1. Chapter 2
Part 1

2. The Delegation Doctrine
The core question is whether Congress can delegate legislative or judicial power to an executive branch agency.
The Constitution is silent on this issue. The United States Supreme Court initially resisted the delegation of these powers to agencies.
This played out during the mid-1930s when Congress created several new agencies to fight the Depression.

3. Delegation Doctrine - Rulemaking
Great historical interest
Key issue in the judicial fight over the new deal
The United States Supreme Court was concerned that delegation of legislative or judicial powers to agencies violated separation of powers
Court shifted to looking for whether Congress provided enough guidance for the court to review the agency actions
The "intelligible principle" test
This is all you need to know about the history

4. "Intelligible Principle" - Rulemaking
The court has to be able to review an agency's actions to make sure they are within the congressional grant of power.
If the legislature does not provide an "intelligible principle" to guide the court in reviewing agency action, the courts will strike down the agency action
Key - the law is constitutional, but it does not provide useful power to the agency
Under the delegation doctrine, the law was unconstitutional

5. What is an Intelligible Principle?
Specific guidance is best
Congress will provide very specific guidance if it wants to limit agency discretion - the ADA
General/ambiguous guidance is also usually OK
‘‘in the public interest"
Depends on whether context can provide meaning
We will explore this in the Chevron and FDA cigarette cases

6. Delegation Doctrine - Adjudications
Old test was public versus private rights
New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)
[1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and
[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,
[3] the origins and importance of the right to be adjudicated, and
[4] the concerns that drove Congress to depart from the requirements of Article III.
Is the administrative law judge (ALJ) acting as an Article III judge?

7. Limitations on Delegation
Criminal penalties can only be assessed by Article III courts.
Agencies can impose civil fines
While magistrate judges can handle some parts of criminal trials, the core trial functions must be done by an Article III judge.
Agencies can restrain (lockup) individuals, subject to habeas corpus review, or statutory review if provided by the legislation.

8. Practical Considerations
The court is very unwilling to find adjudications exceed constitutional authority under this test.
This may be because Congress has not passed laws which test the outer limits of agency authority
Can happen when adlaw is used for criminal actions
There are state law fights over this - Wooley
There are limits on the transformation of criminal matters into agency adjudications
Traffic court can be civil, but only if there is no jail time
Large civil fines push the edge, especially if there are also criminal penalties for the same act
Guantanamo Bay detentions are administrative

9. Right to Judicial Review of Agency Actions
There is a right of judicial review of rules to determine if the agency has the legal authority to issue them and if they properly supported by the record.
There is a constitutional right to due process protections in adjudications, and usually a right to judicial review of the decision.
As we will see, Congress can limit judicial review in some circumstances.

10. Presidential Control of Agencies
The president's ultimate control over an agency is through hiring and firing agency personnel, or at least through having that option available
Is the president free to appoint and remove who he wants?
How much control can congress exercise over executive branch agency personnel?

11. Art II, sec. 2, cl 2 - the Appointments Clause
"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

12. Limits on Congressional Appointments
Congress creates and shapes the executive branch
Without specific appropriations, there would be no White House and the president would have to rent space from his own pocket
Under the Appointments Clause, Congress cannot make appointments to executive branch agencies
Congress can impose requirements on appointments
Limitations on who can be appointed, such as requiring political balance on the FEC
Limitations on removal, which create independent agencies discussed later in the chapter

13. Civil Service
Congress developed the Civil Service to protect workers from losing their jobs every time the administration changed
Most personnel are civil service and can only be fired for cause with due process
Limited due process for security agencies
This was carried over and broadened in the Homeland Security Agency

14. Pros and Cons of the Civil Service
Why is it important to you if you want to be a government lawyer?
What are the problems with the system?
How high should it go?
Career track problem for senior people without lucrative outside jobs
Public Health Directors
Lawyers in specialized areas without private practice

15. Buckley v. Valeo, 424 U.S. 1 (1976)
Original process for selecting members of the Federal Election Commission (FEC)
Two members appointed by the President pro tempore of the Senate,
two by the Speaker of the House, and
two by the President (all subject to confirmation by both Houses of Congress), and
the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members
Challenged as an Appointments Clause violation

16. The Role of the FEC What does FEC do that is forbidden to Congress?
(This is the defining action for an executive branch agency)
How does allowing congress to appoint commission members undermine separation of powers?
Was the selection process for the FEC commissioners constitutional?

