Dalton V. Specter (Base Closing Commission)

ADMIN

Dalton v. Specter (base closing commission)

1. Congress wasn’t closing bases (Sen. would filibuster or sue) so Cong. created elaborate structure

involving DOD and base-closing commission

i. Reasons for commission

- DOD not independent like the Commission (has interest in keeping bases open)

-partisan politics – Pres. wants to close where can’t be affected in election

-Pres. controls Sec. of Defense whereas com. is ind. so limits Pres. control

ii. Congress and Pres. give some of power to com. b/c want to escape accountability

BUT here, lack of direct accountability is only way to get bases closed

2. No review of agency decision

i. Congress purposely eliminated review provision

ii. commission only recommending –Pres. and Cong. still make final decision

--Franklin v. Ma

(a) subordinate agency’s decision submitted to Pres. for review, is not “final”

(Pres. could revise agency’s action)

(b) Pres.’s actions not reviewable under APA because Pres. not agency; even though decision final

iii. judicial review must be available to det. whether Pres. has stat. authority for whatever action takes

UNLESS stat. or Const. commits decision to Pres.’ discretion

II. Constitutional Framework

A. Delegating “Leg.” authority

1. Sep. of powers

a. implicit in Const. – implicitly authorizes other agencies

i. I.8 (grants to Congress) – some one needs to do these things

-implicit that Pres. is overseeing others’ actions

b. How can sep. of powers be frustrated?

i. can delegate powers to another branch

ii. can take more power from another branch (aggrandizement)

iii. encroachment (limit authority of other branch by taking if for self)

2. Nondelegation Doctrine – to be const., need intelligible principle to conform to

a. Benzene Case (Ind. Union v. API)

i. OSHA stat. said to set as low as “feasible”

(a) OSHA looked at tech.-feasibility (bus. capable of adhering w/o going out of bus.?)

(b) said if no evid. that level safe, then don’t permit

*arbitrary choice – could’ve equally chosen rule saying if no evid. that unsafe  permit

ii. *maj. says Cong. didn’t make “essential choices” (what dec. should Cong. have made?)

(a) reads “feasible” as extra language – not binding

-could refer to tech. feasible or cost feasible

(b) not Const. – looks to other part of stat. that says “Any std. must be R nec.”

-before pass any std. need to make def. of “safe” and threshold det. if workplaces aren’t

safe (then know if std. “R nec.”)

*legal defect is there was no threshold def. of “safe”

--arg. doesn’t really make sense b/c must’ve decided place’s unsafe if making std.

iii. Concurrence - Rehnquist: Cong. passing buck to courts – court has to interpret stat.

(a) gave too much discretion to Sec. --- violates nondel. doctrine

(1) no intelligible principle to abide by

(2) no indep. authority over subject matter

(3) not nec. – not unR and imprac. to compel Cong. to prescribe detailed rules

(b) legal defect’s when Cong. passed the stat.

iv. Concurrence – Powell: reads feasible to req. cost feasibility (cost-benefit analysis)

b. Nondel. concerns

i. accountability – imp. choices of social policy are made by Congress

ii. want govt. actors to act by some guidelines

iii. *want std. by which to measure / check govt. action (ct. needs something to review w/)

c. Loving – “lim. on del. do not apply where entity exercising the delegated authority itself

possesses indep. authority over the subject matter”

d. Mistretta (sentencing commission)

i. Congress creates com. in jud. branch w/ no jud. f(x) ---- it’s an ind. agency

-no branch has absolute control (its ind. from Pres. control)

ii. **Cong. must provide intelligible principle by which com. operates

(a) Cong. just needs to make the (an) imp. decision (intel. principle std. is a low barrier)

-*need absence of std. to be imperm.

(b) in det. what Cong. can do in seeking assistance from another branch, the extent and

char. of that assistance must be fixed acc. to common sense and the inherent nec. of the

govt. coordination”

iii. to be unC, agency must have power best perf. by another branch or del. must undermine

another branch’s integrity

iv. What if Cong. just gave jud. list of f(x) to consider? (instead of creating a commission)

-jud. already interprets laws

-cts. would still have discretion

-Cong. could pass another stat. if disagrees w/ guidelines (sentencing = law-making)

f. Whitman v. Amer. Trucking (CAA std.)

i. std. doesn’t define what means to protect people’s health BUT more spec. (than Benzene)

b/c delineates safety stat. (doesn’t use “to extent feasible”)

ii. here Cong. made fund. policy choice (not made in Benzene)  it’s a safety-based stat.

