1. Chapter 2
Part 1

2. The Non-Delegation Doctrine Just History – So Far
This played out during the mid-1930s when Congress created several new agencies to fight the Depression.
The Switch in Time that Saved Nine.

3. Learning Objectives – Non-Delegation Doctrine
Why did this become an issue in the 1930s?
What were the delegations that the Court was concerned with?
What would be the impact on government function if the court had persisted in finding delegations unconstitutional?
How did the court change its analysis of these cases to solve the delegation issue?

4. What is the Non-Delegation Doctrine Problem?
Can Congress delegate legislative or judicial power to an executive branch agency?
The Constitution is silent on this issue.
The United States Supreme Court initially found such delegations to violate separation of powers and struck down several pieces of New Deal legislation.
Classic formal v. functional debate.

5. Shifting the Question
Did Congress sufficiently direct the agency in the law delegating the power so as to limit the agency’s actions to those that would not violate separation of powers?
The judicial review question:
Does the statute provide enough guidance for the court to review the agency actions to assure that they comply with Congressional intent?
The "intelligible principle" test.
This is all you need to know about the history

6. The Modern Test for Delegation – Whitman v American Trucking

7. Application of Whitman

8. "Intelligible Principle" - Rulemaking
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
Under the old version of the non-delegation doctrine, the law was unconstitutional without regard to whether there was sufficient guidance to the agency.
Now the court will review the law and look for a standard to review the agency’s actions.
As Whitman shows, the court does not need to find much.

9. 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

10. 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?

11. Judicial Review as a Check on Delegated Powers
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 or eliminate judicial review in some circumstances.

12. 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
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
Administrative detentions are OK, but not for punishment
Tuberculosis, denial of bail, mental health commitments
Guantanamo Bay detentions are administrative

13. Congressional Control of Agencies

14. Learning Objectives – Limits on Congressional Control of Agencies
How do we determine if Congress can control an agency?
How is Congressional oversight different from an unconstitutional control of an executive branch agency?
How can officers of the United States be removed?
What is the limitation on the removal of judges?

15. 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."

16. 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

17. 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

18. 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

19. 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

20. 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?

21. 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?

22. 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 airport to be run by a state Airport Authority
Major decisions of the Airport Authority were subject to the veto of a “Board of Review composed exclusively of Members of Congress.
What is the Appointments Clause issue?
How does having Congressmen on the board violate Bicameralism and Presentment?

23. Incompatibility or Ineligibility Clauses
Prohibit any Member of Congress, while serving in Congress, from being appointed ‘‘to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time,’’ and they provide that ‘‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.’’ U.S. Const. art. I, §6, cl. 2.
Can you think of a common violation?

24. Stopped here

25. The Library of Congress
The Librarian is appointed by the President.
Its operation is overseen, 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.

26. Does the Library Oversight Violate the Constitution?
Is congressional oversight a violation of separation of powers?
What do we need to know about this oversight to answer the question?
Does it need to be an executive agency at all, i.e., could congress run The Library of Congress and appoint the director?
What do we need to know about the library to decide?
Is there a part of the Library does make rules and get involved in enforcement?

27. Congressional Removal of Executive and Judicial Branch Officers
Grounds for impeachment
Only for “Treason, Bribery, or other high Crimes and Misdemeanors.”
What is the process?
Bill of Impeachment is passed by the house
Senate as jury
Chief Justice of the Supreme Court presides
What is the impact on the business of Congress?

28. How Well Has Impeachment Worked?
How many federal judges have been impeached?
Thomas Porteous from New Orleans was only the eighth federal judge to be convicted and removed from office by the Senate
How many presidents have been impeached?
How many have resigned in the face of impeachment?
What are the politics of impeachment?

29. INS v. Chadha, 462 U.S. 919 (1983)
The late date of this case – nearly 200 years after the ratification of the Constitution and 100 years into the use of the legislative veto – gives a sense of the late evolution of administrative law.
This is an important case about the relationship between Congress and agencies
While we will talk about adjudications in the next chapter, this is also an adjudication case.

30. 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.

31. 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?

32. § 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?

33. 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 did the House do that affected Chadha?

34. 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."

35. 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

36. 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?

37. Checks and Balances
How does bicameralism it fit into the checks and balances of the US Constitution?
How has the evolution of the Senate's rules changed 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?

38. 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.

39. 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?

40. 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.

41. 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.

42. 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?

43. 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?

44. 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.
The Congressional Review Act allows bills to be passed to void agency rules without the filibuster.
Some state legislatures have asserted the right of legislative veto.

45. 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?

46. 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?

47. 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.

48. 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?