Admin Law Midterm—Model Answer
American Car Company has a few options regarding challenges to the constitutionality
of the Commission as well as the Board. Specifically, challenges could be mounted based
on delegation issues as well as appointment and removal consideration. Each will be
addressed in turn.
Non-Delegation
The first real hurdle for SEA to get over will be whether its organic statute violates the
non-delegation doctrine. The crucial question that the non-delegation doctrine asks is:
has Congress overstepped the limitations set out by the Vesting Clause Here, the
delegation likely is sufficient to meet the lax standards governing the non-delegation
principle. For this delegation to be permissible, the statute, here the Environmental
Quality Enhancement Act, must lay down an intelligible principle to guide the exercise
of the Agency’s power. In assessing this standard, Courts look at (1) the task(s) delegated
by the statute and (2) the instructions that statute provides.
Section 2 of the Environmental Quality Enhancement Act (EQEA) describes the task
delegated to the Agency. 2(b) states that the Agency “shall have the authority to establish
and enforce emission standards as necessary to protect and enhance public health and
environmental quality.” 2(c) provides some instructions in how to accomplish this task:
the Agency “shall determine emission standards in a manner consistent with the
objectives and purposes of this Act and shall consider scientific, technological, and public
health factors when seSing such standards.” Because 2(c) mentions the “purpose” of the
Act, Section 1 is also relevant to Congress’ instructions. Section 1 states: “For the purpose
of securing a sustainable environment, for the purpose of the national defense, for the
purpose of promoting safety of life and property through the regulation of environmental
pollutants, there is hereby created a commission….”
Conversely, this situation may be analogous to the Benzene case, where a limit reduction
from 10ppm to 1ppm was construed as not allowed under the statute at issue. Much like
the Benzene case, the rule at issue requires a reduction in pollutants. In Benzene, the Court
construed the statute as requiring a finding of a significant risk of harm at the previous
level and that the new, lower standard is reasonably necessary to appropriate to provide
safe/healthful employment places.” Because the finding was not show, the specific rule
was held not allowed by the statute. This was the canon of constitutional avoidance at
work. Construe the statute in such a manner as to invalidate the given action without
striking down the whole statue. In the present case, the facts do not indicate by what
metric the Agency should determine what emission standards are “necessary”. The Court
could read into the statute a requirement of specific findings. However, if such a reading
of the statute is not reasonable, then the Court may not be able to avoid the constitutional
issues it is faced with.
Whether or not SEA’s organic statute enumerates an intelligible principle depends, most
probably, on the Court’s ideological makeup. On the one hand, the Court has not
invalidated an agency on the basis of non-delegation since 1935. On the other hand, the
ascendent ideological bloc of conservatives in the Court has indicated several times that
it would be happy to construe this more strictly. In fact, J. Gorsuch proposed his own test
in the dissent in Gundy. Gorsuch’s test was (1) Congress may authorize another branch to
“fill up the details” as long as it makes policy decisions, (2) Congress may make
application of its rules “depending on executive fact-finding,” (Brig Aurora), and (3)
Congress may assign the executive and judicial branches certain non-legislative
responsibilities.
By this test, which could very well be the approach the court takes with its conservative
super majority, SEA could well find itself in violation of the non-delegation principle
purely by way of the “substantial authority” it wields (discussed in section 1 of this
midterm). Not only can SEA undertake “executive fact-finding,” but it may also issue
rules (legislative responsibilities) that Gorsuch would probably reserve for Congress.
And in all likelihood, issuing emissions standards like reducing carbon by 25%, which
implicate nearly every aspect of life in the U.S. (manufacturing of all kinds, e.g., cars)
would qualify as policy decisions in and of themselves under Gorsuch’s narrow view.
Whether SEA violates the non-delegation principle rests on whether the Court decides to
apply precedent (unlikely) or indicates a new test like Gorsuch’s.
Appointment
There are appointment issues for both the Agency Director as well as the ELJs. Each will
be analyzed in turn.
Agency Director. The Agency director has been appointed by the Secretary of the
Interior. Thus, appointment has been vested outside of the standard means prescribed by
the Appointments Clause (P + WACOS). This structure is permissible if one of two things
are the case. First, if the Agency Head is a mere employee, this is permissible. Second,
even if the Agency Director is an officer, this appointment structure is permissible if they
are an inferior officer.
Officer/Employee: The Agency Director is likely not a mere employee. The test is whether
the individual has (1) a continuing office established by law and (2) exercises significant
authority under the laws of the United States. First, the statute here “establishes” the
office of the Director. Second, the Agency Director likely exercises significant authority.
They have the power to confirm ELJ decisions as final, and they have power to determine
if cause exists to remove ELJs.
Inferior or Principal Officer: While the Agency Director is likely an officer, he is also likely
an inferior officer. Thus, his appointment is likely permissible under the appointments
clause, as the appointment has been vested in another agency head. The Court’s decision
in Morrison v. Olson provided four factors in making this determination: 1) Is the officer
subject to removal and discretion by a higher Executive Branch Official? 2) Does the
officer have limited duties? 3) Does the officer have limited jurisdiction? 4) Does the
officer have limited tenure? The more recent decision in United States v. Arthrex indicates
that the first factor (subordination) may be most important.
