Powers of agencies, nondelegation, and feeshifting Flashcards
What are the two approaches to nondelegation
Formalist approach (old and disfavored)
Functionalist approach
What rule determines if something is nondelegation
Whether there is an “intelligible principle” - courts will go out of their way to find one and use to frame a “constitutional avoidance” doctrine analysis
What are some cases about “intelligible principle”
- Ex) WHITMAN - NAAQS under the CAA – “public health” is enough – but Scalia says it is on a sliding scale where more agency power = more intelligible principle needed (forerunner to maj questions?)
- Benzene case – when agency exceeds intelligible principle can challenge and will use the “intelligible principle” to frame it. Any cancer rate = bad is against the intelligible principle–i.e. will used this principle to avoid constitutional problems
How to interpret an “intelligble principle” analysis
Use statutory structure of the legislative intent
Can you delegate authority to a private party
NOPE
Judicial nondelegation principle
Is this something that the government has created? Public right vs private right- if public right than they can create it that does not let you sue about it OR that lets you sue about it but only in a limited wayh
How do you tell if something is a public right vs a private right?
Two key inquiries: Is this an “article III”-like case, i.e. constuttional type issues that would be made unreviewable;
OR did the parties CONSENT to the administrative law decision – i.e. they have “waived” their private right or consented or w/e
What are the limits of congressional review of an agency
Laws giving Congress ability to review rules are unconstitutional b/c they violate “bicameralism and presentment” under INS v Chadha – i.e. the constitutional steps that cannot be skipped (2 Congresses plus President or 2 congresses + veto + veto override)
Same would apply if Congressional approval would be required before they are promulgated
But see – “intelligible principle” conversation above – if the Executive has an intelligible principle than the delegation is okay
What are the two categories of agency power
Power to:
(1) search and inspect
(2) have regulated entities report or keep records
What are the limitations on an agency’s ability to search and inspect
1) Congress must authorize via statute
2) 4A concerns – must be (a)particularized (b)reasonable and (c) based on probable cause – but subject to exceptions
What are the exceptions to 4A concerns of an agency’s ability to search
General exceptions under 4A - consent - no reasonable expectation of privacy
Specific exception - “pervasively regulated entities”
When are general warrants surprisingly okay
Generally unconstitution but okay if:
1) prospective
2) neturally applied (think OSHA random inspection)
3) has some interla process
What limitations is an agency subject to for general v specific inspection
If general inspection is limited to the plan; if there is a complain leading to probable cause will be limited to the particularized warrant (cannot do a spot general inspection)
What remedies exist if an agency illegitimately searched an entity
1) exclusionary rule - rare in admin law because little deterent effect–would need to be quite egregious
2) Bivens action for money
What are the recordkeeping/recording requirements and how did Congress limit them
Subpoenaes must be express
- must promulgate the recordkeeping rules in FR - subject to the PRA
