Chapter 2
Part 1
1
Delegation Doctrine - Rulemaking



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
2
"Intelligible Principle" - Rulemaking


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
3
What is an Intelligible Principle?


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
4
Delegation Doctrine - Adjudications



Old test was public versus private rights
New Test
 [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?
5
Practical Considerations


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 to
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
6
Control of Agencies



The 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?
7
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.“
8
Limits on Congressional Appointments



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
9
Civil Service


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
10
Pros and Cons of the Civil Service


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
11
Buckley v. Valeo


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
12
The Role of the FEC



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?
13
The Congressional Budget Office (CBO)



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?
14
Washington Airports Authority v. Citizens for
the Abatement of Aircraft Noise, Inc. (“MWAA”)


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?
15
The Library of Congress



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?
16
Congressional Removal of Executive
Branch Officers



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?
Could Congress remove the head of the CBO without
impeachment?
17