Professor Siegel Spring 2003

I. Intro/Overview

What are administrative agencies?

Administrative agencies are Congressionally created entities who receive a lawmaking charge from Congress – their functions are diffuse, ranging from law making (legislative) to law enforcing (executive) to legal adjudication (judicial)

Morrison

To what extent may Congress limit the executive’s power to control administrative heads (through limitations on removal power)?

-Congress may restrict Presidential removal power insofar as such restrictions do not impede the President in the performance of his constitutional duty (upholding for cause termination provision for independent counsel)

  • Pres. constitutional duty= “faithfully execute the laws”
  • “Good cause” removal sufficiently empowers the Pres. to monitor the IC’s “faithful execution” of the laws

To what extent may Congress interfere in the Pres. control of administrative agencies consistent w/ the separation of powers?

-Removal provision neither constitutes

  • Congressional retention of power nor
  • Undermines Executive from accomplishing constitutionally assigned functions

NB The Morrison decision took a practical approach to the specific role of the IC w/in the political system. Greater Pres. power over the IC would strip her of the ability to monitor political officials w/in the administration. If Congress attempted to limit removal power over officials whose “executive power” was more “central to the functioning” of the executive (Attorney General/Solicitor General etc.), the Ct would rule otherwise.

What do Administrative Agencies do?

  1. Rulemaking – agency process for formulating, amending or repealing a rule (551)

Storer (1956) – administrative agency can “adjudicate” by “rule-making” - agency rule to bar licenses to Broadcasters who own 5 or more stations properly fulfills agency responsibility to provide a “hearing” for license denials

Texaco – “statutory RQT for a hearing does not preclude administrative agencies from particularizing statutory standards through rulemaking process” (and barring “an actual hearing”)

Why can an administrative “rule-make” in what appears to be a deviation from their responsibility to provide an individualized hearing?

-Streamline agency administration of law – permits the agency to put the regulated parties on notice and avoid costly, time consuming adjudication

-Agency power to prescribe rules and regulations necessary or appropriate to carry out the provisions of the Act – trumps hearing responsibility

-Rulemaking gives content to vague Congressional delegation

-Waiver possibility – agency could provide waiver to the rule in special circumstances

  1. Adjudication –agency process for the formulation of an order – whole or part of an agency final disposition, ergo nearly all agency action is adjudicatory

Goldberg – Due Process places constraints on administrative agencies’ power not to provide an adjudicatory hearing – BEFORE termination of a property interest (welfare), an administrative agency must provide an evidentiary hearing that includes

-right to confront/cross examine witnesses

-permission to retain counsel

-written decision from decisionmaker chronicling rx’s and legal substantiation

NB Due Process is flexible – “some benefits may be terminated without affording the recipient a pretermination evidentiary hearing”

Bureaucratic Model – quick and efficient but decisionmakers lack discretion or a face

Judicial Model – slow and costly with high level of discretion in decisionmaker

NB The tension between the two models is recurrent – Storer/Texaco represent the bureaucratic model at its finest while Goldberg demonstrates there are instances where Due Process mandates that admininistrative agencies employ pseudo-Judicial processes to make a determination.

Judicial Review of Administrative Action

II What are Administrative Agencies

  1. Congress and the Administrative Agencies

Nondelegation –idea that Congress may not relinquish the legislative power vested w/in it by the Constitution (Art !, Sec. 1) Why?

-Art I

-Theory of political accountability – populus only consents to the Government of those whom they elect

-Agency Theory – the agent (Congress of the people) may not redelegate his authority

-Separation of Powers Fears – joinder of the legislative and executive

Panama Refining Co./Schechter Poultry – delegation of power to Pres. to exclude oil products from the open market and to approve industry codes of fair competition, respectively, are found invalid Why?

