#11272 - Agency Administration - Legislation & Regulation

1. AGENCY ADMINISTRATION

   1. Congress

      1. The Nondelegation Doctrine

Schecter Poultry v. U.S.: Congress passed the NIRA, delegating to industry groups the authority to write codes of fair competition, labor standards, wages, hours worked, etc. Where the industry group fails to submit a code to the President or he refuses to approve one, he may draft one himself. Held, NIRA violates the nondelegation doctrine, because its delegation of rulemaking authority was not bound by an intelligible principle.

Industrial Union Department v. American Petroleum Institute: OSHA statute mandates that the agency assure “as far as possible...safe and healthful working conditions.” It also authorizes OSHA to establish “reasonably necessary” standards for toxic materials to ensure “to the extent feasible” that no worker will suffer material impairment. OSHA identifies benzene as a carcinogen applies its general policy of restricting benzene to 1 ppm or lower, even though they only have data showing health risks above 10 ppm. Held, OSHA violated the statutory mandate to adopt a reasonable standard because it did not investigate whether a higher standard may have been reasonable. The court holds OSHA is limited to adopting only those standards which are “reasonable and appropriate.”

• Note that this ruling involved application of the constitutional avoidance doctrine—the court avoided answering whether the OSH Act lacked an “intelligible principle” by finding the agency in violation of the Act by another route.

Whitman v. American Trucking: AT sues the EPA over its rule restricting ozone to .08 ppm instead of .09 ppm. The Clean Air Act authorizes the EPA to pass air quality standards reasonable necessary to promote public health. AT alleges a violation of the ND doctrine, alleging that this is too broad a statutory mandate to be circumscribed by an intelligible principle. Held, the statutory mandate is not too broad. A broad statutory mandate is not synonymous with an excessive delegation of authority. The agency is still bound to push for lower ozone standards—that is, it is not free to work contrary to public health. In the past, the court has found an intelligible principle even where the only such principle be that the agency pass rules “in the public interest.”

1. Legislative Control of Agencies

• Legislative Veto: Formerly, Congress reserved the right to veto certain agency actions unilaterally (usually by a vote of one house). This was found to violate bicameralism and presentment, as required by U.S. Const. Art. I, § 7. See INS v. Chadha.

• Other powers over agencies which Congress retains:

  • Pass new legislation

  • Control appropriations

  • Eliminate a particular office

• When it creates the agency, Congress exercises control by:

  • Circumscribing the agency’s authority and objectives (intelligible principle)

  • Requiring the agency to satisfy various procedural standards (e.g., reports to Congress, studies, etc.)

INS v. Chadha: Statute permits the INS to suspect deportation of a foreign citizen on humanitarian grounds. However, the agency is required to submit its decision to Congress. A vote of one house can “veto” the agency’s decision and reinstate deportation. Held, the legislative veto is unconstitutional, because it violates the requirements of bicameralism and presentment (Art. I, § 7) which Congress must satisfy in order to make law.

Bowsher v. Synar: The Gramm-Rudman-Hollings Act requires the OMB and CBO to independently estimate the federal deficit for the coming year. After reconciling their figures, the Comptroller General then gives a report to the president detailing cuts he is required to make. Now, while the CG is appointed by the president, he is selected from a list supplied by Congress and is otherwise a largely legislative officer. Yet the GRH Act gives him what amounts to executive authority. Either the CG is an executive officer or he is a legislative officer. Either way, GRH creates an unconstitutional separation of powers issue:

• If CG is an executive officer, then he cannot be removable by Congress, except through impeachment.

• If CG is a legislative officer, then he cannot be entrusted with executive powers.

  1. The President

The Constitution

• II.1: The President has the executive power (vesting clause).

• II.2: The President may only appoint superior officers with the permission of the Senate (advice and consent clause).

• II.3: The President shall take care to execute the laws (take care clause).

• II.4: Impeachment.

  1. Removal of Officers

Key Cases

• Myers: Congress may not interfere in the President’s power to remove any officer appointed with Senate’s A&C.

• Humphrey’s Executor: Retreat from Myers; while Congress may not restrict the president’s authority to fire “purely executive” officers, it may restrict his ability to fire officers with “quasi-legislative” or “quasi-judicial” powers.

• Weiner: Where an officer exercises “quasi-judicial” power and where the statute is silent, we may presume that Congressional approval is necessary to remove the officer.

• Morrison v. Olson: Retreats further from H’s E. Even where an officer is purely executive, provided that she is an inferior officer, Congress may limit the power to fire her, provided that doing so does not impede the President’s duty to execute the laws under II.3.

• Free Enterprise Fund v. PCAOB: Two layers of for-cause removal protection is unconstitutional.

Myers v. U.S.: The Postmaster of Portland is appointed by the President with the advice and consent of the Senate. The Tenure of Office Act, however, states that he may only be removed with the same advice and consent. Superior officers must be removable at will—Congress cannot interfere with the President’s power of removal. But inferior officers may be protected from removal except “for cause”—which Congress may define. Held, Congress may not interfere in the removal of any officer who must be appointed with the Senate’s advice and consent.

Humphrey’s Executor: FDR wants to remove an FTC Commissioner for political differences. The authorizing statute restricts the ability of the President to remove a commissioner except when there is “Inefficiency, neglect of duty, or malfeasance in office.” Held, this is distinguished from Myers. Congress may restrict the firing of the FTC commissioner because he exercises “quasi-legislative” and “quasi-judicial” powers (the FTC is an independent agency). Congress may restrict the removal of an officer provided it does not “aggrandize” its own power by doing so.

Morrison v. Olson: Retreats even further from Myers and H’s E. Ethics in Government Act creates the office of Independent Counsel who is authorized to investigate charges of corruption in the executive branch. She is appointed by Article III judges and released by them when the investigation is complete. She is also removable at will by the AG. Held, even though the IC is a “purely executive” officer, provided she is an inferior officer, Congress may give her good-cause removal protection, provided it doesn’t interfere with the President’s constitutional duty to execute the laws. Since the IC has limited tenure and limited jurisdiction, this does not disrupt the president’s power. (But see Ken Starr).

Free Enterprise Fund v. PCAOB: PCAOB established by Sarbanes-Oxley to regulate the accounting profession. The PCAOB Commissioners are appointed by the SEC, and only removable by the SEC for cause. The SEC Commissioners themselves are only removable for cause. Held, two layers of for-cause removal protection are unconstitutional, because they unfairly hamper the President’s power.

1. Office of Information and Regulatory Affairs (OIRA)

Executive Order No. 12,866

• Passed by Bill Clinton—reformed OIRA.

• Required CBA of regulatory alternatives (including not...