Concepts and Rules Flashcards
Non-delegation
Constit. Art. I §1: Congress should legislate with respect to departments. Non-delegation is an invitation to understand that legislative controls agencies by framing what they can do (intelligible principle: dictating the term of their mandate).
Intelligible Principle
Hampton Case: Congress can create agencies that legislate as long as the grant of rule making power is accompanied by an “intelligible principle.”
=> This is a way of preserving the Constitutional form of government.
Exceed Delegated Authority
A. Subject Matter
B. Major Question Doctrine
Major Question Doctrine Applies
- Vast economic/political significance;
- Congress actively trying/failing to regulate;
- No expertise specific to the Agency;
- Federalism/state regulation;
- Unprecedented/ fundamental revision of the statute.
Major Question Doctrine
If there is a MQ = then there is a presumption that the Agency exceeded its authority. A clear articulation can overcome the presumption.
Clear Articulation (according to Gorsuch)
- interpretations in context of statute;
- age and focus in relation of problem (past actions);
- past interpretations by the agency;
- mismatch b/w action an assigned mission.
MQD Rationale
Self-government, accountability, delegation of power, preserve federalism and diversity. If Congress has to act, we get consensus and consistency.
Appropriations
Spending Bills under Art. I, § 8, cl. 1.
Robertson Case: the amending of substantive law through riders is constitutional even is if it is “re-writing” the enabling act.
Congress may amend an enabling act though riders b/c it is later in time and much more specific legislation (formalistic fulfillment).
Presidential Powers Considerations
- Important how duties are assigned to officers => enabling act => specific framing of policies;
- Given to agencies b/c of expertise and efficiency concerns;
- Independent v. Executive department, important because it decides how much politics influences it BUT also more politics = more accountability;
- Congress may split that within the enabling act: for example: rule making = executive, adjudication = independent.
Presidential Powers (Youngstown)
Jackson:
- Constitution + Approval/Mandate = Constitutional, easy test;
- Constitution + Silence/no mandate = Zone of Twilight, case by case assessment;
- Constitution + Contrary to the will of Congress = “lowers ebb” of President’s power: Foreign Affairs & Military
Executive Orders
There is some SCOTUS jurisprudence, but not much b/c of political question doctrine. Limited to:
- Employment conditions of agencies
- Purchasing and contracting of agencies
- Spending of agencies
Principle Officer
Appointed by: POTUS w/ Advice and Consent of Senate (Art. II § 2).
Characteristics:
- Discretion;
- Supervises;
- Has significant authority;
- Removal only according to rules below;
- Appointment by POTUS w/ A&C of Senate.
Inferior Officer
Appointed by: POTUS, Courts, Heads of Departments.
Characteristics:
- Less discretion;
- Is being supervised by PO;
- Less authority;
- Removal by superior officer;
- Can be appointed by POTUS, Courts, or HOD.
- Tax hearing officers are IO b/c they are exercising significant discretion. Freitag Case.
Employee
Appointed by: Agency employees/managers etc. (no special requirements).
Characteristics:
- Cannot make final decisions;
- No PO or IO;
- Appointment structure.
- Administrative judges = employees b/c they didn’t have authority to issue final decisions.
Ineligibility Clause
Art. I § 6 cl. 2
Congress cannot make executive position for themselves or voting for pay raise for office they are expected to occupy.
Incompatibility Clause
Art. I § 6 cl. 2
Separation of powers = disallowing Congress to fill positions in the executive branch.
Appointments
Depends on PO or IO, have to follow the Constitutional requirements, BUT Congress can create requirements/qualifications needed OR require something like partisan balance.
Removals Origin
How much removal does executive have? Not in the Constitution; residual authority that comes with appointment power. Court interprets this very formalistically.
Concerns: legitimacy/accountability vs independence (DOJ vs Federal Reserve).
Removals
- Saila Law Case: “For cause” restriction on removal in unconstitutional UNLESS
(1) multimember expert agencies that are quasi legislative/quasi adjudicative: tenure, staggered terms, non-partisan b/c the structure pointed toward independence and not executing, but ADVISING Congress; OR
(2) inferior officer + no policy making (would not impede on President’s power);
because it violates the SOP principle. - Free Enterprise Fund Case: double layer of ‘for cause’ removal is unconstitutional.
De Novo Review
De Novo, when no factual findings then there would be a reason for the court to step in and develop facts.
A & C Review Analysis
(1) Character of the Action:
Formal (556/557) or Informal (553/554)?
(2) What kind of action? Rulemaking:
- New Rule
- Rescission: State Farm; DHS
- Change: Department of Commerce (Pretext); FCC v. Fox; Prometheus
- Inaction: Massachusetts v. EPA
(3) Was a A&C?
- Data
- Explanation
- Connection
(4) Pretext?
Factors to consider for A & C
- Factors unintended by Congress?
- Fail to consider important aspect of the issue? (e.g. reliance)
- Offer an explanation that runs counter the evidence?
- Action so implausible that it cannot be attributed to difference in view or expertise?
Pretext pointers
- Explanation later
- Issues came up later (not until)
- Unstated explanation not enough
Inaction Review
It’s not obvious that 706(2)(A) should apply to A inaction b/c As benefit from discretion regarding their resource allocation, the court should be really hesitant before plunging in with 706(2)(A). We need a special reason: E.g.: a mandate of act and a petition system.
