POL 318 – Administrative Law February 26th, 2009 Delegation: Occurs when Congress gives some of its authority away to administrative agencies. Types of Delegation Executive Authority No one questions when this happens because agencies’ jurisdiction falls under the executive branch. Gives the agencies the powers they are entitled to receive under the executive branch. Legislative Authority When Congress delegates its authority to make laws to an agency, the agency is receiving quasi-legislative authority. Quasi-Judicial Authority When Congress allows agencies to participate in hearings and adjudications. Congress gives agencies the authority to deal with administrative proceedings. Delegation of Powers Raise Separation of Powers Questions There is no article in the constitution that deals with Agencies Delegations that Violate the Constitution Overbroad Delegation: Congress may delegate too much of its own authority to agencies Congress is giving “carte blanche” authority to agencies. Congress must place restrictions and guidance (specific guidelines) to the agencies they are giving power to. So that Congress can review the Agency and determine if they have committed and Ultra Vires Action. Congress is not allowed to delegate its own essential functions or those of the courts. If a power is enumerated in the constitution, to the legislative or judicial branch, those powers cannot be given to administrative agencies. (Example: Senate may not delegate authority to ratify treaties to an agency) Congress may not make a delegation that permits one branch control over an agency that is performing the functions of another branch When Congress gives away executive or judicial authority, Congress cannot keep their hand involved in that agency. (can give adj. authority to agencies but cannot then attempt to direct decisions of the agency) POL 318 – Administrative Law Lecture # 13 Delegation (con’t) March 3rd, 2009 Delegation of Legislative Authority Article I, Section I provides that all legislative authority rests with Congress. There was no mention of agency rulemaking in constitution Non-exclusiveness: Congress is allowed to share some of its legislative authority. Allows Congress to delegate some but not all of its power to an agency. The Courts think this principle is important in Article I Section VIII (The Necessary & Proper Clause). The Courts do like getting involved but they do allow some delegations, or some powers of Congress to be delegated to agencies. The Courts have upheld delegations because they believe that Congress should rely on intelligent people to develop policy in the agencies. Major Issues Arose in 1930s Depression led to rapid expansion of Agencies. Often Agencies were created with almost unlimited authority. President Franklin D. Roosevelt wanted to make sure that the Executive Branch had more power than the Legislative Branch so he worked hard to make Executive Orders to create Agencies every time Congress did so. These Agencies were given almost unlimited authority & unlimited budgets. National Industrial Recovery Administration (NIRA) ( Controversial Legislation Law, passed by Congress in 1933, signed by the President. The law that Congress created gave the power to the President to establish the National Recovery Administration Agency (NRA). President created a new Government Agency: NRA Given considerable authority to try and regulate the economy. Given one main responsibility: Draft a set of industrial codes for 500 different Industries. Supposed to regulate competition, restrict monopolies, and ensure fair competition between the industries. Members of the NRA recruited businessman from different agencies to be consultants to the NRA, because they are not large enough to write the codes. The members of the NRA wanted fair competition (no preferential treatment). ( Encouraging Fairness Businessman wanted to right codes so that their industry does not lose money. ( Encouraging Profit Making As a result of the conflicting goals of the NRA some Court Cases arose. 1.) Panama Refining case: (hot oil case -- 1935) NIRA authorized the President to prohibit the transportation of certain oil products in interstate commerce. Supreme Court found the delegation unlawful as Congress granted too much legislative authority to the President. The Supreme Court looked specifically at Section 9C of the NRIA, where the President was given legislative authority. Section 9C was found to be an unlawful delegation because it permitted the President to interfere with free trade without providing any criteria for the President to follow. The Court said: The President’s Authority extends to enforcing laws, not creating them without criteria and restrictions. This is the 1st time since 1787 that Courts ruled that delegation was exceeded. 