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. Controlling Agencies • 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: • To what extent can various branches of the government delegate their powers to agencies? • To what extent must those branches exert some control over the exercise of their powers?

3. Congress & Delegation • 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 it recessed for the rest of the session. • Is this delegation of congressional authority constitutional? Why or why not? • What is the concern with such delegations?

4. SCT and the non-delegation doctrine • 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 congressional authority : • The Brig Aurora, Wayman, & even Field – delegated power was not wholesale legislative power but “fill-in-the-blanks” authority that was constrained by the statutory directive • There was no delegation of wholesale policy-making authority. • SCT has since said 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 (p. 17)

5. What is an “intelligible principle” by Congress? • The “intelligible principle” standard still governs the constitutionality of delegations today. • SCT hasn’t given much guidance as to its meaning. A reasonably-often cited guideline by the Court: • “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).

6. Schechter Poultry – the delegation problem • 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 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)

7. 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 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?

8. The Supreme Court’s Post-New Deal Delegation Cases • In years after 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.” • 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.” • Why might SCT have upheld those delegations after striking down the delegations in Schechter, Panama Refining & Carter Coal?

9. Industrial Union Dept v. API (the Benzene Case) – p.21 • OSHA § 3(8) – Secy’sworkplace 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 • Industry argued the standard 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?

10. American Trucking – Background on CAA & EPA regs • Clean Air Act (“CAA”) directed EPA to establish: • Primary “ambient” air quality standards for 5 pollutants 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 other than that EPA cannot take cost into account when setting the standard • EPA regs implemented the CAA and set the amount of ozone and particulate matter at .08 ppm over 8 hours 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

11. American Trucking – non-delegation revisited • Why does the DC Circuit believe that the CAA violates the non-delegation doctrine? • Why does SCT believe that the CAA provides an “intelligible principle”? • Who has the better argument?

12. Agencies curing unconstitutional delegations? • How does the Supreme Court respond to the notion that an agency can cure an otherwise vague (unconstitutional) delegation? • Why aren’t agency promulgated standards – if they are sufficiently clear & provide some rules to which the agency must adhere – sufficient to cure a delegation? • What if Congress delegated to the Secretary of Treasury the power to set and revise marginal tax rates?