American Trucking & Non-delegation Doctrine

1. American Trucking & Non-delegation Doctrine • 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” • Standards unquestionably leave a great deal of discretion to EPA to establish NAAQS for relevant pollutants • But scientific uncertainty re effects of exposure at specific levels isn’t uncommon. Leaving that sort of judgment to agency also isn’t uncommon. • DC Circuit’s approach requiring some sort of justification as to why a particular level chosen was better (more probably than not going to affect safety) than another level chosen may be asking too much of the agency given scientific uncertainty

2. American Trucking – Supreme Court • Only Congress (not an agency) can fix unconstitutional delegations. • Accountability concerns are especially acute when Congress takes credit for passing a law but then blames an agency for the faults associated with implementing it. Congress must provide a principle so that it is accountable at some level. • Agency rules giving content to a vague delegation are too easily repealed, leaving the delegation once again vague. • Why does SCT believe that the CAA provides an “intelligible principle”?

3. 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.

4. 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.

5. 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.

6. Congressional control of agency through revision of agency powers • Once Congress has delegated authority to an agency, it can always revise that authority if it is unhappy with the agency’s exercise of its powers: • Amend organic/enabling statute limiting agency’s authority • Enact a new statute directed to specific agency action • Problems – Both actions are cumbersome, subject to politics & time-consuming • Legislative Veto • Conditional grant of decision-making authority to an agency that gives one or both houses of Congress the ability to override the agency’s decision by resolution

7. Chadha v. INS Background • INA Sec. 244(a)(1) allowed AG/INS to suspend deportations of individuals even if deportation was otherwise legitimate. • Chadha was an East Indian resident of Kenya who entered the US on a UK passport under a student visa. He overstayed his visa and was eligible for deportation. • INS suspended his deportation due to extreme hardship. • Chadha had nowhere to go due to situation in Kenya and Britian’s actions. • After reporting suspension to House of Rep. under Sec. 244(c)(1), House voted to override INS suspension in the case of Chadha and five others pursuant to Sec. 244(c)(2).

8. Justice Burger’s reasoning on why legislative veto violated the Constitution: • Exercise of the legislative veto was “essentially legislative in purpose and effect.” • It “had the purpose and effect of altering the rights, duties and relations of persons, including the AG, Executive Branch officials and Chadha, all outside the executive branch” • When Congress exercises power that is quintessentially legislative in character it must meet the following requirements • Bicamerality (both houses must pass) • Presentment (to the President for veto/signature) • Article I, Sec. 7, cl. 2

9. Is Justice Burger’s definition of legislative power satisfying? • What does it mean to “have the purpose and effect of altering the rights, duties and relations of persons”? • Was the INS altering the rights of Chadha when it suspended his deportation? • Does the EPA (as in Am. Trucking) alter the rights, duties and relations of persons when it sets air quality standards? • So how should we characterize Congress’s decision to override the suspension of deportation – exercise of legislative, executive or judicial power?

10. Why weren’t the bicamerality and presentment requirements satisfied? • Wasn’t Sec. 244 (which gives House legislative veto) adopted pursuant to those requirements? • If so, should we complain about the House having the legislative veto? • If Congress can statutorily delegate authority to agencies to exercise legislative power (which they do without being subject to bicamerality/presentment) why can’t Congress enact a legislative veto provision?