1. Constitutional Law I Spring 2004Con Law I The Administrative State Mar. 11, 2004

2. 2 Administrative Agencies Utility Administrative State arose by necessity  breadth of federal gov’t and regulations  develop institutional expertise Const’l Framework Admin. agencies are part of executive branch  subject to Jackson 3-zone structural approach Exercising delegated power  non-delegation doctrine (dual fed’ism) greatly restricted  if acting outside delegation, then zone-2 or zone-3

3. 3 Example of Admin Agency

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5. 5 Functions of Admin Agencies Executive functions apply/administer/enforce federal law Quasi-Judicial Functions adjudicate disputes involv- ing agency functions  agency courts hear “public rights” cases Quasi-Legislative Functions promulgate rules, regulations, & (micro) policy  congress can override by statute

6. 6 Why Agencies have such power Complete separation of power not feasible Some degree of law-making is inevitable in  Executing laws  Deciding cases Some degree of adjudicating also inevitable in  Administering laws As result, most agencies are in Exec Branch basic functions are executive  enforce congressional and Presidential policy Because of their integrated functions  agencies need to be in the branch with the most flexible SoP oversight

7. 7 Non-Executive Agencies Art. I: Congressional agencies and offices Example: CBO, Library of Congress, GAO cannot exercise these functions  executive  judicial  legislative (surprise) see INS v. Chadha can assist congress w/ research, advice, etc. Art. III: Judicial agencies and offices Ex: judicial council, magistrates no Art. I, II, or III functions, can assist courts (recommendations) Ancillary lawmaking functions

8. 8 Non-Delegation Doctrine Schechter Poultry v. United States (1935) NIRA authorizes President  to implement “Code of Fair Competition” as proposed by (private) Industry group Delegation of legislative power to President  Invalid if unfettered discretion  Valid if limited (guided) discretion NIRA imposes few policy standards Panama Refining v. Ryan (1935) Executive Order prohibits “hot oil”  Policy not specifically set by congress How specific must congress’ standards be?

9. 9 Mistretta v. United States (1989) Penal remedies are set by congress Traditionally, congress delegates discretion to judiciary to sentence within statutory range US Sentencing Commission Delegated authority to create binding guidelines  Court must state reason for any departure Is delegation to Comm’n excessive? Degree of generality: Congress needs only to state an "intelligible principle" to guide agency's discretion "purposes"  Has it here? Or merely stated "purposes" and asked the Commission to develop its own policies?  Does Mistretta overrule Schechter and Panama?

10. 10 Whitman v. Am Trucking Assn (2001) Does EPA exercise legislative or quasi-legislative power? Clean Air Act requires EPA to promulgate Air Quality Standards, and revisit every 5 yrs  Standard must protect public health based on published air quality criteria and latest scientific knowledge Has congress set “intelligible principle” for EPA? Intelligible principle test does not foreclose agency from creating policy. Congress need not create formula, with agency discretion limited to plugging in numbers.  “A certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action”

11. 11 Mistretta v. United States (1989) In which branch of gov't is Com'n located? Executive branch?  President both appoints and removes members  Gen'l rule: an agency is located in the branch with the power of removal  What problems if Com'n is "located" in exec branch? Scalia problem: rule-making function is not "incident" to any executive function Judicial independence: can Art. III judges be assigned to non-Art. III agency? Sentencing Commission is a hybrid  Located outside of all 3 branches  Compare "Independent" agencies