Admin Outline

1Introduction

1.1.1.1Dalton v. Specter (US 1994, p. 1) Renquist

2Place of Agencies in Government

2.1Introduction

2.1.1Delegation Doctrine and Separation of Powers

2.1.1.1Mistretta v. U.S. (US 1989, p. 52) Blackmun

2.2Agencies Exercising Legislative Authority

2.2.1.1Industrial Union Department, AFL-CIO v. Amercian Petroleum Institute (US 1980, p. 69) Stevens (“The Benzene Case”)

2.2.1.2South Dakota v. US Dept. of Interior (8th Cir. 1995 vacated by SCt, SUP p. 4)

2.2.1.3Loving v. U.S (US 1996, SUP p. 4)

2.2.1.4Whitman v. American Trucking Associations, Inc. (US 2001, Handout p. 1) Scalia

2.3History of Delegation Doctrine, pp. 82-94

2.3.1Triggering Mechanisms

2.3.1.1Brig Aroura (1815)

2.3.1.2Field v. Clark

2.3.2Filling in Details

2.3.2.1U.S. v. Grimaud (1911)

2.3.3Intelligible Principle

2.3.3.1J.W. Hampton, Jr. & Co. v. U.S. (1928)

2.3.4Striking Down New Deal Delegations

2.3.4.1Panama Refining Co. v. Ryan (1935)

2.3.4.2A.L.A. Schechter Poultry Corp. v. U.S. (1935)

2.3.4.3Carter v. Carter Coal

2.3.5Switch in Time to Save Nine

2.3.5.1Yakus v. U.S. (1944)

2.3.5.2Fahey v. Mallonee (1947)

2.3.6Construction to Save Statute

2.3.6.1Kent v. Dulles (1958)

2.3.6.2Touby (1991)

2.3.6.3South Dakota v. Dept of Interior (

2.3.7Nature of Function

2.3.7.1Loving v. US (1996)

2.3.7.2Dalton v. Specter

2.4Delegation in the Literature, pp. 94-102

2.5Agencies Exercising Judicial Authority

2.5.1.1Crowell v. Benson (US 1932, p. 117)

2.5.2Public Rights v. Private Rights

2.5.2.1Commodity Futures Trading Commission v. Schor (US 1986, p. 120) O’Connor

2.5.3Right to a Jury

2.5.3.1Atlas Roofing v. Occupational Safety and Health Review Comm (US 1997, p. 127)

2.5.3.2Austin v. Shalala (5th Cir. 1993, p. 129)

2.5.3.3Northern Pipeline Construction Co, v. Marathon Pipe Line Co. (US 1982, p. 130)

2.5.3.4Thomas v. Union Carbide Agricultural Products Co. (US 1985, p. 132)

2.5.3.5Granfinanciera v. Paul C. Nordberg (US 1989, p. 133)

2.6Agencies Exercising Executive Authority

2.6.1.1Morrison v. Olson (US 1988, p. 171)

2.7Legislative Control of Agencies

2.7.1.1Bowher v. Synar (US 1986, p. 146)

2.7.1.2Buckley v. Valeo (US 1976, p. 157)

2.7.1.3Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise (US 1991, p. 159)

2.7.1.4INS v. Chada (US 1983, p. 160)

2.8Line-Item Veto

2.8.1.1Clinton v. City of New York (US 1998, SUP p. 7)

2.9Recap – 3 SOP Problems in Administrative State

3What Agencies Do

3.1Fundamental Procedural Categories

3.1.1Constitution

3.1.1.1Londoner v. Denver (US 1908, p. 226)

3.1.1.2Bi-Metallic Investment Co. v. State Board of Equalization of Colorodo (US 1915, p. 230)

3.1.2Introduction to APA

3.1.2.1Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council (US 1978, p. 243)

3.1.2.2PBGC v. LTV (US 1990, p. 253)

3.2Formal Adjudication

3.2.1Requirements of Formal Adjudication

3.2.2Investigation

3.2.2.1FTC v. Cement Institute (US 1948, p. 257)

3.2.2.2Director, Office of Workers Comp v. Greenwich Collieries (US 1994, p. 278)

3.2.2.3Armstrong v. Commodity Futures Trading Commission (3rd Cir 1993, p. 286)

3.3Informal Rulemaking

3.3.1Types of Rulemaking Proceedings

3.3.2Notice

3.3.2.1AMA v. US (7th Cir 1989, p. 296)

