Chapter 2
Part 1
1
The Delegation Doctrine
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The core question is whether Congress can
delegate legislative or judicial power to an
executive branch agency.
The Constitution is silent on this issue. The
United States Supreme Court initially resisted the
delegation of these powers to agencies.
This played out during the mid-1930s when
Congress created several new agencies to fight
the Depression.
2
Delegation Doctrine - Rulemaking
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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
3
"Intelligible Principle" - Rulemaking
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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
4
What is an Intelligible Principle?
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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
5
Delegation Doctrine - Adjudications
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Old test was public versus private rights
New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S.
833 (1986)
 [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?
6
Limitations on Delegation
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Criminal penalties can only be assessed by Article
III courts.
 Agencies can impose civil fines
While magistrate judges can handle some parts of
criminal trials, the core trial functions must be
done by an Article III judge.
Agencies can restrain (lockup) individuals,
subject to habeas corpus review, or statutory
review if provided by the legislation.
7
Practical Considerations
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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 into
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
 Guantanamo Bay detentions are administrative
8
Right to Judicial Review of Agency
Actions
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There is a right of judicial review of rules to
determine if the agency has the legal authority to
issue them and if they properly supported by the
record.
There is a constitutional right to due process
protections in adjudications, and usually a right to
judicial review of the decision.
 As we will see, Congress can limit judicial
review in some circumstances.
9
Presidential Control of Agencies
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The president's 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?
10
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."
11
Limits on Congressional Appointments
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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
12
Civil Service
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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
13
Pros and Cons of the Civil Service
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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
14
Buckley v. Valeo, 424 U.S. 1 (1976)
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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
15
The Role of the FEC
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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?
16
The Congressional Budget Office (CBO)
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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?
17
Washington Airports Authority v. Citizens for
the Abatement of Aircraft Noise, Inc. 501 U.S.
252 (1991) (“MWAA”)
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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?
18
The Library of Congress
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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?
 What part does make rules and get involved in enforcement?
19
Congressional Removal of Executive and
Judicial Branch Officers
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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?
Why is this a problem for dealing with bad judges?
 The executive branch can remove its own, but only
congress can remove judges
20
INS v. Chadha, 462 U.S. 919 (1983)
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This is an important case about the relationship
between Congress and agencies
What is the legislative veto as used in this case?
 Why was it efficient from the point of view of
congress?
 The legislative veto was very common at the
time Chadha was decided
21
Adjudication Issues
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While we will talk about adjudications in the next
chapter, this is also an adjudication case.
22
Are there Limits on Congressional Power
over Aliens?
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Congress' Art. I power "To establish an uniform Rule of
Naturalization," combined with the Necessary and Proper
Clause, grants it unreviewable authority over the
regulation of aliens.
Aliens in the US, even illegals, get constitutional
protections such as criminal due process
 They get only limited rights on detention and
deportation
 They have no right to stay, only a right to a hearing to
make sure the agency has the right person and facts.
23
The Immigration Question
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What are the political questions over
immigration?
How have these changed over time?
What are the debates right now?
Why does immigration divide both conservatives
and liberals?
24
Background on Deportation
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What agency was the INS part of?
Now - http://www.ice.gov/
 What is the significance of the shift?
Why is Congress ambivalent about deportation?
Why do you think Congress gave the DOJ the right to
decide whether aliens should be allowed to stay in the
U.S.?
Why did they want to retain a say in deportation
proceedings?
25
§ 244 - What the Alien has to prove to stay
deportation
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“...has been physically present in the United States
for a continuous period of not less than seven
years immediately preceding the date of such
application,
...that during all of such period he was and is a
person of good moral character;
...is a person whose deportation would, in the
opinion of the Attorney General, result in extreme
hardship to the alien or to his spouse, parent, or
child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence.“
Are these black and white factual determinations?
26
Chadha’s Situation
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Did Chadha enter the country legally?
How did he become deportable?
Does the statute give the agency the discretion to
stay his deportation?
What did the ALJ find?
Did the agency agree?
27
Legislative Veto
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What is the role of the House of Representatives
in the law challenged by Chadha ?
If they had not acted, would Chadha have been
able to stay in the country?
What was their ruling on Chadha?
 (They did not vote against Chadha personally,
they rejected the list.)
28
Post Legislative Veto
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The ALJ (immigration judge) reopened the
proceeding
Does the ALJ or the agency have the right to
override the congressional act?
Can the agency refuse to follow what it believes is
a congressional action taken under an
unconstitutional law?
29
The Circuit Court
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DOJ joined Chadha in challenging the law
Why did this produce a "case and controversy"
issue?