-Congress failed to provide standards/procedures to which the Pres could conform in fulfilling the duty delegated to him – granted sweeping power to approve codes of “fair competition” w/out defining procedures by which Pres would do so (Schechter)

-Failure to define “fair competition” itself, thereby allowing the Pres to define the contours of the legislation’s meaning (Schechter)

- The theory has been transformed from a limitation on Congressional conferral of

power to a justification for such conferrals Why?

- Practicality – Congress has neither the time nor the expertise to completely govern

JW Hampton – as long as Congress provides an intelligible principle to which the agency can conform, the delegation is permissible (upholding Pres. power to modify tariff schedules w/in parameters prescribed by Congress)

Yakus – “only if there is an absence of standards” provided by Congress such that there will is not ascertainable on the face of the statute will impermissible delegation be found (upholding delegation to Office of Price Administration the authority to control prices where statute provides guidance by which courts can measure whether the OPA obeyed the will of Congress)

Amalgamated Meat Cutters – Congressional delegation to President to stabilize prices through “orders and regulations … necessary to avoid gross inequities” is Const Why?

-Time constraint on Pres power to freeze prices

-History of Pres authority to freeze prices

-Legislative History contains sufficient explication of purposes (intelligible principle) of the Act to guide the Pres in his administration and allow the courts a reference to ensure adm. obeyance of congressional will (Yakus, Hampton)

-APA now constrains all admin action w/in the bounds of the Due Process clause and :arbitrary, capriciousness”

-Explicit pronouncement not to single out specific industries

-What about the Pres delegation to council to administer the act?

  • Redelegations are permissible – Pres has removal power over agency, therefore, they must fulfill his will

Is there any way that a Congressional delegation may be found to offend the principle of nondelegation?

Whitman – “degree of agency discretion … acceptable varies according to the power congressionally conferred” – I

-If Congress confers immense powers to regulate the nat’l economy, the specificity of its instructions for management of that delegation must increase proportionately

-Upholding delegation to EPA to set particulate matter levels “requisite to protect the public health” despite objections that this delegation is vague/unintelligible/impossible to define standards

-Why does Scalia, the great textualist, accept delegation?

  • Discretion inheres in all executive action – there will always be executive choice in regard to implementation

The Non-Aggrandizement Principle: idea that the Constitution prohibits Congress from using the legislative power to confer upon itself/create powers which the Constitution itself does not confer to Congress

Chadha – Congress may not exercise legislative power outside the confines of bicameralism and presentment explicit in the Const.

-What is legislative power?

  • Congressional action that has purpose or effect of altering the legal rights, duties and relations of persons
  • The legislative veto whereby Congress retains the power, w/in a singular House and w/out Pres approval to override executive action is the exercise of legislative power outside the confines of bicameralism and presentment

-Stevens – concurrence in Whitman suggested that the S Ct acknowledge that admin agencies adopt legislation – Under this realist standard, would agency rulemaking invariably be in tension w/ the principle that legislative power cannot be exercised w/out Bicam and Pres.?

  • No – exerciser of power would be distinct (agency) , ergo the threat of Congressional creation of power w/in itself that the Const does not confer does not arise
  • Plus, the agency action is bound by the delegation of Congress which itself must conform to the nondelegation doctrine – thus there are structural impediments

-White (dissent) – spirit of Bicam. and Pres. are intact – for administrative action to occur, Atty General (executive) must take action and the House and Senate (legislative) must approve –Problem?

  • Legislative inaction/passive affirmance is far different that legislative action/Active Affirmance in traditional Bicameral legislation

Bowsher – Congress may not endow a congressional officer with executive powers – to do so would allow Congress, through its agent, to retain power (executive) that the Constitution forbids the legislative branch to exercise

-How does one recognize a Congressional officer?

  • Removability – If Congress retains discretionary removal powers over an official, that official must be Congressional (Morrison – retention of removal power over executive officials is unConst as violative of the separation of powers
  • Congress had broad power to remove Comptroller for cause through joint resolution – act subject to Bicam and Pres.