3.3.2.2National Black Media Coalition v. FCC (2nd Cir 1986, p. 299)

3.3.3Opportunity to Participate

3.3.3.1US v. Nova Scotia Food Products (2nd Cir 1977, p. 315)

3.3.4Statement of basis and purpose

3.3.4.1Independent US Tanker Owners Committee v. Dole (DC Cir 1987, p. 330)

3.3.5Review

3.4Formal Rulemaking

3.4.1Possibility of more formal rulemaking

3.4.1.1US v. Florida East Coast Railway (US 1973, p. 339)

3.4.2Possibility of less formal adjudicatory procedures

3.4.2.1Seacoast Anti-Pollution League v. Costle (1st Cir 1978, p. 361)

3.5Informal Adjudication

3.5.1.1Chemical Waste Management v. EPA (DC Cir 1989, p. 368)

3.5.1.2King v. US (7th Cir 1974, p. 377)

3.5.1.3Independent US Tanker Owners Committee v. Lewis (DC Cir 1982, p. 379)

3.6Yet –more-informal Rulemaking

3.6.1Introduction

3.6.2Exceptions for Form

3.6.2.1Pacific Gas & Electric Co. v. Federal Power Commission (DC Cir 1974, p. 385)

3.6.2.2American Mining Congress v. Mine Safety & Health Administration (DC Cir 1993, p. 390)

3.6.2.3Panhandle Producers & Royalty Owners Ass’n v. Economic Regulatory Admin (5th Cir 1988, p. 391)

3.6.2.4Community Nutrition Institute v. Young (DC Cir 1987, p. 392)

3.6.2.5Lincoln v. Vigil ( US 1993)

3.6.2.6Hoctor v. Dept. Of Agriculture (7th Cir. 1996, SUP p. 45)

3.7Choice of Policymaking Mode

3.7.1Introduction

3.7.1.1SEC v. Chenery (US 1947, p. 418)

3.7.1.2Bell Aerospace Co. v. National Labor Relations Board (2nd Cir 1873, p. 426)

3.7.1.3NLRB v. Bell Aerospace Co. (US 1974, p. 429)

3.8Private Parties and the shape of the administrative process

3.8.1Introduction

3.8.1.1Office of Communication of the United Church of Christ v. FCC (DC Cir 1966, p. 465)

3.8.2Failure to enforce

3.8.2.1Heckler v. Chaney (US 1985, p. 477)

3.8.3Failure to institute rulemaking procedure

3.8.3.1Farmworker Justice Fund v. Brock (DC Cir 1987, p. 488)

3.9Recap

3.9.1Right of parties to participate

4Judicial Review

4.1Introduction

4.1.1APA

4.2Review of Factual Determinations (Substantive Review)

4.2.1Fact v. Law

4.2.2Fact finding in an on-the-record hearing

4.2.2.1Universal Camera Corp v. NLRB (US 1951, p 524)

4.2.2.2Allentown Mack Sales and Service v. NLRB (US 1998, SUP p. 67)

4.2.3Recap of judicial review of fact-finding in formal proceedings

4.2.4Fact-fining in informal proceedings

4.2.4.1ADAPSO v. Board of Governors (DC Cir 1984, p. 542)

4.2.4.2Industrial Union Dept., AFL-CIO v. Hodgson (Cd Cir 1974, p. 547)

4.2.5Constitutional / Jurisdictional Facts?

4.3Beyond the Facts

4.3.1Old Approach

4.3.1.1NLRB v. Hearst Publications (US 1944, p. 557)

4.3.1.2Packard Motor Car Co. v. NLRB (US 1947, p. 563)

4.3.1.3Skidmore v. Swift (US 1944, p. 564)

4.3.1.4Addison v. Holly Hill Fruit Products, Inc. (US 1944, p. 568)

4.3.2Old Approach Recap

4.3.3New Approach

4.3.3.1Citizens to Preserve Overton Park v. Volpe (US 1971, p. 571)

4.3.3.2Camp v. Pitts (US 1973, p. 579)

4.3.3.3San Luis Obispo Mothers for Peace v. NRC (Dc Cir 1984)

4.3.3.4Pension Benefit Guaranty Corp. v. LTV Corp. (US 1990, p. 582)

4.3.3.5National Lime Association v. EPA (DC Cir 1980, p. 589)

4.3.3.6Vermont Yankee Nuclear Power v. NRDC (US 1978, p. 584)

4.3.4Trying to decide if what agency did in its ambit was reasonable

4.3.4.1Motor Vehicles Manufacturers of US v. State Farm Mutual (US 1983, p. 591)

4.3.4.2Chevron USA v. NRDC (US 1984, p. 614)

4.3.5The Wisdom of Chevron –

4.3.5.1Rust v. Sullivan (US 1991, p. 630)

4.3.5.2INS v. Cardoza-Fonseca (US 1987, pp. 621, 634)

4.3.6How strong is Step 1?

