Admin_-_Mashaw_-_Spring_2008(3)
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Admin_-_Mashaw_-_Spring_2008(3)
I. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)ation must contain an intelligible principle to which the agency must conform (J.w, Hampton, Jr., & Co. (1928)); it must be ascertainable whether the agency has followed Congress’ instructions (Yakus V, United States (1944))Justifications: Separation of Powers, Rule of Law (Theodore Lowi - we don’t Admin_-_Mashaw_-_Spring_2008(3)want “toothless” statutes because that causes disrespect for law). Deliberative Decisionmaking. Preventing Congressional abdication of responsibility.Admin_-_Mashaw_-_Spring_2008(3)
Democracy and Electoral AccountabilityObjections: Institutional Advantages of Administrative Agency - flexibility, expertise, uniformity and predictaI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)hifting of policymaking authority to Presidential appointees, and Congress can still, by legislation, curb agency power; Difficult to Devise Precise Test for what this rule should beCases:(Historical Cases: Basically No Issue](exception) “The Postmaster Case": Congressional refusal to delegate autho Admin_-_Mashaw_-_Spring_2008(3)rity to Postmaster General to determine where post offices were going to be.Field V. Clark (1892): President can suspend favorable tariff treatment toAdmin_-_Mashaw_-_Spring_2008(3)
other nations based on notions of reciprocity because the authority delegated only allows him to make factual determinations that implement the CongrI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)the Act upon his determination that rates had not properly been equalized based on costs of production] because (1) it had laid down intelligible principle. Still, (2) Congress could not delegate legislative responsibility.(Great Depression “Sports” Exceptions]Panama Refining Co. V. Ryan (1935): NIR Admin_-_Mashaw_-_Spring_2008(3)A“hot oil provisions” [authorizing President to exclude from interstate commerce oil products “produced or withdrawn from storage in excess of the amoAdmin_-_Mashaw_-_Spring_2008(3)
unt permitted to be produced or withdrawn from storage by any state law or valid regulation”] violate delegation doctrine because (1) gave President nI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)- regulatory code hadn’t been officially publishedA.L.A, Schechter Poultry Corp, V, United States (1935): NIRA § 3 (permitting agency (on behalf of President) to issue codes of fair competition for particular industries if code “tended to effectuate" Act’s policy] violates delegation doctrine becaus Admin_-_Mashaw_-_Spring_2008(3)e (1) statute had failed to give1agency a clear policy directive and (2) it had procedural deficiencies, in particular no requirement that agency holdAdmin_-_Mashaw_-_Spring_2008(3)
trial-type hearings, or provide interested parties with notice and right to participate in decision, or right to judicial review(Return to Laxity!YakI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)nd equitable and ... effectuate the ... purposes of the Act] upheld as constitutional because (1) it had set down intelligible policy, as well as price boundaries. (2) Distinguishing NIRA policy directive in Schechter as overly broad.(The “Interpretive” Approach]Amalgamated Meal Cutters V. Cotuially Admin_-_Mashaw_-_Spring_2008(3) (D.c. Circuit 1971): Economic Stabilization Act (granting President power to stabilize wages and prices throughout nat’l economy] upheld as constitutAdmin_-_Mashaw_-_Spring_2008(3)
ional because (1) legislative history and nation’s experience under previous price control programs gave content to vague statutory language, entailinI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)riod of President’s authority, (3) procedural safeguards existed under APA, such as availability of judicial review and hope that agency would develop standards (though this was mistaken: the statute didn't require APA hearing process, nor did it (or APA) require adoption of rules, and only that wou Admin_-_Mashaw_-_Spring_2008(3)ld have occasioned APA’s notice and comment process), and (4) importance of President’s being able to curb inflationToubv V. United States (1991): 198Admin_-_Mashaw_-_Spring_2008(3)
4 Amendment to Controlled Substances Act (permitting AG to temporarily schedule a drug as a controlled substance if deemed an imminent hazard to publiI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)s and (2) its judicial review bar was properly interpreted only to apply to preenforcement challenges to scheduling orders, and didn’t preclude an attack on an order as a defense to prosecution.[Two Slightly Contrasting Modern Perspectives]Sun Ray Drive-In Dairy, Inc. V, Oregon Liquor Control Commis Admin_-_Mashaw_-_Spring_2008(3)sion (Oregon 1973): Administrative order [refusing to treat a convenience store as a “grocery store” eligible for liquor license] reversed and remandeAdmin_-_Mashaw_-_Spring_2008(3)
d to agency with directive to adopt general rules giving content to statutory standard because (1) statute provided no standards for issuance, thus noI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)itman v. American Trucking Associations, Inc. (2001): Clean Air Act [requiring EPA Administrator to promulgate national ambient air quality standards (NAAQS) for air pollutants, to be reviewed at 5-year intervals, based on (a) a level “requisite to protect the public health” with (b) an adequate mar Admin_-_Mashaw_-_Spring_2008(3)gin of safety] upheld as constitutional because (1) it provides intelligible principles for agency to follow because “requisite” means “sufficient butAdmin_-_Mashaw_-_Spring_2008(3)
not more than2necessary” and (2) by being substantially similar to Touby and .American Petroleum. BUT an agency can’t, with a regulation, cure a legiI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)hnquist-Burger Objections!Industrial Union Deplc AFL-CIO y. American Petroleum Inst (1980) (“Benzene Case”) In concurrence, Rehnquist would have held that OSHA contained an unconstitutional delegation I by directing Secretary ol Labor to issue rules requiring employers to protec I their workers “to Admin_-_Mashaw_-_Spring_2008(3)the extent feasible”], because (1) Congress had avoided addressing the circumstances in which employers could be allowed to take some risks of injutyAdmin_-_Mashaw_-_Spring_2008(3)
to workers because of the high costs of such measures, and (2) addressing such divisive issues could not unnecessarily be left to politically unresponI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)octrine is effectively a substantive due process doctrine: this is one reason Courts are so reluctant to engage it; they don't obviously know better than Congress'the agency here•Administrators who lack crisp standards are weak, not strong. Because the statute is so vague, they will face much litiga Admin_-_Mashaw_-_Spring_2008(3)tion. So they will avoid making rules and do everything ad-hoc and negotiated.•New Deal “Sports” Exceptions better explainable in terms of conservativAdmin_-_Mashaw_-_Spring_2008(3)
e politics of justices who made the decisions that! in terms of legal doctrine.•Avoidance canon also sneaks in to the decision in AMC V. Connally•InteI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delega Admin_-_Mashaw_-_Spring_2008(3)ndonment of an entire program, and prevents administrative flexibility•In AMC V, Connally, there was an executive order interpreting a statute. But in Sun-Ray, there was only a statute, and no written regulalion.’order of any sort.•American Trucking shows how the scope of power conferred on an agenc Admin_-_Mashaw_-_Spring_2008(3)y is a consideration for constitutionality of a delegation.•Agencies have incentives to adopt Riles, because COURS will generally give agencies more dAdmin_-_Mashaw_-_Spring_2008(3)
eference when they are applying their own rules than when they are acting wilhout having created a ruleI. Political Controls on AdministrationThe Delegation Doctrine (more of an “enablement" than a “control")Rule: To be permissible, a legislative delegaGọi ngay
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