Here, the Agency Director is removable for “negligence, inefficiency, or malfeasance in
office.” These removal protections may cut towards being a principal officer. Per this fact
paSern, the Agency Director duties are also limited. Their duties with respect to ELJ
decisions is just to confirm their decisions as final, but not to review them. This cuts
towards inferior. They do have a removal power over the ELJs, but this is only for cause,
and is shared with the Secretary of the Interior. Again, this cuts towards being an inferior
officer. The Agency Director’s jurisdiction is limited to the issues regarding emissions,
which may be narrow enough to cut towards being an inferior officer. Finally, it is unclear
the default tenure of the position, but again, the removal protections may indicate that it
is an ongoing position. This is a close call but based on the Agency Director’s being below
the Secretary of the Interior and having relatively limited duties, it is more likely they
would be deemed an inferior officer, and their appointment by the Secretary of the
Interior is appropriate.
The ELJs. Like the Agency Director, they are appointed by the Secretary of the Interior,
so must be either mere employees or inferior officers. Here, they may not satisfy either.
Employee/Officer: As above, it’s not clear the default duration of their tenure. However,
they have removal protecting that indicate they have at least some lasting offices.
Additionally, they are directed by law to adjudicate claims, disputes, and appeals related
to the Act. Thus, they are more than mere employees and are officers.
Inferior or Principal Officer: Further, they are also likely principal officers. Again, the
Morrison factors apply. : 1) ELJs are removable by the Secretary of the Interior or by the
Director of the Agency, but only upon a showing of good cause. The Court in Morrison
held that independent counsel was an inferior officer even though they were removable
only for good cause, so that alone may not weigh toward EPJs being Principal Officers.
However, the fact that the Agency Director “may not interfere with, alter, or reverse” a
decision of the EPJs is comparable to Arthrex, where the fact that the decisions of the APJs
were not reviewable made the APJ appointment process unconstitutional. 2) EPJs
adjudicate claims, disputes, and appeals related to the EQEA. EPJs do not have the
authority to promulgate new regulations or formulate policy. This could indicate that
they are inferior officers. 3) EPJs only adjudicate maSers related to the EQEA. American
Car Company may argue that this is still extensive jurisdiction because the EQEA is
wriSen broadly enough to allow regulations in many areas of public health and
environmental quality. However, it is arguable that being limited to the scope of the
EQEA still gives ELJs limited jurisdiction. 4) Section 4 of the EQEA does provide tenure
protections for EPJs. EPJs may only be removed upon a showing of good cause.
Additionally, there are no fixed terms for EPJs. This factor may weigh toward EPJs being
Principal Officers.
Factor (1) alone may enable American Car Company to successfully argue that
EPJs are Principal Officers. This makes these ELJs much like the APJs in Arthrex,
Additionally in Arthrex, there were means of control outside of direct review that are not
present. Importantly though, the remedy provided by the Court could rear its head here.
Rather than invalidate the appointment of the ELJs, the Court could, like in Arthrex,
rewrite the statute to provide for direct review of ELJ decisions by the Agency Director.
However, if the Court is unwilling to require review by the Agency Director, then the
appointment of the ELJs likely runs afoul of the Appointments clause.
Removal
Each of the Agency Director as well as the ELJs are removable only for good cause,
including “negligence, inefficiency, or malfeasance/abuse of office.” The Question for
both is whether the removal restrictions are of such a nature that they impede the
President's ability to perform his constitutional duty. Each will be analyzed in turn.
Early cases and recent trends would point towards these removal protections being
impermissible. Those cases (Myers and Seila Law) embrace expansive views of the
President’s removal power and carves out narrow exceptions provided by Humphrey’s
Executor and Morrison. The Humphrey’s Executor exceptions is for multi-member,
partisan, impartial, and staggered boards. The Morrison exception is for inferior officers
with nor significant policy making authority.
The Agency Director. Section 3 of the EQEA states that the Agency Director, who is
appointed by the Secretary of the Interior, may be removed only for good cause. The
EQEA doesn’t provide a lot of detail about the Agency Director’s duties, but American
Car Company will likely argue that the Director does not qualify for the exception under
Morrison because the Agency wields significant policymaking authority—establishing
and enforcing emission standards. In Seila Law, the Court held that a similarly situated
Director of the Consumer Financial Protection Bureau (CFPB) violated separation of
powers because the CFPB Director had significant executive power and was not
removable by the President except for good cause. It is likely that a court would similarly
hold that the Agency Director is a Principal Officer that must be removable at the
President’s discretion.
The ELJ’s. Here, there is an interesting two-level protections issue. With respect to their
removal by the Agency Director, there is for cause protection for the ELJs as well as the
Agency Director. This has been held impermissible by the Court in Free Enterprise Fund
v. PCAOB. However, the ELJs are also removable by the Secretary of the Interior, who is
in turn removable at will. Thus, double removal protection with respect to the Agency
Director – ELJ combo may not be a problem, assuming the President can execute their
constitutional duty through the removal path that passes through the Secretary of the
Interior. Alternatively, the Court may sever the portion of the statute providing for
removal by the agency director.
Another issue with the ELJ removal protections is that it does not fall into either the
Humphrey’s executor or Morrison exceptions. The ELJs are not part of a multi-member
partisan board and they do exercise significant policy making authority as their decisions
are final. Thus, their removal protections do impede the President’s ability to perform his
constitutional duty.
Conclusion
As far as all of American Car Company’s claims go, the strongest are that the ELJs are
principal officers whose appointment runs afoul of the Appointments clause and that the
removal protections provided by the ELJs are similarly not allowed because the president
is unable to control their actions and is in turn not accountable for their actions and is
unable to take care that the laws be faithfully executed.