Agencies & the Three Branches of Government

1. Agencies & the Three Branches of Government • Do the vesting clauses mean that only each branch can exercise the relevant vested authority (e.g., leg, exec, judicial) – i.e., does the constitution contemplate that agencies can ever exercise such authority? • Conventional Wisdom: Agencies can exercise some these powers (within reason) • Art I, Sec. 8, cl. 18 – allows Congress to make laws “necessary and proper” to carry out its powers • Art II, Sec. 2, cl. 2 – Pres. Appointment clause clearly contemplates the existence of Dept’s and Officers

2. Relationship of Agencies to Congressional, Executive and Judicial Branches • Assuming that agencies can exercise the powers of various branches of government: • What is the relationship between the various branches of the government and any given agency? • In what manner and to what extent can/must/should the various branches exert some control over agencies when they exercise those powers? • We will look at Congress and the issue of delegation of legislative power first.

3. Congressional Delegations of Congressional Power Assume Congress created a commission called “Congress Lite” consisting of 12 randomly chosen people, and delegated to that commission all of its powers under Article I of the Constitution, after which Congress recessed for the rest of the session and allowed Congress Lite to enact laws, etc. • Is this delegation of congressional authority constitutional? • Why does such a delegation concern us? • Is it appreciably different for Congress to delegate power to the EPA to enact regulations “for the good of the environment.”

4. SCT and the non-delegation doctrine – the history up to Schechter Poultry • Field v. Clark – Congress cannot delegate “legislative power” per Article 1, sec. 1 vesting clause. • But prior to Field, SCT upheld delegations of some kinds of congressional authority : • The Brig Aurora, Wayman & Field – the delegated power involved “fill-in-the-blanks” authority that was constrained by the statutory directive • Not delegations of wholesale policy-making authority or were delegations of legislative authority attendant to exercises of other power. • SCT has since said that Congress can delegate policy-making authority IF it provides an “intelligible principle”to guide the delegee’s discretion. Hampton & Co. v. United States

5. What is an “intelligible principle” by Congress? • The “intelligible principle” standard still governs the constitutionality of delegations today. • SCT hasn’t given much guidance but one reasonably-often cited guideline by the Court to determine when there is NOT an intelligible principle: • “It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of [agency] judgment. . . . Only if we could say that there is an absence of standards for the guidance of the [agency’s] action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would [there be an unconstitutional delegation].” Yakus v. United States, 321 US 414 (1944).

6. Schechter Poultry – the delegation problem • NIRA of 1933 was a response to the economic emergency associated with the Great Depression • NIRA § I declared a “national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people.” • NIRA’s goals/policy: (1) remove obstructions to flow of commerce, (2) eliminate unfair competitive practices, (3) increase the consumption of industrial/agricultural products by increasing purchasing power, (4) reduce & relieve unemployment , (5) improve standards of labor • Hoped to achieve these goals by adopting wage price and production codes – See,e.g., NIRA § 3 allowing codes of fair competition • Schecters convicted under the Live Poultry Code issued under NIRA §3, which incorporated § 1 and set minimum pricing/health standards

7. Schechter Poultry – Why was the delegation unconstitutional? • What were the conditionsin NIRA § 3 re the President’s authority to approve “codes of fair competition” for trades and industries? • Did NIRA define “fair competition” so as to give an “intelligible principle”? • Could we use the common law definition (misrepresentation or misappropriation) to give the statute meaning? Why might that be problematic? • What kind of discretion does the President have to approve codes of fair competition as compared to earlier cases? • Aside from its breadth, what concerns the Court about the delegation?

8. The Supreme Court’s Post-New Deal Delegation Cases • Since the New Deal, SCT hasbeen more willing to uphold broader delegations of legislative authority. SCT upheld delegations including: • FCC may grant broadcast licenses “if public convenience, interest or necessity will be served.” Purpose of the Act was to “provide fair, efficient, and equitable distribution” of radio service to States/localities. NBC v. U.S. • Fed. Price Administrator shall fix prices at the level which “in his judgment will be generally fair and equitable and will effectuate the purposes of the Act.” [i.e., to control runaway rents/prices and prevent speculation]. Yakus v. U.S.

9. Why the change in SCT’s attitude toward delegations? • Possible reasons for SCT’s willingness to uphold broad delegations of rulemaking and policymaking authority include: • Historical – Roosevelt’s relationship with the SCT • Practical– Can we dismantle the administrative state now? • Practical– Congress probably can’t issue all of the rules necessary to effectively implement a statute. • Compare Schecterdelegation to delegations on previous slide: • Delegations in Yakus& NBC were either more industry specific, item specific or triggered by specific event (like runaway prices) … • Delegated power exercised solely by public officials who had expertise in a particular area • Delegation was not exercised by the President (no expertise) or industry (private entities)

10. Industrial Union Dep’t v. API (the Benzene Case) –delegation in the modern SCT • OSHA § 3(8) – Secy’s workplace safety standards must be “reasonable and appropriate” to protect worker safety. • OSHA § 6(b)(5) – Sec’y must select standard re toxic substances that “most adequately assures, to the extent feasible that no employee will suffer material impairment of health or functional capacity.” • Airborne benzene – no safe level of exposure is known to exist (i.e., safe level of exposure is uncertain) but it is a known carcinogen at high levels • Pursuant to § 6(b)(5), Sec’y established a standard of 1 ppm benzene/air, which industry argued violated § 3(8) because Sec’y did no cost-benefit analysis. Question of 6(b)(5)’s constitutionality came up. • Why does SCT plurality think that § 6(b)(5) might be unconstitutional?

11. Using delegation principles as an interpretive tool: • How does the Industrial Union plurality deal with the potential unconstitutionality of Sec. 6(b)(5)? • Does it strike down the statute as an unconstitutional delegation? • What does it do instead? • SCT and lower courts regularly use the delegation doctrine as a canon of construction. Potential problems with delegation may be a reason for the court to interpret narrowly a particular term or add language that will narrow the reach of the statute.