Presentation Transcript

1. Congress & Its Relationship With Agencies To what extent does (can) Congress control the actions of agencies? Several mechanisms of control exist: Creation and empowerment Primary controversy – to what extent can Congress delegate its authority to agencies? Revision of agency’s existing powers (or exercise of power) Primary controversy – the legislative veto Appropriations (budgetary) authority over agencies Primary controversy – the line-item veto General Oversight
2. Controlling Agencies Via Creation & Empowerment – The Constitutional Issues Raised By Delegation Assume Congress created a commission called “Congress Lite,” consisting of 12 randomly chosen people, and then delegated to that commission all of its powers under Article I of the Constitution (see pp. 887-91), after which it recessed for the rest of the session. Is this delegation of congressional authority constitutional? Why or why not? How is this problem different from creating an agency (EPA, OSHA, IRS, . . .) and delegating it the authority to enact regulations to enforce a vaguely worded congressional statute?
3. SCT and Non-delegation Doctrine “That Congress cannot delegate its legislative power . . . is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark, 143 US 649 (1892). But even before Field, SCT upheld delegations of congressional authority (see pp. 16-17): The Brig Aurora, Wayman, & Field - all reasoned that the power delegated was not wholesale legislative authority but primarily “fill-in-the-blanks” authority that was reasonably constrained by the statutory directive In other words, there was no delegation of wholesale policy-making authority. Post-Field, SCT has acknowledged that Congress can delegate policy-making authority BUT only if they provide an “intelligible principle” to guide the delegee’s discretion. Hampton & Co. v. United States, 276 U.S. 394 (1928)
4. What is an “intelligible principle” by Congress? SCT hasn’t given much guidance. Later cases give some content to the intelligible principle standard but it’s the subject of a lot of debate: “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).
5. Schechter Poultry – the delegation problem NIRA of 1933 was a response to the economic emergency associated with the Great Depression Brainchild of President FDR (part of his First 100 Days plan) but Congress passed it easily w/in month of its introduction Law was a series of compromises designed to make parties happy (big & small business, labor) but ended up making almost nobody happy 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 general goals (policy) were: (1) remove obstructions to the free flow of interstate and foreign commerce, (2) eliminate unfair competitive practices, (3) increase the consumption of industrial and agricultural products by increasing purchasing power, (4) reduce and relieve unemployment , (5) improve standards of labor. Schecters were convicted under the Live Poultry Code enacted under Section 3 of NIRA (which incorporated Sec. 1)
6. Schechter Poultry– Why was the delegation unconstitutional? NIRA § 3 gave President the authority to approve “codes of fair competition” for trades and industries if they met certain conditions. What were they? 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? What kind of discretion does the President have to approve codes of fair competition as compared to earlier cases? Aside from the breadth of the delegation, what concerns the Court about the delegation?
7. The Supreme Court’s Post-New Deal Delegation Cases In years after the New Deal, SCT has arguably been more lenient in its willingness to uphold broader delegations of legislative authority. Thus SCT upheld delegations, that included grants of power: FCC may grant broadcast licenses “if public convenience, interest or necessity will be served.” 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.” It’s not entirely clear why the SCT backed off of it’s trend in Panama Refining, Schechter& Carter Coal: Pragmatism – rise of the administrative state Threats from FDR to pack the Court with favorable Justices Delegations in the above cases (especially Schechter& Carter) really were some of the worst
8. Modern Issues WithDelegation It’s common to say that the post-New Deal cases reflect that the non-delegation doctrine is effectively “dead.” SCT has not struck down a statute on delegation grounds since the Panama Refining/Schechter/Carter Coal trilogy. BUT there continue to be delegation challenges that SCT accepts so it’s always possible that SCT will strike something down. Also, SCT has (1) refined its doctrine in the last few decades, and (2) used the non-delegation principle in other ways (besides striking down a statute)
9. Industrial Union Dept v. API (the Benzene Case) OSHA § 3(8) – SOL standards must be “reasonable and appropriate to protect worker safety. OSHA § 6(b)(5) – SOL must select standards 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), SOL established a standard of 1 ppm benzene/air Industry actors challenged the standard as violating § 3(8) - i.e., requiring a cost-benefit analysis of the standard Why does SCT plurality think that § 6(b)(5) might be unconstitutional? How does it resolve that problem?