--there’s less wiggle-room than Mistretta –well w/in outer limits so no viol.

iii. issue whether Cong. can del. “leg.” power (Stevens says can and Scalia says can’t)

iv. Del. only unconst. when no std. to apply or when conferred auth. to reg. whole econ.

-have allowed intelligible std. of “in public interest”

g. Cong. can’t do everything (give away nothing) but can’t delegate 100% (then there’s no acc.)

i. Scalia: no obvious point along spectrum to draw line

ii. ct.s have drawn line up to 95%

--ok b/c agencies usually strictly abide by rules (laws)

--also, even if Cong. doesn’t pass spec. stat., Cong. has a # of means of making sure

agency acts appropriately, e.g. cutting off $

--Pres. also makes sure agency acts approp. and Pres. accountable to the voters

iii. (Due to above) ct. usually look at what Cong. is given away and not how much

B. Delegating “Judicial” Authority

1 Cong. has long held that it may w/hold parts of the Art. III jud. power from whatever lower cts it

does create

2. Commodity Futures Trading Commission v. Schor

-stat. says review dec. in Art. I ct.

a. 2 overlapping suits

i. investor sues broker in CFTC ct.

ii. broker counterclaims and files suit in fed. ct.

iii. then  CFTC ct. only

iv. broker wins so Schor sues saying agency had no authority to litigate

b. Ex. of how agency acts like:

i. leg.: creates rules of conduct – here, rule says agency has jur. over counterclaims

ii. Jud.: adj. claims

iii. Exec.: enforces rules (when widespread abuse)

*giving agency all 3 kinds of power  more convenient and efficient

(BUT sep. of powers intended to make things inconvenient . . . )

c. CFTC isn’t an Art. III ct. b/c no char. (no life tenure, etc.) so why ok to adj?

i. Art. III ct. still needed for CFTC to enforce order

ii. loser can still seek review in Art. III ct. and reviews are “de novo”

iii. ct. does not exercise “all ordinary powers of district courts”

**Art. III still plays large role

d. Crowell

i .agency adj. no dif. than when III ct relies on special master or magistrate

ii. makes distinction betw. public and private rights

(a) “public right” – rights betw. govt. and individual

--govt. doesn’t have to allow adj. in III ct. (can restrict adj. to art. I ct.)

--b/c govt. didn’t have to create right in first place

(b) “private right” – right of action ag. another individual

--usually heard in III ct.

--must be more careful when del. private rights to agency

(this case is an ex. of del. a private right to an agency adj.)

e. Maj.: in this case, agency can hear private right case b/c won’t undermine III too much

*as long as III ct. plays meaningful role and Art. I ct.  benefit to III, then permissible

--look at degree of jud. control saved to fed. courts, cong. purp. behind del., dem. need

for del., and lim. nature of del.

f. ct. polices reassignment of jud. power more stringently than del. of Cong. power

*if non-Art. III ct. doing hearings, then Art. III ct. must play meaningful role for hearings

to be const.

C. Delegating “Exec.” Authority

1. Cong. Oversight on Pres. Activities – 3 ways to limit

a. lim. on appt. powers / discretion

b. impose lim. while officials in office

c. impose lim. on removal

--lim. on appt. and removal affects Pres.’ ability to control

2. Appt.

a. 2 tiered system

i. major officials need advice / consent of Senate

ii. inferior – Congress decides who appoints : Pres., Cts. OR heads of dept.

b. vesting appt. of major officials in both branches increases accountability, serves as a check

c. Cong. can “bypass” Pres. when deciding who should appt. inf. off. b/c Pres. appt. dept. heads

--so not really bypassing Pres.

3. Removal

a. Myers (postmaster general) –power to limit incident to power to appoint

i. SC says Pres. has exclusive power to remove superior officials

(a) needs so can “execute faithfully”

(b) needs to have power to make sure appointees follow him

ii. Cong. can lim. removal power over inf. officials (just as can lim. appt. power)

--BUT Cong. can’t remove Pres.’ power (Cong. can’t remove exec. officers itself)

-“Cong. can encroach by lim. but can’t remove Pres. and keep power for self”

b. Morrison (Ind. Counsel)

i. overrules Humphrey **

ii. case has appt. and removal issues

(a) Appt: if A.G. thinks person acting illegally, can req. jud. to appt. Ind. counsel

(b) removal: lim. to cx

iii. Appt.