-How does one recognize the exercise of executive power

Iinterpreting a law enacted by Congress to implement the Congressional mandate=executive power

  • Comptroller General is interpreting the Deficit Control Act to provide means of implementation=executive power
  • An executive officer is any person who exercises significan interpretive authority pursuant to a public law
  • Buckley – an official exercising significant interpretive authority pursuant to Public Law is subject to the provisions of the appointments clause (Congress cannot appoint such an authority because to do so would run afoul of the separation of powers

Central Point of Non-Aggrandizement – Congress may not statutorily confer power to itself which the Constitution does not confer to them

-Chadha – Const does not permit exercise of legislative power byt Congress w/out B&P, ergo Congress cannot confer upon itself the power to exercise legislative power w/out B&P

-Bowsher – Const does not permit the Congress to execute the law it passes, ergo Congress cannot confer upon itself (through its agents) the power to execute the law

-Buckley – Const does not permit Congress to appoint executive officials, ergo Congress cannot confer upon itself the power to appoint executive officials

How can Congress control agency action lawfully?

-Statutory Precision

-Agency Oversight

-Control Agency’ budget

Statutory Precision : technique of legislative construction that allows Congress to more precisely shape the contours of administrative action by limiting agency discretion Why?

-Congress wants to be certain power is exercised according to Congressional intention

-Divided Gov’t : if legislature and executive are separate parties, legislature may wish to ensure that partisan admin does not reinterpret

eg In Chadha, rather than attempting to maintain an unconst legislative veto, Congress could have provided more precise guidance to the Atty General to specify those instances where suspension of deportation proceedings was proper

Delaney Clause – restricts FAD approval of any additive found to induce cancer, or found after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer

Public Citizen – where Congress applies an extraordinarily rigid/precise standard for administrative implementation, no de minimis exception applies to that standard (holding the FDA wrongly approved two color additives on the theory the carcinogenic effects of the additives was de minimis where Congress explicitly announced that no carcinogenic additives were subject to approval)

- When might a de minimis exception apply to a statutorily precise delegation?

  • If examination of the entire statue demonstrated that allowing the exception would implement the {true] legislative design
  • Eg Statute bars carcinogenic agents but also empowers FDA to approve medications for the treatment of disease – medication that was slightly carcinogenic but would save thousands of lives would likely be approved on a de minimis exception

-How else might an agency avoid the control Congress is attempting to exercise through precision?

  • Manipulate statutory language (eg appropriate)
  • Obfuscate cause and effect – eg studies are inconclusive as to whether X is the direct cx of cancer

How can we characterize statutory precision?

-Micromanagement – are there disadvantages to this approach?

  • Undermines the exercise of the expertise of the particular agency
  • Inflexible – prohibits agency from implementing pragmatic solutions in their regulatory field
  • Paralyzed/Frozen Std. – Delaney Clause was enacted at a time when the sophistication of science was unable to calibrate as closely the extent of risk certain levels of carcinogens posed – rigid std. inhibits discretionary approval of “safe” carcinogens

Are there advantages to this approach?

  • More clearly tracks political accountability theory – legislature designing the laws that govern own behavior
  • Simplify/Make predictable outcomes

Other Tools of Congressional Control

-Generalized Statutes

-Legislative Influence : attempts by legislatures to exercise political influence over administrative decisionmaking through suggestion

  • Pillsbury – intervention by legislatures during judicial proceedings is particularly unacceptable (holding that FTC commissioners subjected to Congressional committee during an ongoing adjudication must recuse themselves) Why?
  • Legislators are citizens who share the right to express their opinion in legislative matters of admin … but neither their citizenship nor their position entitles them to intervene in judicial matters – this implicates the fair trial rights of the adjudicants
  • Volpe – administrative decisions initiated based on the consideration or factors that were irrelevant to the primary Congressional mandate cannot stand (if Sec Volpe’s decision was the result of poltical pressures from Congressmen that were unrelated to the statutory mandate ie political blackmail, then the decision may not stand)
  • If an administrator makes a decision based on ex parte contact, the decision cannot be controlled by that suggestion

The President and the Administrative Agencies

Appointment and Removal of Officers

Appointment

Buckley (1976) – appointment of Officers of the US (Federal Election Committee) by anyone besides the Pres derogates the Pres exclusive Appt Power pursuant to Art 2 §2

(holding committee – composed of Congressmen – election of FEC members unconstitutional)

-How does one determine who is an Officer of the US?

