Administrative Law Notes 1

Transcription

1 Administrative Law Notes 1 I. THE PLACE OF AGENCIES IN AMERICAN GOVERNMENT. 5 A. THE CONSTITUTIONAL POSITION OF ADMINISTRATIVE 5 1. THE NON-DELEGATION DOCTRINE 5 Hampton v. US (1928) 5 Panama Refining Co. v. Ryan (1935) 6 A.L.A. Schecter Poultry v. US (1935) 7 Yakus v. United States (1944) 7 2. CONTEMPORARY NON-DELEGATION ARGUMENTS 8 Mistretta v. U.S. (1989) 8 Kent v. Dulles (1958) 8 Industrial Union Dept, AFL-CIO v. American Petroleum Institute (The Benzene Case) (1980) 9 American Trucking Ass ns v. EPA (D.C. Cir. 1999) AGENCY ADJUDICATIONS AND ARTICLE III 10 Crowell v. Benson (1932) 11 Northern Pipeline (1982) 12 Thomas v. Union Carbide (1985) 13 CFTC v. Schor (1986) 13 Granfinanceria v. Nordberg (1989) 14 B. POLITICAL CONTROL OF THE ADMINISTRATION AND THE EXECUTIVE - LEGISLATIVE TUG-OF- WAR APPOINTMENT AND REMOVAL 14 Meyers (1926) 15 Humphrey s Executor (1935) 16 Morrison v. Olson (1988) Error! Bookmark not defined. 2. CONGRESSIONAL CONTROL OF AGENCY DECISION-MAKING 18 Myers v. United States (1926) Error! Bookmark not defined. Bowsher v. Synar (1986) 18 INS v. Chadha (1983) 19 Congressional Control of Administrative Agencies: BRIDGE: A CASE STUDY PRESIDENTIAL DIRECTION OF THE ADMINISTRATION 22 II. THE PROCESSES OF ADMINISTRATIVE DECISIONMAKING 22 A. RULEMAKING RULES AND RULEMAKING 22 National Petroleum Refiners Ass n v. FTC (1973) THE PROCEDURAL REQUIREMENTS OF RULEMAKING 24 United States v. Florida East Coast Railways Co. (1973) 25 Vermont Yankee Nuclear Power Corp. v. NRDC (1978) 26 Shell Oil v. EPA (1991) 26 American Radio Relay League, Inc. v. FCC (DC Circuit; Judge Rogers) 27 EXEMPTIONS FROM APA RULEMAKING PROCEDURES FLESHING OUT PROCEDURAL REQUIREMENTS DERIVED FROM JUDICIAL REVIEW 34 SEC v. Chenery (Chenery I) 34

2 Administrative Law Notes 2 Arbitrary and Capricious ( Hard Look ) Review 706(2)(a) 34 National Tire Dealers & Retreaders Ass n Inc. v. Brinegar (DC Cir. 1974) 34 Automotive Parts 34 Motor Vehicle Manufacturers Ass n of US v. State Farm Mutual Auto Ins (Supreme Court 1983) OSSIFICATION AND RESPONSE 37 B. ADJUDICATION THE INTERPLAY BETWEEN RULES AND ADJUDICATION 38 Heckler v. Campbell (Supreme Court 1983) 38 SEC v. Chenery Corp. Chenery II (Supreme Court 1947) 38 Londoner v. Denver 40 Bi-Metallic Investment Co. v. State Board of Equalization THE PROCEDURAL REQUIREMENTS OF ADJUDICATION 41 Goldberg v. Kelly (Supreme Court 1970) 41 Mathews v. Eldridge (Supreme Court 1976) 42 Dominion Energy Brayton Point, LLC. V. Johnson (1st Cir. 2006) 44 Citizens to Preserve Overton Park, Inc. v. Volpe 45 Pension Benefit Guaranty Corp. v. LTV Corp. 45 Universal Camera Corp. v. NLRB (Supreme Court 1951) THE COMPLICATIONS OF THE ADJUDICATION MODEL 47 FTC v. Cement Institute (1948) 47 Comments on FTC Adjudication by Former Commission Elman 49 Withrow v. Larkin (1975) 50 Nash v. Bowen (1989) 51 American Telephone & Telegraph Co. (FCC 1976) 52 III. REVIEW OF AGENCY LEGAL CONCLUSIONS: STATUTORY INTERPRETATION IN ADMINISTRATIVE LAW THE DOCTRINAL FRAMEWORK 53 NLRB v. Hearst (1944) 53 Skidmore v. Swift & Co (1944) 53 Chevron v. NRDC (1984) 54 Scalia Judicial Deference to Administrative Interpretations of Law (1989) 55 Richard Pierce Chevron and Its Aftermath (1988) 55 Bressman Chevron s Mistake CHEVRON AND INTERPRETATIVE METHODOLOGY: STEP ONE 56 Tools of Step One Analysis 56 Dept. of Housing & Urban Development v. Rucker (2002) 56 General Dynamics Land Systems v. Line (2004) 57 MCI Telecommunications Co. v. American Telephone and Telegraph Co. (Supreme Court 1994) 58 FDA v. Brown & Williamson Tobacco Corporation (2000) 58 Rust v. Sullivan (1991) 59 Rapanos v. US (2006) 60 Watters v. Wachovia Bank (2007) CHEVRON STEP TWO: WHAT S LEFT? 61

