[2] Delegation Flashcards
How to exercise legislative authority?
- Promulgation of rules
- Rules have force and effect of law if administrative agency follows procedures set forth in Administrative Procedures Act (APA) to promulgate a rule.
Policy reasons to delegate?
- Congressional efficiency
- Agency expertise
- Always remember that legislative authority is vested in Congress through the Constitution.
Delegations struck down (2 Cases)
- Panama Mining Case: Congress gave President power; yet this was struck down because it gave the POTUS too much power.
- Schecter: Authority to approve codes of fair competition, violations punishable by penalty, struck down because of unlimited authority of President and no standards.
Valid delegation requirements
- Must provide standards to guide conduct; if there are none; then invalid delegation.
- Must provide “intelligible principles” in the standard to guide delegation. These principles must have public policy direction given to executive agency. It is okay for these directions to be broad.
Valid delegation requirements: Example
Delegation to the Department of Homeland Security:
- DHS authorized to “keep citizens safe” and promulgate rules to that effect.
Question: How specific does Congress have to be in their requirements and instructions with the delegation?
- Must be intelligible principles (ie: specific policy of Congress) for delegation to be valid and must articulate policy that Congress wants the agency to follow. (Policy articulated through express language or through legislative history in context of legislation).
Intelligible Principles:
Mistretta v. US
Power to sentencing guidelines
Facts: People getting inconsistent sentencing provisions; therefore, Congress felt it prudent to set up a commission that made sure people convicted of the same crime were getting similar sentences.
Rule: Congress can delegate authority; so as long as Congress makes sure that the agency knows what it’s being told to do (through intelligible principles).
Rationale: In having intelligible principles, agency can act within them and further congressional intent.
- Here: Congress gave good sufficient guidelines so that agency can look to specific criteria when imposing sentences.
Holding: Clear intelligible principles and agency, through its actions, were gap filling through its discretion of following such principles.
Dissent: Scalia
- This was pure legislative authority exercised by the agency and this can only be done when it is incidental to their authority.
Intelligible Principles:
EPA Line of Cases:
1. American Trucking Association v. EPA
2. Whitman v. EPA
- American Trucking Association v. EPA
- Court found delegation of authority unconstitutional because not sufficient standards or intelligible principles to guide the EPA conduct.
- Guidelines were too loosely drafted because it didn’t give sufficient guidance. - Whitman v. EPA
- Court found intelligible principles to be okay and reversed. The question was whether court laid down intelligible principles.
- Section 109: There were intelligible principles and Section 109 shows a discrete set of pollutants.
Holding: Sufficient intelligible principles; whereby, the EPA must establish uniform national standards at a level that is requisite to protect public health from adverse effects of pollutants in the air.
TAKE HOME MESSAGE: Congress must give agency a set of intelligible principles for guidance. Such principles can be a broad recitation of public policy and let agency use expertise to fill in the blanks.
Intelligible Principles:
Individual Rights or Liberties
Intelligible Principles that involve individual rights or liberties must be more specific.
- Delegation must be proper; however, the agency cannot exceed its scope.
- Court may be more critical of Congress’ delegation and more protective of Congressional Constitutional requirement.
State Delegation:
Case: State v. All Pro Paint and Body Shop
Procedural: Reversal of lower court decision that legislative authority delegation to executive branch agency to define a felony was not an appropriate delegation.
Fact: Agency action was in the definition of a felony; which involved the definition of paint thinner as hazardous waste; meaning if you violate that law, you commit a felony.
- The action was structured where paint thinner would be constituted as being hazardous waste, which is a violation, leading to 15 years of hard labor.
Rule: There must be a clear expression of policy, sufficient standards, and safeguards (rulemaking requirement of APA and judicial review)
D Argues: Can’t delegate authority to agency to define hazardous waste because that means you are letting the agency define what a felony is.
Holding: Congress did not delegate the authority to create a felony.
Test for Constitutional Validity of Valid Delegations
Enabling statute contains clear expression of policy even when broad.
- Sufficient standards present
- There are adequate safeguards.
Michigan Test for Valid Delegation
- Read statute as a whole
- Determine if standards are reasonably precise as subject matter permits
- Construed as valid if possible.
Delegation of Judicial Authority:
Exercise of Judicial Authority by Executive Agency (Article 1 Court)
Types of cases that cannot be heard by an agency are:
- Criminal Cases
- Constitutional law cases
- Rights to jury trials
- Equitable remedy
- 7th Amendment implication at suit at common law producing a right to jury trial in an article 3 court.
Remedies
- Legal damages ($) can be delegated to non-article 3 courts so long as generally, it is dealing with public rights.
- Example: Public right; created by Congress. Private right: cause of action between two parties not involving the government. - Legal and private rights are in the power of article 3 courts to preserve the right to a jury trial.
Guidelines for Proper Delegation
Must have judicial review, if Congress delegates authority to agency so there is no separation of powers issue.
Guidelines for Proper Delegation: Case
Thomas v. Union Carbide Case
Thomas v. Union Carbide Agricultural Products
Facts: People register pesticides with EPA under an act. EPA allowed for pesticide equivalent of generic drugs. Monsanto sues EPA who made them publicize their trade secrets which they claim as being a taking. Congress comes back and says that EPA should make administrative decision about how much money these manufacturers should get for damages from loss of trade secrets. Union Carbide sues staying that these decisions should be made by judicial court and not administrative agencies.
Holding: Right is public when it could be adjudicated by Administrative Agency.
- “Public” if integral to public regulatory system.
- Regulation of dangerous pesticides is comprehensive regulatory scheme that had public purpose; thus, damages from loss of trade secrets is public right, and can be adjudicated by EPA.