2.) Schechter Poultry case: (sick chicken case -- 1935) Challenged the authority of the President to approve “codes of fair competition” for the poultry industry. Set up a standard that said that Poultry farmers had to “blindly” select the chickens that were to be sold, so they would not just select the sick chickens to sell first. Did Congress unconstitutionally delegate power to the president? Court found delegation unlawful as it lacked any standards for the agency to follow. Court also found the law (the “code of fair competition”) procedurally flawed since it did not give interested parties notice and it did not provide for judicial review of agency decisions Found the NRIA a blatant violation of the constitution & found that the NRIA’s “code of fair competition” unconstitutional. President FDR upset that court invalidated much of his New Deal Legislation. Court Packing Plan FDR looked at the composition of the Court and felt that they were out of touch. He proposed that he would add one new justice for each one over the age of 70. (there were 6 over 70 so he would increase the court to 15 members) This was an attempt by FDR to control the Judiciary. Plan was eventually defeated by Justice Roberts “Switch in Time that Saved 9” Roberts voted in the majority in the cases contrary to wishes of FDR… BUT Roberts switched his votes starting in 1937 to favor the President to avoid Roosevelt trying to pack the court with new members. RESULT: fewer pieces of New Deal Legislation were invalidated. Non-Delegation Doctrine Court argues since 1935 that a delegation of legislative authority is constitutional if Congress establishes the policy and only leaves “gap filling” to the agencies. Intelligible Principle: If Congress provides sufficient standards, (if there are intelligent, reasonable decisions being made) to the agency, delegation is okay. Courts limited the authority of Congress to give away its own authority. Courts have become very liberal in permitting delegations today. Delegation of Judicial Authority Article III: Provides that the judicial power shall be “vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish” All judges appointed under article III have lifetime tenure and come to office through Presidential nomination/Senate approval. Non-Article III Judges: Congress created judges and courts Not nominated by the President or confirmed by the Senate. They receive their job based on merit. This allowed Congress to assign special cases to non-judicial officials (workers compensation cases, Administrative Law Judges) Administrative Law Judges: (Non-Article III Judges) Courts have ruled that Congress can create Administrative Law Judges so long as the judges only hear administrative cases. (ex: denial of benefits, etc.) They cannot hear civil or criminal cases. Public vs. Private Rights Courts made distinction between the two. Public: involve a suit by an individual against the government Private: involve a suit between individuals Court has ruled that Congress may delegate the adjudication of public rights to non-Article III Judges but private rights must be handled by Article III Judges. Delegating to Private Agencies Courts found that increasingly, federal and state governments had been delegating judicial and lawmaking authority to private organizations. Few decisions on whether authority can be delegated to private organizations but a few principles exist. Standards that must be followed: 1.) There are certain, core government functions that cannot be delegated to private parties (ex: Trying Court Cases). 2.) Courts are more protective of their authority than they are of legislative authority. More limitations on what can be given away. 3.) Private agencies performing governmental functions will be treated as government agencies by the courts. Once they start performing a government function they will be subject to the administrative procedures act. 4.) Private agency receiving the delegation must be in a position to serve the public interest (cannot delegate to parties that only have a financial interst) 5.) All limitations on delegations to government agencies apply to delegations to private parties. Delegation and Criminal Law Criminal and Administrative Law are different… Because violations of criminal law can result in serious limitations of liberty (death), Delegations of such authority are subject to special rules. 1.) Delegations of criminal rulemaking to private actors are likely to be unconstitutional. Public agencies may be delegated limited penal rulemaking authority. 2.) Congress must provide agencies with more intelligible principles when delegating penal rulemaking authority 3.) An agency may, with sufficient guidance from Congress, establish a rule declaring an act criminal but may not determine the punishment. 4.) Agencies may only impose monetary penalties and never imprisonment. Conclusion Congress is offered wide latitude in delegating its authority as long as it provides sufficient standards to guide the delegation. When individual liberties are involved as opposed to property interests, the standard must be more precise. The more technical the area to be regulated, the broader the delegation may be. While delegations to private parties are allowed, they are subject to greater limitations than are delegations to government agencies.