 What is the purpose of the case and
controversy provision?
 Can Congress modify the requirement?
 Are the states bound to have a case and
controversy requirement for their courts?
Why did the court invite Congress to submit
briefs?
30
Does History Make the Legislative Veto
Constitutional?
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"Since 1932, when the first veto provision was
enacted into law, 295 congressional veto-type
procedures have been inserted in 196 different
statutes as follows: from 1932 to 1939, five
statutes were affected; from 1940-49, nineteen
statutes; between 1950-59, thirty-four statutes;
and from 1960-69, forty-nine. From the year 1970
through 1975, at least one hundred sixty-three
such provisions visions were included in eightynine laws."
31
What if the Legislative Veto is a Useful
Law?
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... the fact that a given law or procedure is
efficient, convenient, and useful in facilitating
functions of government, standing alone, will not
save it if it is contrary to the Constitution.
Convenience and efficiency are not the primary
objectives -- or the hallmarks -- of democratic
government and our inquiry is sharpened rather
than blunted by the fact that congressional veto
provisions are appearing with increasing
frequency in statutes which delegate authority to
executive and independent agencies
32
Bicameralism
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What was the Great Compromise?
Why was it critical to the ratification of the constitution?
How is the senate different from the house?
 How were senators originally chosen?
 Senate rules are not from the constitution, they are a
latter add-on by the Senate
Why was bicameralism key to making the Great
Compromise work?
33
Checks and Balances
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How does bicameralism it fit into the checks and
balances of the US Constitution?
 Does the constitution require the states to have
bicameral legislatures?
How has the evolution of the Senate's rules changed
from the intent behind the compromise?
 Did the founders contemplate modern political
parties?
How does the legislative veto violate bicameralism?
Would presenting this to the senate have changed the
constitutional question?
34
Presentment Clause
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What is the president’s role once legislation has passed
the house and senate?
What if he does not sign it?
 The Constitution grants the President 10 days to
review a measure passed by the Congress. If the
President has not signed the bill after 10 days, it
becomes law without his signature.
 pocket veto - However, if Congress adjourns during
the 10-day period, the bill does not become law.
35
Presidential Veto
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Why does the constitution give the president a
veto?
Who did the founders have in mind as president
when they put the veto in?
What can Congress do if the president vetoes a
bill?
How have bills changed since the founding?
36
When may the House of Representatives
Act Unilaterally?
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(a) The House of Representatives alone was given
the power to initiate impeachments. Art. I, § 2, cl. 5;
(b) The House elects the president if no candidate
gets a majority in the Electoral College.
(c) The House initiates spending bills.
37
When may the Senate Act Unilaterally?
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(a) conduct trials following impeachment on
charges initiated by the House and to convict
following trial. Art. I, § 3, cl. 6;
(b) elects the vice-president if no one receives a
majority of votes in the Electoral College.
(c) final unreviewable power to approve or to
disapprove Presidential appointments. Art. II, § 2,
cl. 2;
(d) unreviewable power to ratify treaties
negotiated by the President. Art. II, § 2, cl. 2.
38
What is the Only Congressional Joint
Resolution with Legal Effect?
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Congress declares war by joint resolution
Does the Constitution provide a specific
mechanism to end wars?
 Why?
39
What is the significance of these narrow
exceptions?
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Why did the court find the legislative veto a major
constitutional issue?
What did the court rule?
Has this crippled government function?
Does it strengthen agency powers?
40
Post-Chadha
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Congress enacted a law requiring notice of certain
agency actions and created a delay in their
implementation to allow it to pass a law to
override them
It is much harder to pass a law and get it signed
by the President, which leaves the agencies more
latitude than before Chadha
Some state legislatures have asserted the right of
legislative veto.
41
Formal Legislative Review and Oversight
of Executive Branch Agencies
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(1) an appropriations committee, which oversees how the
agency spends its budget;
(2) a “substantive” committee, which oversees the
substance of the agency’s work; and
(3) “government operations” committee, which is
concerned with the agency’s 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?
42
Informal Legislative Review and Oversight
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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
Member’s staffs, or a committee’s staff, and agency
officials.
 Many of these informal contacts relate to discrete
agency actions affecting specific constituents.
Do you think Congressmen get better service?
Is this fundamentally undemocratic?
Where does lobbying come in?
Charlie Wilson's War?
43
What is an Earmark?
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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.
 Is this consistent with the founders intent?
The appropriations statute itself, however, does
not refer to the clinic. Nor does IHS’s organic
statute.
44
Enforcing Earmarks
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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?
45