4.3.6.1MCI v. AT&T (US 1994, p. 637)

4.3.6.2Brown & Williamson Tobacco Co. (????)

4.3.7Chevron recap

4.3.8Integrating Chevron and State Farm

4.3.8.1Arent v. Shalala (DC Cir 1995, SUP p. 93)

4.4Old or New?

4.4.1.1Christiensen v. Harris County (US 2000, handout p. 5)

4.4.1.2US v. Mead Corp. (US 2001, handout p. 11)

5Access to Judicial Review

5.1Standing

5.1.1Article III Standing

5.1.1.1Allen v. Wright (US 1984, p. 1121)

5.1.1.2ADAPSO v. Camp (US 1970, p. 1135)

5.1.2Non-economic standing

5.1.2.1Sierra Club v. Morton (US 1972, p. 1139)

5.1.2.2Lujan v. Defenders of Wildlife (US 1992, p. 1148)

5.1.2.3Steel Co. v. Citizens for a Better Environment (US 1998, p. SUP 200)

5.1.3Prudential Standing

5.1.3.1Control Data Corp v. Baldridge (DC Cir 1981, p. 1166)

5.1.3.2Clarke v. Securities Industry Association (US 1987, p. 1167)

5.1.3.3Air Courier Conference of America v. American Postal Workers Union, AFL-CIO (US 1991, p. 1169)

5.1.3.4Bennett v. Spear (US, 1997, p. SUP 196)

5.2Reviewability and Timing

5.2.1Ripeness

5.2.1.1Abbott Labs v. Gardner (US 1967, p. 1185)

5.2.1.2Toilet Goods Association v. Gardner (US 1967, p. 1189)

5.2.1.3Ticor Title Insurance Co. v. FTC (DC Cir 1987)

6Constitutional Due Process Review

6.1A Shift from the Old Learning

6.1.1.1Cafeteria & Restaurant Workers Union v. McElroy (US 1961, p. 718)

6.1.1.2Goldberg v. Kelly (US 1970, p. 722)

6.2New Learning

6.2.1When Due Process Kicks In

6.2.1.1Board of Regents of State Colleges v. Roth (US 1972, p. 739)

6.2.1.2Perry v. Sindermann (US 1972, p. 745)

6.2.1.3Mathews v. Eldridge ( US 1976, p. 766)

6.2.2Relationship between Property and Procedures

6.2.2.1Cleveland Board of Education v. Loudermill (US 1985, p. 798)

6.2.3Avenue to Respond

6.2.3.1Brock v. Roadway Express Inc ( US 1987, p. 822)

1

Admin Outline

Administrative Law

Professor Molot – Fall 2002

1Introduction

Agencies:

  • Created by Congress
  • Supervised by Executive

2 kinds:

  • Executive – President appoints head, can “clean house”
  • Independent – FCC, for example.
  • Power sharing by both parties
  • Not as much influence by President

Congress exerts continued influence in 2 ways:

  • Formal – budget and appointments, oversight
  • Informal – via members

Influenced by Courts –

Review of actions based on 3 sources:

  • APA – Administrative Procedures Act (default rule, gives courts basis for review)
  • Organic statute – that creates specific agency, etc.
  • Constitution –
1.1.1.1Dalton v. Specter (US 1994, p. 1) Renquist

Π = people who don’t want bases closed. Δ is Secretary of Defense.

Procedure from statute: Defense Base Closure and Realignment Act of 1990 says Secretary must prepare closure and realignment recommendations, based on selection criteria he establishes after notice and an opportunity for public comment. Recommendations go to Committee, which must hold hearings and publish a report. Submits report to President, who must decide within 2 weeks, whether to approve or disapprove Commission’s recommendations in their entirety. If President approves, must submit to Congress. If Congress doesn’t act within 45 days to disapprove, Secretary must close bases.

