1. 1 Chapter 2 Part 1

2. 2 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

3. 3 "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

4. 4 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

5. 5 Delegation Doctrine - Adjudications Old test was public versus private rights New Test [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?

6. 6 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 to 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

7. 7 Control of Agencies The 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?

8. 8 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.“

9. 9 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

10. 10 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

11. 11 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

12. 12 Buckley v. Valeo 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

13. 13 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?

14. 14 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?

15. 15 Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. (“ 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?

16. 16 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?

17. 17 Congressional Removal of Executive 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? Could Congress remove the head of the CBO without impeachment?