3 Administrative Law Notes 4 INTRODUCTION The New Deal Shift FDA, FTC Second burst Public interest era of 1970s Goals of the administrative state: Efficiency solve market failures (market power; information asymmetries; collective action problems) Fairness redistributing resources (certain people can t do with their property what they want to do with it) Democracy participation; accountability o Decisions are happening away from Congress, without voting, and away from representation Benefits of agency work: Issue of limited legislative resources why give Feinstein the duty of determining the placement of bathrooms? More political insulation from controversial decisions Better technical knowledge Gridlock in Congress Drawbacks: These are unelected bureaucrats o Chevron Supreme Court noted that most people did not vote in the last election because of one agency s operation Bureaucracies exercising huge amounts of power Why would a Congressperson vote for a bill to give agencies more power? Congress may get it wrong and get it blamed for something There may be a constituency to be pleased Gives the Congressperson time to work on other stuff Why would industry be in favor or opposed? It would be costly Maybe it s easier to influence bureaucrats rather than Congresspersons Some industries may want regulation and may be fighting each other Why might one company want more regulation for example in privacy? o Microsoft lobbies strongly for more regulation; others fight more regulation. Microsoft likes privacy in general its business model rests on the fact that the user feels comfortable on the user giving it information Maybe other companies don t want as much regulation because they would have to make adjustments to their products to make them more private

4 Administrative Law Notes 5 I. THE PLACE OF AGENCIES IN AMERICAN GOVERNMENT. A. The Constitutional Position of Administrative 1. The Non-Delegation Doctrine Definition legislature may delegate its power to an agency only under carefully controlled conditions expressly set out in an organic statute Legislative standards test: Congress could delegate legislative power if it set standards sufficient to limit the scope of the agency s discretion;; as long as Congress made the major policy decisions, it could delegate interstitial policymaking to an agency. Later overturned by Hampton intelligible principle Constitutionality of broad delegations of power Constitutional Text Article I (tension between the two) o 1 All legislative powers shall be vested in the Congress (vesting clause) (antidelegation) o 8 Necessary and Proper clause Congress can share its legislative authority to the extent it s necessary and proper to the exercise of its authority. (pro delegation) Peter Strauss The Place of Agencies in Government: Separation of Powers and the Fourth Branch (1984) Agency is in none of the three branches of the government but is an inferior part of the government; each agency is subject to the controls of Congress, the Supreme Court, and the President The apportionment of branches was made only to those actors occupying the very apex of government Hampton v. US (1928) Facts: Tariff Act of 1922 delegated authority to set and impose customs duties on articles of imported merchandize; when under a proclamation of President, Hampton & Co. was assessed a higher customs duty than fixed by statute, company sought relief; statute violates Art. 1, 1 because President is making the law and not enforcing it. President s action is also constrained by a specific legislative goal. Court upholds the statute but sends conflicting signals about non-delegation more generally o Intelligible principle standard There must be some intelligible principle through which the person is delegated authority; this ties delegation back to the legislative power; Congress needs to make the key policy choices. Hampton condones a just and reasonable standard If the ICC s rate of just and reasonable is okay, then equalize production costs is okay Hampton stands for a narrower principle, but it gives a blessing for a broader principle Why might delegations be inconsistent with the constitutional scheme?

5 Administrative Law Notes 6 Thematic discussions why the exercise of power by one branch may not be consistent with our whole constitutional scheme. o Separation of powers Federalist 48 discusses the separation of powers; it was an important issue because of the fear of tyranny Federalist 10 legislative balances and checks will prevent encroachment o In addition, the federal government s powers are supposed to limited;; that s why there is a separation of powers Constitution protects liberty by: o Limiting the scope of subjects Congress can legislate on and the control of the federal government. o Making congressional legislation difficult; slow it down. While efficiency is sometimes desirable, you don t want the legislation to be too efficient; this is tyranny. Methodological point for and against a robust version of non-delegation: Argument between formalism and functionalism o Formalist view certain powers are inherently legislative, others executive o Functionalist view No one should have too much power, so let s make sure that as things are happening out there, we don t think anyone has too much power. Anything about government getting stuff done ( efficient government, good government ) is functionalist Having courts do stuff and create policy is bad; they lack expertise and knowhow Both Panama Refining and ALA Schechter are politically motivated. Panama Refining Co. v. Ryan (1935) National Industrial Recovery Act empowers president to prohibit transportation of hot oil (oil in excess of certain quotas); Roosevelt uses this power; gets sued o Act has no articulation of a goal; little limitation on president s power o Law contains general policy goals but not information on limitation on presidential power o There is a triggering event, however; it must be in excess of state limits o There is something implied, though; the context of this act is to make sure the economy is running well, post-depression Issue: is the scope of President s discretion greater under this statute or Hampton case? Holding: Congress is manifestly not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested o However, the President can only do one thing stop things. The President can only prevent the shipment of hot oil. o Congress could have placed better restraints: 1. Constraints on the factors that can be considered 2. Scope of decisional authority ( Is this something I m really worried about? Hot oil? )