(a) Cl. doesn’t address interbranch appt.

here, not a prob. though b/c ct. always had power to appoint special investigator/pros.

(b) only imperm. if interbranch appt “incongruous”

iv. How delineate betw. principal and inferior officers? (really just use intuition)

(a) resp. (substance of job)

(b) subordinate?

(d) tenure

(e) discretion (how much given)

v. Removal

(a) can only limit to extent won’t interfere w/ Pres’ ability to faithfully execute laws

(central to f(x) of Exec.)

(b) Cx – Pres. disagreeing w/ person is not suff. for removal

--very little case law on def. of “cause”

--even if Pres. had power, have checks: pol’t backlash and accountable to voters

vi. **** Cong. can limit Pres’ removal power

--Pres. needs some control over agency officials

--can give at appt. or removal (discretion at one end may justify limit on other end)

D. Different Guises of Leg. Control of Agencies

1. Controlling Policy through veto, directive, budget

a. Chadha

i. AG could suspend deportation BUT 1 house could override suspension w/ resolution

-Cong. wanted to reserve power to undo AG’s decision

ii. *SC says **Leg. veto are unconst. b/c they circumvent leg. process in Const.

(no presentment or bicam.)

(a) leg. veto allows Cong. to evade Pres.----when Cong. making imp. decisions, can’t cut

out Pres.

(b) if Cong. doesn’t like the way Pres’ exercising del., needs 2/3 maj. to override veto.

iii. “Leg. Acts” req. that act fulfill presentment and bicam. clauses

(a) Act is Leg. when it alters the legal rights, duties, and rel. of people outside the leg. br.

--has a leg. char. and effect

--to det. look at who would be doing act if agency didn’t exist-- leg.?

(b) rules by exec. agencies have force /effect of law

--the rules are a leg. power but are ok so long as following intelligible principle

*Maj. presumes the branch acts w/in its power

b. Bowsher (comptroller general)

i. if had del. to Pres., would be fine b/c have intelligible principle

ii. here Cong. del. to a leg. officer though

--trying to control Exec. f(x) acc. the maj.

--Stevens also thinks there’s a Chadha problem—trying to cut the Pres. out

iii. *Cong. can del. boundless discretion to a non-leg. agency but can’t give to leg.

-giving power to self  concern b/c bypassing Pres.

iv. “Cong. can’t have a direct or active role in the supervision of executive officers”

-if officer is removable by Cong., can only have leg. powers

E. Intersection of the Sep. of Powers Doctrines

1. Clinton (line item veto)

a. broad del. – really an intelligible principle?

b. transfers true powers of leg. which is a real problem

c. Dissent:

i. not really a veto--it's just a decision on how to execute the law

ii. Pres. has discretion to decline to spend on a provision--this is an extension to that

iii. no nondel. problem b/c only an exec. role-not getting any lawmaking power

d. 3 questions to det. if something violates sep. of powers

*Has Congress given Pres. the wrong kind of power? (i.e. non-exec. power)

*Has Congress given Pres. power to encroach upon Cong's own const. reserved territory?

*Has Congress given the Pres. too much power, violating the doctrine of nondelegation?

III. Exercise of Admin. Power

A. Fundamental Procedural Categories

1. Procedural frameworks – Const.

a. Londoner

i. Background

(a) taxed street for repavement

(b) some residents sued (minority didn’t want)

(d) Bd. never responded and held no hearing

ii. *need opp. to appear and state case

(a) don’t have to have trial but must allow appearance

(b) may be written complaints insuff. in this case b/c lack educ., etc.

(d) can respond to Bd.’s arg. if in person

iii. **property owners have to get a hearing – get more than mere written complaint

“where state leg. commits tax power to subordinate body, due process req. that at some

stage before tax is fixed, there is a hearing

b. Bi-Metallic

i. taxed whole city (in Londoner only taxed block)

ii. *not entitled to hearing (below are dist. from L.)

