Congress and the Non-delegation Doctrine

1. Congress and the Non-delegation Doctrine • Congress cannot delegate wholesale policy-making authority • SCT requires Congress to provide an “intelligible principle” • Constitutional concerns with wholesale delegations: • Accountability – legislative power is vested in Congress (Art. 1 Sec. 1) and Congress needs to exercise that power at some level • Separation of powers – delegation of too much lawmaking authority to an entity with other powers (executive or judicial) will cause aggrandizement of power and thwarts effective checks and balances by the three branches of government • Modern SCT still allows a lot of delegation under the “intelligible principle” approach although it uses non-delegation doctrine to rein in agency discretion short of striking down law

2. Industrial Union Dept v. API (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 if read in isolation? • How does it resolve that problem?

3. American Trucking – Background on Clean Air Act & EPA regs • Clean Air Act (“CAA”) directed EPA to establish: • Primary “ambient” air quality standards that in the EPA administrator’s judgment, “are requisite to protect the public health” with “an adequate margin of safety” and • Secondary “ambient” standards that in the EPA administrator’s judgment, “are requisite to protect the public welfare from any known or adverse effects associated with the presence of such air pollutant in the ambient air” • Problem – Scientists have not identified precise effects of pollutants or “threshold levels” at which negative effects occur • Congress also did not give much guidance re these issues • EPA regs implemented the CAA and set the amount of ozone and particulate matter at .08 ppm using the following criteria: • Nature/severity of health effects involved • Size of sensitive population at risk • Types of health information available • Kind and degree of uncertainties

4. American Trucking – DC Circuit • Why does the DC Circuit believe that there has been an unconstitutional delegation? • Did the Court think the agency could have come up with factors to adequately cure the problem? • Why does Judge Tatel disagree with the majority about the constitutionality of the delegation?

5. American Trucking – Supreme Court • How does the Court respond to the notion that an agency can cure an otherwise vague (unconstitutional) delegation? Why? • Does CAA believe that the CAA gives the agency a lot of discretion to set exposure levels? • Why does SCT believe that the CAA provides an “intelligible principle”?

6. American Trucking - Variable Discretion in Delegations • SCT notes that “the degree of agency discretion that is acceptable varies according to the scope of power congressionally conferred.” • Example – Regulation of “country elevators” • Congress can give EPA a lot of discretion (i.e., needs to provide no direction) to define what these are for purposes of exempting them from the definition of “stationary source” regulations applying to grain elevators under the CAA • Example – Regulation of air quality standards affecting entire national economy • Congress must provide substantial guidance as to relevant criteria and industries affected, etc.

7. Costs & Benefits of Delegation • Benefits • Costs

8. A Brief Detour Through State Constitutional Delegation Doctrine • 3 general approaches among the states • Weak anti-delegation principle: Delegation is okay as long as the agency exercising power has adequate procedural safeguards in place. • Strong anti-delegation principle: Legislature must spell out reasonably clear standards or guidelines for agencies to follow • Moderate anti-delegation principle: Degree of standards necessary to make delegation acceptable varies with the subject matter of the statute and the other procedural safeguards present.

9. Missouri and Delegation • Missouri falls into the 3rd category of states in terms of delegation principles: • Menorah Med. Ctr. v. Health Educ. Facility Auth., 584 S.W.2d 73 (Mo 1979): Legislative standards must guide agency discretion, but exceptions apply where it is impracticable, or delegation relates to protection of public morals, health, safety, and general welfare, or where personal fitness is a factor for agency consideration.