Chapter 2
Part 1
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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
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"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
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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
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Delegation Doctrine - Adjudications
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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?
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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 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
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Control of Agencies
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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?
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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.“
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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
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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
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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
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Buckley v. Valeo
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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
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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?
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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?
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Washington Airports Authority v. Citizens for
the Abatement of Aircraft Noise, Inc. (“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?
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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?
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Congressional Removal of Executive
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?
Could Congress remove the head of the CBO without
impeachment?
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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?
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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?
Where does lobbying come in?
Charlie Wilson's War?
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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.
The appropriations statute itself, however, does
not refer to the clinic. Nor does IHS’s organic
statute.
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Enforcing Earmarks
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?
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Executive Power
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Vesting and Take Care Clauses
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“The executive Power shall be vested in a
President of the United States of America.” U.S.
Const. art. II, § 1.
Article II says that the President, specifically,
“shall take Care that the Laws be faithfully
executed.” Art. II, § 3.
Together, these define the source of the
president's domestic powers
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The Unitary Executive
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Do all of the executive branch powers belong to the
president him/herself?
 In Chadha, Congress gave the Attorney General the
power to stay the deportation of an alien
 Can the president override the AG's decision?
 Can he only fire the AG?
Why does it matter whether the president has the power
or the AG has the power?
How does the Appointments Clause fit into this analysis?
 If it is the president's power, why should the Senate
care who he appoints?
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President Nixon and the Independent
Counsel
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Great crisis in presidential control.
What was the Saturday night massacre?
Why do the liberals really hate Bork?
 He carried out Nixon's order to fire Cox
Nixon's firing of the independent prosecutor was
the background for this law
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What was Clinton's biggest political
mistake?
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Not vetoing the renewal of the Independent
counsel law
Hubris - it had been attacking Republicans and he
was going to have the most ethical administration
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Stopped here
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Morrison v. Olson, 487 US 654 (1988)
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Why was Olson suing and what did he want?
What triggers the appointment of an independent
counsel?
Who appoints the independent counsel?
Why will this always be political?
 Reno and Gore
 Ashcroft/Gonzales and Halliburton
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The Core Function Standard for Inferior
Officers
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Is it an "inferior" official?
 yes, because of the limited mandate - no policy making
Is this a critical area for the president to control the
exercise of discretion?
 no, that is why it is independent
Does the president retain enough control?
 yes, good cause firing is enough, and this is exercised
through someone (AG) the president controls
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What was the key issue in Olson?
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The limitation of the removal power to good
cause, rather than at-will
Does this impermissibly interfere with the
president's power to carry out the laws?
 Majority says no, rejects the use of "quasilegislative/quasi-judicial" labels and focuses on
separation of powers
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Intimidation by the IC
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Scalia saw this as a stark limitation on the
president's power to exclusively control the
executive branch
He pointed out that while the IC may not intimidate
the president, it will affect executive branch
officers who are subject to what seems political
prosecution
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Was Scalia Right?
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What was he worried about as regards the power
of the office?
 He stresses the broad powers of the IC
What would it cost you to be investigated?
Was Scalia right about the impact of the IC?
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Edmond v. US, 520 U.S. 651 (1997)
The Supervision Test
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Coast Guard criminal appeals judges are subject to
administrative supervision by the Judge Advocate
General, who also has the power to remove them without
cause.
The judges’ decisions are subject to review by the Court
of Appeals for the Armed Forces.
In Edmond, the Court held that judges of the Coast Guard
Court of Criminal Appeals are “inferior” officers.
 The Edmond Court based that holding exclusively on
the fact these judges’ work is directed and supervised
by principal officers.
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Congressional Determinations
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If the Congress establishes that the position is an inferior
officer, the courts have not second-guessed it.
 This might change if Congress created an inferior
office that was clearly the job of a principal officer.
Be careful of circular arguments
 Just because an officer is not required to be appointed
under the appointment's clause, that does not prevent
the court from finding that the position is covered by
the Appointment's Clause
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Example: General Counsel to a Cabinet
Agency
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What is the classification of the Secretary of Veterans
Affairs?
What are the duties of the General Counsel to the
Secretary?
Is the general counsel an employee, inferior officer, or
principle officer of the US?
 Much more authority than just an employee
 Does the general counsel make decisions that affect
agency policy or enforcement?
 What is the level and right of supervision by the
Secretary?
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