Chapter 2

1. Chapter 2

2. The Delegation DoctrineJust History – So Far This played out during the mid-1930s when Congress created several new agencies to fight the Depression. The Switch in Time that Saved Nine.

3. Learning Objectives – Delegation Doctrine • Why did this become an issue in the 1930s? • What were the delegations that the Court was concerned with? • What would be the impact on government function if the court had persisted in finding delegations unconstitutional? • How did the court change its analysis of these cases to solve the delegation issue?

4. What is the Delegation Doctrine Problem? • Can Congress delegate legislative or judicial power to an executive branch agency? • The Constitution is silent on this issue. • The United States Supreme Court initially found such delegations to violate separation of powers and struck down several pieces of New Deal legislation.

5. Shifting the Question • Did Congress sufficiently direct the agency in the law delegating the power so as to limit the agency’s actions to those that would not violate separation of powers? • The judicial review question: • Does the statute provide enough guidance for the court to review the agency actions to assure that they comply with Congressional intent? • The "intelligible principle" test. • This is all you need to know about the history

6. "Intelligible Principle" - Rulemaking • 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 • Under the old version of the delegation doctrine, the law was unconstitutional without regard to whether there was sufficient guidance to the agency. • Now the court will review the law and look for a standard to review the agency’s actions. • In practice, the court does not need to find much.

7. What is an Intelligible Principle? • 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

8. Delegation Doctrine - Adjudications • Old test was public versus private rights • New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986) • [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?

9. Judicial Review as a Check on Delegated Powers • There is a right of judicial review of rules to determine if the agency has the legal authority to issue them and if they properly supported by the record. • There is a constitutional right to due process protections in adjudications, and usually a right to judicial review of the decision. • As we will see, Congress can limit judicial review in some circumstances.

10. Practical Considerations • 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 • There are state law fights over this - Wooley • There are limits on the transformation of criminal matters into 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 • Administrative detentions are OK, but not for punishment • Tuberculosis, denial of bail, mental health commitments • Guantanamo Bay detentions are administrative