,
  and so on) between individual Members of
  Congress, or the Members staffs, or a
  committees staff, and agency officials.
• Many of these informal contacts relate to
  discrete agency actions affecting specific
  constituents.
• Do you think Congressmen get better service?
• Where does lobbying come in?
• Charlie Wilson's War?

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What is an Earmark?

• Congress enacts a statute that appropriates a
  lump sum of 10 million for the Indian Health
  Service (IHS)
• The appropriations statute is accompanied by a
  report from the appropriations committee saying
  that IHS should use part of the 10 million to
  continue operating an existing medical clinic.
• The appropriations statute itself, however, does
  not refer to the clinic. Nor does IHSs organic
  statute.

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Enforcing Earmarks

• The organic statute broadly authorizes IHS to
  spend its appropriation for the benefit, care,
  and assistance of the Indians.
• What if the agency ignores the report and closes
  the health center?
• Can this be challenged in court?

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Executive Power
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Vesting and Take Care Clauses

• The executive Power shall be vested in a
  President of the United States of America. U.S.
  Const. art. II, 1.
• Article II says that the President,
  specifically, shall take Care that the Laws be
  faithfully executed. Art. II, 3.
• Together, these define the source of the
  president's domestic powers

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The Unitary Executive

• Do all of the executive branch powers belong to
  the president him/herself?
• In Chadha, Congress gave the Attorney General the
  power to stay the deportation of an alien
• Can the president override the AG's decision?
• Can he only fire the AG?
• Why does it matter whether the president has the
  power or the AG has the power?
• How does the Appointments Clause fit into this
  analysis?
• If it is the president's power, why should the
  Senate care who he appoints?

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President Nixon and the Independent Counsel

• Great crisis in presidential control.
• What was the Saturday night massacre?
• Why do the liberals really hate Bork?
• He carried out Nixon's order to fire Cox
• Nixon's firing of the independent prosecutor was
  the background for this law

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What was Clinton's biggest political mistake?

• Not vetoing the renewal of the Independent
  counsel law
• Hubris - it had been attacking Republicans and he
  was going to have the most ethical administration

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Stopped here
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Morrison v. Olson, 487 US 654 (1988)

• Why was Olson suing and what did he want?
• What triggers the appointment of an independent
  counsel?
• Who appoints the independent counsel?
• Why will this always be political?
• Reno and Gore
• Ashcroft/Gonzales and Halliburton

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The Core Function Standard for Inferior Officers

• Is it an "inferior" official?
• yes, because of the limited mandate - no policy
  making
• Is this a critical area for the president to
  control the exercise of discretion?
• no, that is why it is independent
• Does the president retain enough control?
• yes, good cause firing is enough, and this is
  exercised through someone (AG) the president
  controls

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What was the key issue in Olson?

• The limitation of the removal power to good
  cause, rather than at-will
• Does this impermissibly interfere with the
  president's power to carry out the laws?
• Majority says no, rejects the use of
  "quasi-legislative/quasi-judicial" labels and
  focuses on separation of powers

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Intimidation by the IC

• Scalia saw this as a stark limitation on the
  president's power to exclusively control the
  executive branch
• He pointed out that while the IC may not
  intimidate the president, it will affect
  executive branch officers who are subject to what
  seems political prosecution

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Was Scalia Right?

• What was he worried about as regards the power of
  the office?
• He stresses the broad powers of the IC
• What would it cost you to be investigated?
• Was Scalia right about the impact of the IC?

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Edmond v. US, 520 U.S. 651 (1997)The Supervision
Test

• Coast Guard criminal appeals judges are subject
  to administrative supervision by the Judge
  Advocate General, who also has the power to
  remove them without cause.
• The judges decisions are subject to review by
  the Court of Appeals for the Armed Forces.
• In Edmond, the Court held that judges of the
  Coast Guard Court of Criminal Appeals are
  inferior officers.
• The Edmond Court based that holding exclusively
  on the fact these judges work is directed and
  supervised by principal officers.

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Congressional Determinations

• If the Congress establishes that the position is
  an inferior officer, the courts have not
  second-guessed it.
• This might change if Congress created an inferior
  office that was clearly the job of a principal
  officer.
• Be careful of circular arguments
• Just because an officer is not required to be
  appointed under the appointment's clause, that
  does not prevent the court from finding that the
  position is covered by the Appointment's Clause

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Example General Counsel to a Cabinet Agency

• What is the classification of the Secretary of
  Veterans Affairs?
• What are the duties of the General Counsel to the
  Secretary?
• Is the general counsel an employee, inferior
  officer, or principle officer of the US?
• Much more authority than just an employee
• Does the general counsel make decisions that
  affect agency policy or enforcement?
• What is the level and right of supervision by the
  Secretary?