17. The Congressional Budget Office (CBO)
The “primary function” of the CBO is to give the House and Senate Committees on the Budget information that “will assist such committees in the discharge of all matters within their jurisdiction.” The CBO also has additional duties, all of which relate to giving Congress information on budget matters.
The Director is appointed for a four-year term by the Speaker of the House of Representatives and the President pro tempore of the Senate.
Does this appointment scheme violate the Appointments Clause?

18. Washington Airports Authority v
Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. 501 U.S. 252 (1991) (“MWAA”)
The federal statute authorized the airports to be run by an Airport Authority
Major decisions of the Airport Authority were subject to the veto of a “Board of Review.”
The federal statute dictated that the Board be composed exclusively of Members of Congress.
Putting aside the Appointments Clause issue, how does having Congressmen on the board violate Bicameralism and Presentment?

19. The Library of Congress
The Librarian is appointed by the President.
Its operation is overseen, however, by the Joint Committee of Congress on the Library.
The Joint Committee consists of the chairman and four members of the Committee on Rules and Administration of the Senate and the chairman and four members of the Committee on House Oversight of the House of Representatives.
Is congressional oversight a violation of separation of powers?
Does it need to be an executive agency at all, i.e., could congress run its own library and hire the director?
What do we need to know about the library to decide?
What part does make rules and get involved in enforcement?

20. Congressional Removal of Executive and Judicial Branch Officers
Impeachment
Brought by the house
Senate as jury
Only for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Why is this of limited effectiveness for agency oversight?
Why is this a problem for dealing with bad judges?
The executive branch can remove its own, but only congress can remove judges

21. INS v. Chadha, 462 U.S. 919 (1983)
This is an important case about the relationship between Congress and agencies
What is the legislative veto as used in this case?
Why was it efficient from the point of view of congress?
The legislative veto was very common at the time Chadha was decided

22. Adjudication Issues
While we will talk about adjudications in the next chapter, this is also an adjudication case.

23. Are there Limits on Congressional Power over Aliens?
Congress' Art. I power "To establish an uniform Rule of Naturalization," combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens.
Aliens in the US, even illegals, get constitutional protections such as criminal due process
They get only limited rights on detention and deportation
They have no right to stay, only a right to a hearing to make sure the agency has the right person and facts.

24. The Immigration Question
What are the political questions over immigration?
How have these changed over time?
What are the debates right now?
Why does immigration divide both conservatives and liberals?

25. Background on Deportation
What agency was the INS part of?
Now -
What is the significance of the shift?
Why is Congress ambivalent about deportation?
Why do you think Congress gave the DOJ the right to decide whether aliens should be allowed to stay in the U.S.?
Why did they want to retain a say in deportation proceedings?

26. § 244 - What the Alien has to prove to stay deportation
“...has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application,
...that during all of such period he was and is a person of good moral character;
...is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.“
Are these black and white factual determinations?

27. Chadha’s Situation Did Chadha enter the country legally?
How did he become deportable?
Does the statute give the agency the discretion to stay his deportation?
What did the ALJ find?
Did the agency agree?

28. Legislative Veto
What is the role of the House of Representatives in the law challenged by Chadha ?
If they had not acted, would Chadha have been able to stay in the country?
What was their ruling on Chadha?
(They did not vote against Chadha personally, they rejected the list.)

29. Post Legislative Veto
The ALJ (immigration judge) reopened the proceeding
Does the ALJ or the agency have the right to override the congressional act?
Can the agency refuse to follow what it believes is a congressional action taken under an unconstitutional law?

30. The Circuit Court DOJ joined Chadha in challenging the law
Why did this produce a "case and controversy" issue?
What is the purpose of the case and controversy provision?
Can Congress modify the requirement?
Are the states bound to have a case and controversy requirement for their courts?
Why did the court invite Congress to submit briefs?