  • any appointee exercising significant authority pursuant to the laws of the United States=Officer of the US
  • Enforcement/Adjudicative/ Rulemaking powers of the FEC= significant authority under the laws …. but
  • Investigative/Informative Power of FEC=merely in aid of the legislative function of the Congress
  • Function that Congressional committees would perform, Congressional outsourcing
  • Morrison(1988) – apparently the Independent Counsel does not exercise significant authority since he was appointed by the courts (Special Division) – How else can Morrison be distinguished? ask about this …
  • No Congressional attempt to aggrandize – though removal power was limited, the executive (Atty General) still retained the power

NB Buckley may also be read to uphold the nonaggrandizement principle – The Const does not permit Congress to appoint Officers of the US itself, ergo Congress cannot confer upon itself the power to appoint Officers of the US

NRA Political Victory Fund - Congress may not appoint nonvoting members to FEC Why? - Such member may still exercise significant authority within the FEC – continuing fear of aggrandizement

Removal

Humphrey’s Executor (1935) – Congress can place limitations on Presidential removal power when official is not exercising purely executive power (holding the power exercised by the FTC Commissioner is Not purely executive, ergo Congress can place removal limitations on the official)

-The problem w/ the Humphrey’s ruling is its amorphous std. for determining whether an official is exercising purely executive power

  • Does Congress intend for the officer to be independent of the President (Morrison)?
  • Is the character of the office focused on legislative/judicial action?
  • These questions provide no judicially manageable standards to determine when Congress may limit the power of the President to remove officers …

Morrison – Congress can place removal restrictions on executive officers so long as the do not impede the Pres ability to perform his Constitutional duty

-Two step inquiry to determine whether removal restriction would impede the Pres in performance of his constitutional duty

  • Is a Const duty of the President implicated by the officer’s position?
  • Willogby (Political Chief- Pres possesses limited Const duties - those for which there is no judicial review) vs Scalia (unitary executive- Pres possesses broad powers to faithfully execute the laws)
  • Which understanding of the Pres Constitutional powers one adopts dictates the inquiry …
  • Would removal limitation act as an impediment on the Pres ability to “faithfully execute” the constitutional duty implicated?
  • If one adopts the unitary executive theory, chances increase that removal restriction impedes Pres
  • If one adopts Willogby theory, chances are slighter that removal restriction impedes the Pres

-

-It is per se unconstitutional for Congress to place a removal restriction on a principal officer

-It is per se constitutional for Congress to place a removal restriction on an inferior officer

How does one determine if an officer is inferior?

-Is the officer subject to removal a higher exec branch official (Ind Counsel is removable by the Atty General …)

-Are the duties of the officer limited (Ind Coun only has one specialized duty)

-Is the tenure of the officer limited

-Is the jurisdiction of the officer limited (Ind Counsel only prosecutes certain federal officials?

Is there any problem w/ empowering the Courts to appoint the Independent Counsel?

-Art II explicitly empowers Congress to vest by law the appointment of inferior officers, as they think proper, in the Pres alone, in the Courts of Law or the Heads of Departments

  • Still Congress’s choice of who will appointinferior officers is limited by the doctrine of incongruity
  • What is an incongruity?
  • When the functions of the appointing body are somehow inconsistent with the power to appoint …
  • In this case, courts are especially expert to choose a Prosecutor

Is there any Art III problem with allowing the courts to define the jurisdiction of the independent counsel?

-Normally the courts may only decide cases or controversies