Claims: 1) Δ violated substantive and procedural requirements of Act. 2) Commission’s recommendations were made without following procedures (claims Sec. Prevented testimony, withheld docs, held closed meetings, » President accepted procedurally flawed recommendations.

I: Is judicial review available?

H: No.

Judicial review is not available when the statute commits the decision to the discretion of the President. Before Presidential approval, is not “final” for purposes of APA. After Presidential approval, order is a product of unreviewable Presidential discretion.

(Part of President’s sovereign prerogative, even though agency helps.)

President’s actions are not reviewable under APA (not an agency), but are reviewable for unconstitutionality.

Renquist looks at Constitution.

Souter looks at statute. Thinks Claim I did not have to be reached because Congress did not intend judicial review because of 1) tight deadlines 2) “all or nothing” nature of the statute. History of frustration in timely base closings.

How courts treat decisions of agencies under APA is different from how they treat decisions by the President.

Executive decision – day to day administration. Until and agency takes an action that affects a constituent, there is not much oversight within the agency.

Rulemaking –Informal notice & comment rulemaking via APA §553

Adjudication – Can make law via cases, or just enforce laws mad through rulemanking.

2Place of Agencies in Government

2.1Introduction

Place of agencies in Separation of Powers-

  • Constitution does not provide for agencies

Article I, § 1 – all legislative powers vested in Congress

§ 8 – Necessary and Proper – leaves the shaping of government in Congress’s hands

Article II – executive power vested in the President

  • Can’t do it all
  • “Take care” suggests other departments

Article III – judicial power vested in courts

2.1.1Delegation Doctrine and Separation of Powers

2.1.1.1Mistretta v. U.S. (US 1989, p. 52) Blackmun

(Functionalist view – Constitution is flexible. Blending of powers is permissible.)

U.S. Sentencing Commission created by Congress (narrows ability of courts to assess penalties.) Member appointed by President, approved by Senate. Removal allowed for good cause. Mistretta claims Commission is unconstitutional because: 1) violates SOP 2) Congress delegated too much power to the Commission.

I: Is Commission unconstitutional under nondelegation doctrine or SOP?

H: No.

Delegation: Congress may obtain assistance of coordinate branches. So long as Congress shall lay down and “intelligible principle” to which the agency is directed to conform, legislation act not a forbidden delegation of legislative power.

Court will strike down only if there is an absence of standards for the guidance of the agency such that it would be impossible to ascertain whether the will of Congress has been obeyed.

SOP: Aggrandizement/Encroachment concerns. Location in judicial branch OK as long as no exercise of judicial power (encroachment), and does not increase judiciary’s authority (aggrandizement). Composition of judges and non-judges OK – extrajudicial service. No exercise of judicial power. Presidential control – removal power only for good cause prevents President from exercising “coercive influence.”

Scalia dissent – formalist view (treats SPO as a rigid design). No such thing as a legislative delegation.

2 types of judicial review –

  • for violation of Constitution’s structural provisions – a statute purporting to confer the power is invalid. (Mistretta)
  • for legal authority – is the agency acting beyond conferred authority (ultra-vires)? (

Constitutional Limits – Original delegation from “we the people” to Congress. Subdelegation from Congress to agencies/other branches.

2 strands of delegation doctrine:

  • Legality – whether Congress has created enough structure to make it possible to assess and/or control the legality of the delegate’s conduct.
  • Political accountability – the extent to which the legislature has created other legislators who are not directly responsible to the people.

Professor Rebecca Brown – Judicial opinions addressing SOP over the past decade tend to place primary emphasis not on the protection of individual liberties, but on the advancement of the institutional interests of the branches themselves.

2.2Agencies Exercising Legislative Authority

Has Congress exceeded limit in giving away its own authority?

2.2.1.1Industrial Union Department, AFL-CIO v. Amercian Petroleum Institute (US 1980, p. 69) Stevens (“The Benzene Case”)

Secretary of Labor promulgates standard under OSHA to regulate occupational exposure to benzene.

I: Did Secretary of Labor appropriately find that benzene poses a significant health risk to the environment and that 1 ppm standard is “reasonably necessary or appropriate to provide safe or healthful employment and places of employment” within the meaning of OSHA?

H: No. §3(8) applies to all permanent standards promulgated under the Act.