(a) huge number of people affected

(b) not exceptionally affected

iii. govt. won’t work if hearing req. for every decision

-even if pl. had ind. ground, may still not be req. to have hearing

-it’s arguable that could satisfy all 3 “dif.” and still not get hearing so what’s real dif.?

*maybe it’s that the numbers must be real small and small scope

--if big scope or large numbers then people have vote whereas sm. # don’t have vote

power

iv. “even in a RM, when an agency is making a “quasi jud.” det. by which a very sm. number of people are “exceptionally affected,” each upon individual grounds, in some circ.,

add’l procedures may be req. to afford the aggrieved individuals due process”

c. L v. B.

i nature of action

(a) L. was more like adj. action so get same rights (if Leg. goes too far, get rights like at

trial)

(b) B. was more like leg. action so don’t have to get all rights

*cases provide little guidance on where to draw the line though

ii. who’s making decision

(a) L. says only applies b/c state del. decision

--when state del., then don’t have recourse of voting out of power

--when state itself makes tax hike, know people’s grievances are taken into acct.

--w/ local board, however, bd. may not take grievance into acct.

--do act if majority wants and pay no heed to minority

d. whether hearing is req. depends on:

i. who’s making the decision

ii. who’s affected by the decision

iii. unelected officials making decision usually req. more procedural protection

APA gives more protection BUT only affects fed. agencies

2. How dist. betw. leg. and jud.? (thereby det. how much protection to give?)

a. leg

i. many affected

ii. facts generalized

iii. prospective

iv. making policy

b. jud.

i. few affected

ii. facts particularized (decision turns on the facts)

iii. retrospective

iv. applying policy

c. also look at need for accuracy (adj.) v. consistency (leg.), efficiency, and acceptability

3. APA

a. General info.

i. stat. framework for what agencies can do (Const. gives min. protection and APA ups that)

ii. imposes limits on how can act

iii. codifies certain powers for agencies

iv. creates 4 categories of agency action: informal adj., inf. RM, Formal RM, F. Adj.

v. 500s reg. powers of agencies

vi. 700s govern jud. review

b. 500s

i. RM v. Adj.

(a) adj. def. in 551(7) and subdef. in 551(6)

--defined as including anything “not rulemaking”  it’s a residual category

--includes orders and licensing

(b) RM defined in 551(5) and then 551(4)

--defined specifically -- “designed to implement, interpret or prescribe law or policy”

--RM says “gen. OR part. application”

(d) no distinction betw. making / applying policy

--can use RM to interpret or prescribe

(e) Prospective v. Retr. is distinction

--def. of rule says “and future affect”

--BUT can’t be only distinction—would make too much RM

(f) * use common sense—don’t rely solely on stat. *

*Det. by Stat. and Legal Culture

ii. 553 – RM

(a) in subsect.(b)—must give general notice unless can give actual notice to affected parties

 can make rule that only applies to a couple of people

(b) subsect. (c),

(1) must give opp. to part. / comment

(2) distinguishes betw. RM “on record” and off record

--“on record” governed by 556 and 557 (formal)

--RM doesn’t have to be “on record”

inf. is default method which doesn’t req. that rule be based on presented evid.

(d) APA req. more than due process

-due process doesn’t req. comment, notice, or a statement.

iii. 554 –Formal ADJ

(a) formal Adj.  556 and 557

(1) F. Adj. is default method

(2) when deciding if formal/inf., look at organic stat. – will detail what’s “on record”

(b) informal

(1) look at organic stat.

(2) APA doesn’t really address, look at 555 and Const. (due process)

iv. 556 – details what specific trial type procedures get during formal proceeding

-can restrict hearings to written comment

v. 557 – what happens after ALJ decision made

4. Vermont Yankee

a. **in inf. RM, Ct can only req. 3 things detailed in 553 (notice, comment, and statement)

b. Holding: Agency only has to comply w/ APA std. (that’s the max. std. ct. can impose)

UNLESS

i. “extremely compelling circ.” or

ii. “const. constraints” or

iii. if agency’s actions as whole raise bar or

iv. another stat. or agency rules place higher req. on agency procedures

*to req. agency to do more, ct. must point to some text (can’t do on own)

c. distinction betw. F and Inf. very imp.

--here, agency was using informal RM, so only judge on APA std.—not even on record