Constitutional Law I

The Administrative State

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Administrative AgenciesUtility Administrative State arose by necessity

breadth of federal gov’t and regulations develop institutional expertise

Const’l Framework Admin. agencies are part of executive branch

subject to Jackson 3-zone structural approach Exercising delegated power

non-delegation doctrine (dual fed’ism) greatly restricted

if acting outside delegation, then zone-2 or zone-3

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Example of Admin Agency

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Functions of Admin Agencies

Executive functions apply/administer/enforce federal law

Quasi-Judicial Functions adjudicate disputes involv-

ing agency functions agency courts hear “public

rights” cases

Quasi-Legislative Functions promulgate rules,

regulations, & (micro) policy congress can override by

statute

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Why Agencies have such power

Complete separation of power not feasible Some degree of law-making is inevitable in

Executing laws Deciding cases

Some degree of adjudicating also inevitable in Administering laws

As result, most agencies are in Exec Branch basic functions are executive

enforce congressional and Presidential policy

Because of their integrated functions agencies need to be in the branch

with the most flexible SoP oversight

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Non-Executive AgenciesArt. I: Congressional agencies and offices Example: CBO, Library of Congress, GAO cannot exercise these functions

executive judicial legislative (surprise) see INS v. Chadha

can assist congress w/ research, advice, etc.

Art. III: Judicial agencies and offices Ex: judicial council, magistrates no Art. I, II, or III functions,

can assist courts (recommendations)

Ancillary lawmaking functions

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Non-Delegation DoctrineSchechter Poultry v. United States (1935) NIRA authorizes President

to implement “Code of Fair Competition” as proposed by (private) Industry group

Delegation of legislative power Invalid if unfettered discretion Valid if limited (guided) discretion

NIRA imposes few policy standardsPanama Refining v. Ryan (1935) Cong. authorizes President to prohibit “hot oil”

Bare Presidential policy; not “executing” any law Policy not specifically set by congress

“Intelligible principle” principle

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Whitman v. Am Trucking Assn (2001)

Does EPA exercise legislative or quasi-leg. power? Clean Air Act requires EPA to promulgate Air Qual Stds

Standard must protect public health based on published air quality criteria and latest scientific knowledge

Has congress set “intelligible principle” for EPA? Intelligible principle test does not foreclose agency from

creating policy. Congress need not create formula, with agency

discretion limited to plugging in numbers. “A certain degree of discretion, and thus of lawmaking,

inheres in most executive or judicial action” can’t delegate pure legislative power

but discretion as part of admin function ok

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Mistretta v. United States (1989)

Penal remedies are set by congress Traditionally, congress delegates discretion to

judiciary to sentence within statutory rangeUS Sentencing Commission Delegated authority to create binding

guidelines Court must state reason for any departure

Is delegation to Comm’n excessive? Degree of generality: Congress needs only to

state an "intelligible principle" to guide agency's discretion Has it here? Or merely stated "purposes""purposes" and

asked the Commission to develop its own policies?

Does Mistretta overrule Schechter and Panama?

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Mistretta v. United States (1989)

In which branch of gov't is Com'n located? Executive branch?

President both appoints and removes members Gen'l rule: an agency is located in the branch with

the power of removal What problems if Com'n is "located" in exec branch?

Scalia problem: rule-making function is not "incident" to any executive function

but is it incident to judicial function? Judicial independence: can Art. III judges be assigned

to non-Art. III agency? Sentencing Commission is a hybrid

Located outside of all 3 branches Compare "Independent" agencies