Secretary must make threshold (§3(8) determination that provision is reasonably necessary and appropriate to remedy a significant risk of material health impairment before going to §6(b)(5) (shall set the standard with most adequately assure, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health…)

Interprets “feasible” as meaning technologically feasible and would not shut down companies.

Δ must support its conclusion with the “best available evidence.” Here, a series of assumptions. No proof of safe level, or that place of employment is unsafe. Safe does not mean risk-free!

Powell – want economic effects taken into consideration via cost/benefit analysis (different way of measureing feasibility than majority.)

Renquist – “Feasible”, what does it mean? Violates delegation doctrine because it is a standardless delegation. “Feasibility” requirement renders judicial review impossible. Whether diminishing returns should play a role is a matter of legislative policy.

Marshall – Statutory language and legislative intent are sufficiently definite. Non-delegation doctrine does not apply. “Feasible” means if it can be done.

Important to compare Benzene with Whitman!

2.2.1.2South Dakota v. US Dept. of Interior (8th Cir. 1995 vacated by SCt, SUP p. 4)

8th Cir invoked delegation doctrine in response to US’s position that secretarial decision was unreviewable. S. Ct. found there was “law to apply” and remanded. Scalia, O’Connor and Thomas dissent – “Availability of judicial review has nothing to do with the constitutionality of the delegation.” Remand only gave government another chance to try out a new theory.

2.2.1.3Loving v. U.S (US 1996, SUP p. 4)

Delegation challenge to an executive order defining the procedures that must be followed by a court martial when imposing the death penalty. Here delegation lies within the traditional authority of the President.

Same limitations on delegation do not apply where the entity exercising the delegated authority itself possesses independent authority over the subject matter.

2.2.1.4Whitman v. American Trucking Associations, Inc. (US 2001, Handout p. 1) Scalia

EPA revised national ambient air quality standards for particulate matter and ozone.

I: 1) whether §109(b)(1) of the Clean Air Act delegates legislative power to the EPA.

2) whether Administrator may consider costs of implementation in setting standards.

H: 1) No. Limits on EPA’s discretion, scope of discretion well within Ryan and Schechter Poultry.

2) No. Text does not permit EPA to consider costs.

Differs from Benzene:

  • Statute here does not mention ‘feasibility.’
  • In Benzene, Court construed the statute, not the agency. (D.C. Cir says agency can construe statute to overcome an unlawful delegation of legislative power. No! Agency’s voluntary self-denial has not bearing upon the answer.)

Here, Scalia asserts idea from Mistretta dissent that there is no such thing as a legislative delegation. Delegation OK if it goes to judiciary or executive, but not if it goes somewhere else (4th branch?)

Thomas – Constitution does not speak of “intelligible principle”

Stevens, Souter – Court should acknowledge that it is a delegation of legislative power that is OK because of limits on it. (This is the way the court has indeed looked at it for the past 70 years.)

2.3History of Delegation Doctrine, pp. 82-94

2.3.1Triggering Mechanisms

2.3.1.1Brig Aroura (1815)

Gave President the power to decide if other countries are respecting trade agreements. Either-or scenerio, either triggered or not.

2.3.1.2Field v. Clark

President can implement retaliatory tariff schedule and suspend more favorable currently in place. Was this transferring tariff-making power to the President? No. President was simply executing Act of Congress.

2.3.2Filling in Details

2.3.2.1U.S. v. Grimaud (1911)

Act of Congress authorized DOA to make regulations protecting forests. Statute made violations punishable by fine. Grimaud argued that Act permitted DOA to make criminal laws. No, just filling up the details.

“Power to fill up the details.” Goes beyond triggering mechanism to allow decisions about implementation.

2.3.3Intelligible Principle

2.3.3.1J.W. Hampton, Jr. & Co. v. U.S. (1928)

President given sweeping authority to regulate foreign trade. ICC creates tariffs, which President chooses to implement as conditions abroad change. Justice Taft refers to “common sense and the inherent necessities of the governmental considereation.” Intelligible principle test.

2.3.4Striking Down New Deal Delegations

2.3.4.1Panama Refining Co. v. Ryan (1935)

Congress leaves matter of deciding whether or not to close interstate commerce to certain oil products. No policy, no rule laid down, no standard for deciding.

Cardozo dissents.

2.3.4.2A.L.A. Schechter Poultry Corp. v. U.S. (1935)

Broad delegation to President to authorize codes of fair competition drafted by trade associations. Approval process operated in secret and was not closely supervised.

