Agencies & the Three Branches of Government

1. Agencies & the Three Branches of Government Where do agencies fit within these three branches? What is the significance of the “vesting clauses” (Sec. 1 of Arts. I, II, & III of the Const.), vesting relevant authority in each requisite branch of government? Does that mean agencies cannot exercise any of those powers?

2. Assuming we accept the constitutionality of the very existence of agencies - which almost everybody seems to have done, we must deal with the following questions: • What IS the relationship between the various branches of the government and any given agency? • To what extent can/must/should those branches exert some control over the exercise of agency powers? • We will look at Congress first. Relationship of Agencies to Congressional, Executive and Judicial Branches

3. 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? • What does such a delegation concern us? Congressional delegations of congressional power

4. Field v. Clark(p. 16) – 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 & even Field (pp. 16-17) – the delegated power involved “fill-in-the-blanks” authority that was constrained by the statutory directive • Not a delegation of wholesale policy-making authority. • SCT has since said that Congress can delegate policy-making authority BUT only if it provides an “intelligible principle” to guide the delegee’s discretion. Hampton & Co. v. United States (p. 17) SCT and the non-delegation doctrine

5. 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 is: • “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). What is an “intelligible principle” by Congress?

6. NIRA of 1933 was a response to the economic emergency associated with the Great Depression • Brainchild of President FDR but Congress passed it easily w/in a month • 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 goals/policy were: (1) remove obstructions to the free flow of interstate & foreign 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 • Schecters were convicted under the Live Poultry Code issued under NIRA ' 3, which incorporated ' 1 and also set minimum pricing/health standards Schechter Poultry – the delegation problem

7. NIRA § 3 gave President the authority to approve “codes of fair competition” for trades and industries if they met certain conditions. What were the conditions? • 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 its breadth, what concerns the Court about the delegation? Schechter Poultry – Why was the delegation unconstitutional?

8. 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. • 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 these rules. The Supreme Court’s Post-New Deal Delegation Cases

9. 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? • How does it resolve that problem? Industrial Union Dep’t v. API (the Benzene Case) – p.21 – delegation principles as an interpretive tool

10. Did Congress provide an intelligible principle that guides the BTC when it enact rules or has it given the BTC nearly unfettered policy-making discretion? • What are the primary provisions of the BTCA giving the BTC substantive authority to regulate? • How vague/specific are they? • What authority to enact rules does the BTCA give the BTC? Congress’s delegation of authority to the Beer Trade Commission