6 Administrative Law Notes 7 Court ultimately holds Section 9 unconstitutional o Justice Hughes states that Congress has expressed no policy with respect to Hot Oil shipments; the President is given entire discretion; this cannot be allowed or else there is no limit on Congress s power to delegate o Section 9 doesn t require the President to make any finding of facts, contrary to the President historically having to do some fact finding. To say the President will act in the public good is not an actual principle. Cardozo dissents: o There is an intelligible principle here it s the purposes of the statute: to promote fair competition;; that s what NIRA was all about o A reference express or implied to the policy of Congress is a sufficient definition of a standard to make the statute valid A.L.A. Schecter Poultry v. US (1935) Facts: Act says industries can provide their own codes of unfair competition; President must approve codes before they go into law and become criminalized o Statute directs President to find that the trade associations were representative, not designed to promote monopolies, and allows for healthy competition o You have here private actors, absence of formal proceeding, and a huge delegation of discretionary authority to delegate lots of powers o There are some statutory limits here: Procedure Court demands safeguards: notice and hearing; fact-finding. In Hampton, Congress declared rule and executive implemented it; here, Congress is not declaring a rule private bodies are. Substance You need representative groups, not to promote monopolies, and no oppression of small enterprises o The Court didn t buy this;; who is ultimately making this decision? Private actors deciding on criminal law. Holding: statute unconstitutional; limitations included in bill must be on scope of statute o Limitations must be real and effective Variety of interrelated non-delegation concerns: 1. Breadth of executive discretion vs. the range of decisions that can be made 2. Presence or absence of factual findings and supporting evidence 3. Existence or absence of procedural safeguards 4. Importance of the topic Since 1935, no statute has ever been struck down on straight non-delegation grounds. Functionalist argument won; non-delegation is no longer applied. Yakus v. United States (1944) 1942 Price Control Act created an administrator who made maximum commodity prices which would be fair and equitable ;; created Office of Price Administration

7 Administrative Law Notes 8 Court upholds this act; Justice Stone the Constitution as a continually operative charter of government does not demand the impossible or improbable. Ultimately, the Chief Justice says this act gives enough grounding for courts to review if the Price Administrator does a good job. 2. Contemporary Non-Delegation Arguments Mistretta v. U.S. (1989) Take away: may be enough for Congress to identify a problem without prescribing its solution, so long as a competent agency is established to deal with it, and so long as some standard, however minimal and ambiguous, some intelligible standard, is in the enabling act. Facts: Sentencing guidelines provide an intelligible principle; Organic statute: Congress established the Sentencing Guidelines and an independent commission in the judicial branch of the U.S. under the Sentencing Reform Act of 1984 Issue: constitutionality of Sentencing Guidelines promulgated by US Sentencing Commission Holding: Court says in 8 to 1 opinion: no non-delegation problem; functionalist o In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination. Only if we could say that there is an absence of standards for the guidance of the Administrator s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed would we be justified in overriding its choice of means for effecting its declared purpose. Justice Blackmun s footnote: o CB 47, fn. 7: The problem in Panama Refining is that it made crimes of acts never criminalized; in Schechter, regulatory power delegated to private individuals; no delegation of this kind is at issue here He redefines those cases on the narrowest of terms Dissent (Scalia): it is irrelevant whether the standards are adequate, because they are not standards related to the exercise of executive or judicial powers; they are standards for further legislation! Kent v. Dulles (1958) 1926 Passport Act Sec of State may grant and issue passports under such rules as the President shall designate and describe o President issues exec. order denying passports to Communists; two people sue Court no intelligible principle; violates non-delegation doctrine. This is a 1st Amendment right issue. Court doesn t want to deal with it. o Congress wouldn t have knowingly violated the Constitution. Out of respect to Congress, we ll interpret the statute as if it didn t have a problem. We ll interpret it to say there s a constitutional right to travel. If Congress wanted to impinge on that right, they would have said it outright.