Cardozo concurs. (A roving commission – power already given to FTC, President can now do anything Congress can do to regulate industry.)

2.3.4.3Carter v. Carter Coal

See FN 9, p. 88 Delegation to private persons outside of government (Coal Code).

2.3.5Switch in Time to Save Nine

2.3.5.1Yakus v. U.S. (1944)

Court relaxes delegation doctrine in response to threat of court-packing. Now, only concern of courts is whether the definition sufficiently marks the field in which the Administrator is to act. Only if absence of standards would make it impossible to ascertain whether the will of Congress has been obeyed will the court override Congress’s choice.

2.3.5.2Fahey v. Mallonee (1947)

Standardless delegation of sweeping authority to bank regulators upheld because effective control arose outside the statute. Possibility of effective control becomes the question.

2.3.6Construction to Save Statute

2.3.6.1Kent v. Dulles (1958)

Secretary of State given discretion to refuse passports (denied to Communists). Unauthorized.

“Clear Statement Rule” – court did not see clearly stated that statute gave Sec. Of State authority to impinge on Constitutional rights. Court will not allow the executive branch to undertake constitutionally troublesome acts pursuant to an open-ended delegation of authority.

2.3.6.2Touby (1991)

A.G. given power to classify drugs. Court thought OK because of concession giving Δ right to challenge classification.

2.3.6.3South Dakota v. Dept of Interior (

Similar to Touby. Power given to Dept. of Interior, decision unreviewable. Here, Court did not say was OK, but remanded to agency to solve delegation problems.

[Despite Saclia’s dissent in Whitman saying agency has never been allowed to construe statute to avoid delegation problems, it happens! (Touby and South Dakota.)]

2.3.7Nature of Function

Amount of discretion allowed can vary according to the nature of the function delegated.

2.3.7.1Loving v. US (1996)

Delegation was into area where President already had control over subject matter.

2.3.7.2Dalton v. Specter

President had discretion to change Commission’s recommendation. Agency action not final, no review under APA. President’s action within discretion, can only be reviewed for constitutionality.

2.4Delegation in the Literature, pp. 94-102

Scale from 0 – 100. Line is pretty close to 0.

0 = Congress decides (legality and political accountability concerns)

100 = no delegation at all (not reaslistic)

3 policy concerns:

1) text of Constitution

2) political accountability (is Congress hiding?)

3) legality –

Why aren’t courts willing to put more teeth into non-delegation doctrine?

  • Expertise?
  • Recognition that Congress can’t do it all?
  • Difficulty in drawing line!
  • Unmanageable (how to weigh expertise, resources, political accountability?) pp. 97-98
  • Courts lack competence – Politicians are better suited to weight these complicated political factors.

Effect of Non-delegation doctrine-

  • Asks court to construe statute to prevent Congress from giving away the farm.
  • Leads the agency to anticipate question and construe statute accordingly.

2.5Agencies Exercising Judicial Authority

Has Congress subtracted authority from the judiciary?

Constitutional issues –

  • Article III assigns judicial authority to S. Ct. and inferior courts.
  • Judges have life tenure, fixed salaries, and are appointed by the President, confirmed by the Senate. ALJs don’t meet this requirement).
  • Judicial power extend to “all cases arising under federal law.”

Delegation to resolve disputes started with Workman’s Comp. Wanted to get around common law.

2.5.1.1Crowell v. Benson (US 1932, p. 117)

Citizen v. citizen cases involving workman’s comp for maritime employment.

Decision reviewable by district court: de novo for law, and sufficiency of evidence for facts.

Court characterized administrative agency as an adjunct to the court, and hence within the Article III structure. (Adjunct theory – as long as enough power is kept in the court, OK. Facts can be found elsewhere.)

Brandeis dissent – requirement of judicial involvement comes from due process requirement, not from a prohibition on diminishing federal court jurisdiction.

2.5.2Public Rights v. Private Rights

(from Murray’s Lessee v. Hoboken Land and Improvement Company, p. 118)

Public rights –

  • involve disputes between the government and its citizens
  • Congress can freely choose to withhold from the courts entirely
  • No SOP issue – agency’s function may be judicial, but is not regarded as an exercise of Article III judicial power, so it is not problematic that the function is not placed in a court
  • Congress may decide the issue itself, may delegate the decision to the executive, or may commit it to judicial tribunals. (Due process is a check on too much of this.)

Private rights –