31. Does History Make the Legislative Veto Constitutional?
"Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from , nineteen statutes; between , thirty-four statutes; and from , forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such provisions visions were included in eighty-nine laws."

32. What if the Legislative Veto is a Useful Law?
... the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.
Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government and our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies

33. Bicameralism What was the Great Compromise?
Why was it critical to the ratification of the constitution?
How is the senate different from the house?
How were senators originally chosen?
Senate rules are not from the constitution, they are a latter add-on by the Senate
Why was bicameralism key to making the Great Compromise work?

34. Checks and Balances
How does bicameralism it fit into the checks and balances of the US Constitution?
Does the constitution require the states to have bicameral legislatures?
How has the evolution of the Senate's rules changed from the intent behind the compromise?
Did the founders contemplate modern political parties?
How does the legislative veto violate bicameralism?
Would presenting this to the senate have changed the constitutional question?

35. Presentment Clause
What is the president’s role once legislation has passed the house and senate?
What if he does not sign it?
The Constitution grants the President 10 days to review a measure passed by the Congress. If the President has not signed the bill after 10 days, it becomes law without his signature.
pocket veto - However, if Congress adjourns during the 10-day period, the bill does not become law.

36. Presidential Veto Why does the constitution give the president a veto?
Who did the founders have in mind as president when they put the veto in?
What can Congress do if the president vetoes a bill?
How have bills changed since the founding?

37. When may the House of Representatives Act Unilaterally?
(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 5;
(b) The House elects the president if no candidate gets a majority in the Electoral College.
(c) The House initiates spending bills.

38. When may the Senate Act Unilaterally?
(a) conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 6;
(b) elects the vice-president if no one receives a majority of votes in the Electoral College.
(c) final unreviewable power to approve or to disapprove Presidential appointments. Art. II, § 2, cl. 2;
(d) unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.

39. What is the Only Congressional Joint Resolution with Legal Effect?
Congress declares war by joint resolution
Does the Constitution provide a specific mechanism to end wars?
Why?

40. What is the significance of these narrow exceptions?
Why did the court find the legislative veto a major constitutional issue?
What did the court rule?
Has this crippled government function?
Does it strengthen agency powers?

41. Post-Chadha
Congress enacted a law requiring notice of certain agency actions and created a delay in their implementation to allow it to pass a law to override them
It is much harder to pass a law and get it signed by the President, which leaves the agencies more latitude than before Chadha
Some state legislatures have asserted the right of legislative veto.

42. Formal Legislative Review and Oversight of Executive Branch Agencies
(1) an appropriations committee, which oversees how the agency spends its budget;
(2) a “substantive” committee, which oversees the substance of the agency’s work; and
(3) “government operations” committee, which is concerned with the agency’s efficiency and its coordination with other parts of the government.
One of each of these three types of committees will exist in both the Senate and the House.
Why did they all miss the financial agency failures?

43. Informal Legislative Review and Oversight
Members of Congress ask agencies about some grievance of their own or their constituents.
all types of contacts (telephone calls, s, and so on) between individual Members of Congress, or the Member’s staffs, or a committee’s staff, and agency officials.
Many of these informal contacts relate to discrete agency actions affecting specific constituents.
Do you think Congressmen get better service?
Is this fundamentally undemocratic?
Where does lobbying come in?
Charlie Wilson's War?

44. What is an Earmark?
Congress enacts a statute that appropriates a lump sum of $10 million for the Indian Health Service (“IHS”)
The appropriations statute is accompanied by a report from the appropriations committee saying that IHS should use part of the $10 million to continue operating an existing medical clinic.
Is this consistent with the founders intent?
The appropriations statute itself, however, does not refer to the clinic. Nor does IHS’s organic statute.

45. Enforcing Earmarks
The organic statute broadly authorizes IHS to spend its appropriation “for the benefit, care, and assistance of the Indians.”
What if the agency ignores the report and closes the health center?
Can this be challenged in court?