Congress’s role with respect to administrative agencies

1. Congress’s role with respect to administrative agencies • Constitution vests each branch of government with respective powers – legislative, executive, judicial • This is part of the overall framework of separation of powers that keeps any one branch from aggrandizing power in itself • Other specific provisions also serve this function – especially in the checks/balances that each branch operates on others • Non-delegation doctrine requires Congress to provide an “intelligible principle” to any agency to which it delegates authority • SCT’s doctrine allows delegations of fair amount of legislative-like power to agencies (executive branch) • But “intelligible principle” requirement serves some sep’n of powers function by at least requiring Congress to tell agency in what direction it should go • Provides agency some guidance (prevents unchecked exec. authority) • Allows judges to determine if agency is following Congress’s will (different kind of check)

2. Congressional control of delegations 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 • 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

3. INS v. Chadha -- Background • INA § 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. • INS immigration judge found him eligible for deportation during a hearing but suspended his deportation due to extreme hardship. Sec. 244(c)(1). • Chadha had nowhere to go due to situation in Kenya and because of Britain’s actions. • After reporting suspension of his deportation 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).

4. 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 quintessentially legislative power it must meet the following requirements (which it didn’t here) • Bicamerality (both houses must pass) • Presentment (to the President for veto/signature) • Article I, Sec. 7, cl. 2 & 3

5. 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 Chadha’srights when it suspended his deportation? What about the EPA (in Am. Trucking) when it sets air quality standards? • What about a judge who orders a non-custodial parent to pay child support – does that “have the purpose and effect of altering the rights, duties and relations of persons”? • Would it have been better to characterize Congress’s decision to override the suspension of deportation in a different way?

6. Legislative veto as congressional self-delegation • Even if Justice Burger is right and Congress is exercising quintessentially legislative power, why does Congress need to satisfy the bicamerality and presentment requirements in this instance: • If Congress can delegate legislative authority to an agency, why can’t it delegate to a portion of itself the authority to veto agency action – especially if the statute giving it that authority was passed consistent with the bicamerality and presentment requirements of the Constitution? • Is there a difference between Congress and agencies in this regard?

7. Ways aside from the legislative veto that Congress can control delegations: • Contract with America Advancement Act (pp. 49 & 997) • Agencies must submit all rules to Congress. Rules except “major” rules go into effect. Latter are under 60-day stay pending resolutions discussed below. • Major rules are subject to disapproval by a joint resolution filed w/in 60 days that satisfies bicamerality & presentment req’mts. Resolutions are retroactive. If no disapproval by Congress w/in 60 days the rules go into effect. • If disapproved, agency cannot submit new rule in same form unless a new law authorizes it. • Joint Select Comm. on Deficit Reduction (aka the Super Committee) • Budget Control Act gave the 12-member committee power to enter into proposals re budget cuts. • Proposal went to House/Senate for a vote (bicamerality) but there can be only limited debate/no amendments (Art. I, §5, cl.2 allows these restrictions) & then it went to President if approved (presentment) • If committee couldn’t agree on proposed budget cuts, automatic cuts that were in the original legislation were to occur on 1/1/13.

8. Controlling agencies through the appropriations process • In what ways can Congress use its budgetary authority to influence agency action? • Consider the OSHA ergonomics regulation issue at p. 52. • Whywould Congress want to constrain OSHA’s ability to enact ergonomics regulations through a budgetary rider rather than through a regular law? What are the disadvantages here? • Consider what an appropriations bill looks like & how appropriations works: • http://thomas.loc.gov/cgi-bin/query/D?c112:1:./temp/~c112otAuPM::

9. The Line Item Veto – attempting to control the appropriations process (and its attempt to control agencies) • Line Item Veto Defined: Power of the executive to nullify specific provisions of a bill (usually budgetary appropriations) without nullifying the entire legislative package. • What are the purposes of giving the president a line item veto as opposed to the presidential veto contained in Art. I, Sec. 7, cl. 2?

10. Clinton v. New York • LIVA, 2 USC § 691: • Gave President ability to cancel specific appropriations & tax benefits provisions w/in 5 days of law’s enactment w/ certain conditions: • Must identify items for cancellation after considering legislative history, the purposes of the items to be cancelled and other relevant information, • Must determine that cancellation will reduce federal budget, not impair essential gov’t functions, and not harm the national interest • In message accompanying veto sent to Congress, President must identify reasons for cancellation • Congress may enact a “disapproval bill” (enacted pursuant to Art. I, Sec. 7, cl. 2 procedures except that it can occur on an expedited basis) that reverses this cancellation • What does the majority rule generally regarding the constitutionality of LIVA? What is its reasoning?

11. Why isn’t this just a delegation issue as the dissent claims? • Faced with two potential precedents, SCT majority chose the Chadha route – Constitution has clear requirements regarding “repeal” of legislation and the President didn’t follow them. • Why didn’t SCT just use it’s delegation authorities to decide the issue? • Why shouldn’t we treat this as a delegation to the President of the power to cancel certain appropriations an tax benefits rather than as a violation of Art. I, Sec. 7, cl. 2? • Is this a delegation of power by Congress to Congress as in Chadha? • Does the text of the Constitution prohibit line-item vetoes? • Is the power to cancel the effect of a law any different from the power given to the President in Field v. Clark? • So why arewe so concerned about delegation of this kind of authority?