Administrative Agencies in the Constitutional Scheme

Agencies & Separation of Powers Principles The notion of a fourth branch of government With functions borrowing from all three primary branches Quasi-legislative (rulemaking) Quasi-executive (enforcement) Quasi-judicial (adjudication)

Appointment and Control of Federal Officers Enabling legislation Different types of executives Superior/inferior/civil service

Independent agencies Three theories of shared power: (1) President has complete control over federal officials as part of the executive function and Congress may not limit the President’s authority to terminate federal officials (2) Congress may regulate administrative agencies so long as it does not interfere with the President’s ability to faithfully execute the laws (3) Congress possesses nearly plenary authority over the federal bureaucracy and the President is relegated to simply enforcing and executing the laws Congress creates Myers v. United States Humphrey’s Executor Morrison v. Olson

The Delegation Issue Basic Problem: How can Congress transfer its powers, or the powers of the judiciary, to an agency? Does this not violate the separation of powers? Nondelegation Doctrine Developed by Supreme Court A delegation may be unconstitutional if: It is excessive or It places control over an essential function of one branch in another branch. Schechter Poultry Corp. v. United States (1935) Panama Refining Co. v. Ryan

The Need for an intelligible principle “A congressional delegation of power … must be accompanied by discernible standards, so that the delegatee’s actions may be measured by its fidelity to the legislative will.” Arizona v. California Lichter v. United States Mistretta v. United States

Administrative Procedure Act (1946) formal rulemaking informal rulemaking administrative law judges (ALJs)

Legislative Veto Any process whereby Congress may review and reverse an agency decision. It is an attempt to control the implementation of delegated powers. I.N.S. v. Chadha (1983) Presidential claims regarding the War Powers Resolution

Congressional oversight Corrections Day – twice monthly Oversight hearings