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Congressional Power and Delegation. Ambrose Bierce The Devil’s Dictionary EXECUTIVE, n. An officer of the Government, whose duty it is to enforce the.

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Presentation on theme: "Congressional Power and Delegation. Ambrose Bierce The Devil’s Dictionary EXECUTIVE, n. An officer of the Government, whose duty it is to enforce the."— Presentation transcript:

1 Congressional Power and Delegation

2 Ambrose Bierce The Devil’s Dictionary EXECUTIVE, n. An officer of the Government, whose duty it is to enforce the wishes of the legislative power until such time as the judicial department shall be pleased to pronounce them invalid and of no effect.

3 McCulloch v. Maryland Congress created 1 st Bank of United States in 1791, charter expires in 1811 Creates Second Bank of the United States in 1816 b/c of debt from War of 1812 Bank unpopular in South and West for keeping down inflation

4 McCulloch v. Maryland Maryland passes law taxing all banks not chartered by state $50,000 Only non-state chartered bank is Bank of US

5 McCulloch v. Maryland Two Questions: 1.Can Congress charter a bank? 2.Can a state tax an instrument of the federal government?

6 South Carolina v. Katzenbach, p. 173 South Carolina challenges Congressional authority to pass Voting Rights Act under the 15 th Amendment. Key argument is whether federal government is composed of limited powers delegated by states Act treats So. Carolina and similar states differently from other states

7 Reasons for Delegation Expertise Time and timeliness Political Cover pass tough questions to others

8 Problems with Delegation Legislative Deference Informational Asymmetry

9 Wayman v. Southard (1825) Congress gave courts power to prescribe judicial procedures. CJ Marshall writes: "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."

10 Non-Delegation Doctrine delegata potestas non potest delegari delegated powers may not be delegated (again)

11 Traditional Model People (Sovereign)Legislature (Values)Agency (Expertise)

12 J.W. Hampton v. U.S. (1928) The Tariff Act of 1922 gave Tariff Commission authority to set customs duties on imported commodities Tariffs were to equal difference between average price of imports and average price of domestic product T= P i -P d

13 J.W. Hampton v. U.S. (1928) Supreme Court declares: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

14 Schecter Poultry v. U.S. National Industrial Recovery Act is attempt to build regulatory state out of nothing Act attempted to restrict supply of goods to raise prices to end deflation, sustain business profits/living wages

15 Schecter Poultry v. U.S. National Industrial Recovery Act is attempt to build regulatory state out of nothing Act attempted to restrict supply of goods to raise prices to end deflation, sustain business profits/living wages

16 Panama Refining Co. v. Ryan, p. Also known as the Hot Oil case Roosevelt Administration, under the National Industrial Recovery Act, prohibit interstate trade in petroleum goods produced in excess of state quotas

17 Pluralist Model Constituencies Legislature (Mediating among Constituencies) Agency (Mediating among Constituencies)

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23 Patient Protection and Affordable Care Act of 2010 Includes over 40 different rulemaking requirements for FEDERAL agencies Requires STATES to engage in rulemaking for insurance exchanges and low income and high risk insurance pools

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25 American Financial Stability Act of 2010 (Dodd-Frank) Title VII delegates power to regulate credit default swaps to BOTH the SEC and CFTC. Agencies must consult with each other – and the Federal Reserve in any rulemaking.

26 Industrial Union Dept. v. American Petroleum Institute Benzene is essential part of petroleum and a known carcinogen Workers at refineries, chemical plants exposed to benzene on continual basis There is no known “safe” level of benzene

27 Industrial Union Dept. v. American Petroleum Institute OSHA mandated to regulate workplace hazards by setting the “standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity”

28 Chevron v. N.R.D.C. Clean Air Act provides EPA with authority to regulate stationary source pollution Question: What counts as a single source: refinery or smokestack?

29 The “Chevron Two Step” 1. “If intent of Congress is clear … court as well as agency must give effect [to it] 2. If not, question “is whether agency’s answer is based on a permissible construction of the statute”

30 INS v. Chadha Can Congress delegate and maintain control at same time? Immigration and Naturalization Act of 1952 delegates authority over deportations to Attorney General Congress maintained ability for single house resolution to overturn AG decision

31 INS v. Chadha Purpose of legislative veto: – Require executive accountability – Allow Congress to reverse wrongful decisions

32 INS v. Chadha Chadha was man without country. Born in Kenya, expelled with Indian parents, travels on British Commonwealth passport Lived in US since 1966, married to US citizen, with two daughters who are citizen Not clear why House vetoed suspension of deportation, no record of debate or vote

33 INS v. Chadha In ten years before Chadha Congress used legislative vetoes 111 times Since Chadha, Congress not used a single legislative veto

34 Clinton v. City of New York Congress having trouble balancing budget Wants to give President line item veto like many governors, but not change Constitution Gives President power to sequester funds, either in spending or tax breaks, with possible override vote in Congress

35 Train v. City of New York The Nixon Administration argued that executive power allowed it discretion over whether to disburse all funds allocated by Congress Nixon cut disbursements under the Federal Water Pollution Control Act by $3 billion per year – NYC sues for funding for pollution controls


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