Public Institutions

Separation of Powers

20 Multiple Choice Questions

Adjudication

Choice of Procedure (Bell Aerospace) 1

Procedural Due Process - When is Due Process Required?

• Individualized Decisionmaking: Londoner & Bi-Metallic (The “Denver Cases”) 1
• Property or Liberty Interest:
• Goldberg & Roth 1
• Paul v. Davis, Codd v. Velger 1

Procedural Due Process - How Much Process is Due?

• Mathews v. Eldridge balancing test 1
• Loudermill pre-termination hearing requirement 1

Ex Parte Communication: Sierra Club v. Costle 1

Judicial Review of Agency Adjudication

• Torres v. Mukasey 1

Judicial Review of Agency Actions

Judicial Review of Agencies’ Statutory Interpretations (Chevron) 1

• Subsequent cases limiting Chevron deference:
• Force of law requirement (Mead) and “lesser” Skidmore deference (explained in Christensen v. Harris County) 2
• Major Questions Doctrine (WV v. EPA) 1

Judicial Review of Other Agency Actions (Arbitrary & Capricious Review)

• “Hard Look” Doctrine: Overton Park & State Farm 1

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Judicial Review of Agency Actions: Requirements for Review

Thresholds for judicial review (what are they?)

• “Agency Action” requirement (FLPMA cases) 2
• Final agency action requirement (Bennett & Hawkes) 1

Separation of Powers: Political Control of Agencies

Legislative Control of Agencies

• Legislative review of agency decisions
• Congressional Review Act 1
• Nondelegation doctrine: Whitman v. American Trucking 1
• Legislative veto: INS v. Chadha 1

Executive Control of Agencies

• Appointment & Removal power 1

Where do agencies fit into the tripartite government system? (after all, it’s not a “quadpartite government”)

Agencies have legislative powers, judicial powers, and enforcement powers. Independent agencies can even make decisions independently of the President!

Courts have set some parameters on the blurring between the branches of government & agencies:

• Courts have forbidden Congress from appointing/ removing administrators
• Court has declared the legislative veto unconstitutional (Congress can’t give itself the right to void agency orders or rules by passing a resolution)

We’ll be talking about the Court’s sometimes accommodating and sometimes strict approach to the separation of powers.

Opposing viewpoints

• Strict construction: Interprets constitutional requirements as literally as possible, minimizing the extent to which the powers of the three branches overlap. Power is either legislative, judicial, or executive, and it must be exercised by appropriate branch.

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• Functional approach: Interprets constitutional powers in a nonliteral manner, increasing the extent to which the powers of the three branches overlap, commingling the functions so long as one branch’s exercise of power won’t jeopardize the “core function” of another branch, “according to common sense and the inherent necessities of government coordination.” (Buckley v. Valeo)

Delegation of Legislative Power

• Constitution gives Congress the power to delegate its law making authority.
• Congress has the power to make laws “which shall be necessary and proper” to carry out its Article I functions.

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What are the limits to this power?

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Nondelegation Doctrine

The principle in administrative law that Congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an "intelligible principle” on which to base their regulations.

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Can Congress delegate authority to President James Madison, to lift a trade embargo when the countries being embargoed no longer violate our nation’s terms?

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(delegation question raised in Brig Aurora)

Phase 1: Brig Aurora (1813)

• First nondelegation case
• Holding: Congress could authorize the President to lift a trade embargo so long as Congress limits the President’s discretion, only allowing the President to act if a “named contingency” occurs.

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Phase 1: J.W. Hampton, Jr. & Co. v. U.S. (1928)

Replaced the “named contingency” test with the “intelligible principle” test:

• Congress can delegate the authority to revise tariffs to the President when the President deems it necessary “equalize the costs of production in the U.S. and the principal competing country”
• Intelligible principle test: Congress doesn’t violate the prohibition on delegating its legislative powers when it sets the boundaries of the agency’s authority. Delegation cannot be too broad/ambiguous!

Whitman v. American Trucking Associations Inc.

Issue

Whether 109(b)(1) of the Clean Air Act, which requires the EPA to promulgate National Ambient Air Quality Standards (NAAQS), delegates legislative power to the agency?

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Constitutional delegation of authority?

•  EPA Administrator revised NAAQS for particulate matter and ozone
• Petitioners challenged the new standards arguing that CAA 109(b)(1), which instructs the EPA to set standards, delegated legislative power to the Administrator in contravention of the Constitution because the EPA had interpreted the statute to provide no "intelligible principle" to guide the agency's exercise of authority.

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What about after power is delegated?

�Can Congress Override Agency Decisions?

Constitutional Requirements

• Bicameralism: The two-house approval system by which bills are passed through Congress. To be valid, all legislation must be approved by a majority of each congressional house.

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• Presentment: All congressionally ratified bills must be presented to the President, who may either sign them into law or veto them. Congress can override the President’s veto if two-thirds of each house approves the vetoed bill.

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Immigration and Naturalization Service v. Chadha (1983)

• Jagdish Rai Chadha came to the U.S. on a student visa as an exchange student. He was born in the British colony of Kenya to Indian parents, and a citizen of the UK and Colonies who entered the U.S. on a British passport.
• In 1963, Kenya declared its independence from Britain, and Chadha was not recognized as a citizen or resident of Kenya because his parents were Indian.
• Chadha was also not recognized as a citizen of India because he was born in Kenya.
• Chadha was stripped of his right of abode in the UK under the Immigration Act of 1971 due to his lack of connection with the UK.
• Chadha’s visa expired in 1972, and none of the three countries would accept him into their territory. He was de facto stateless.

So, what happened in this case from a separation of powers perspective?

The

Congressional Review Act

Congressional Review Act (1996)

Congress passed a law that allows it to overturn recently issued regulations (60 days) by majority vote with limited debate, and with the President’s signature.

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Commentary in 2017: “Health, safety, consumer and environmental standards that took years of resource-intensive analysis, comment and review can be wiped out in a matter of days or even hours.”

Some political background

Part of Newt Gingrich’s “Contract with America”

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(image from Atlantic article)

CRA was largely dormant for decades…

2001 – 1 successful use

2017 – 15 successful uses

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FYI: On May 16, 2017, Senators Cory Booker and Tom Udall introduced S. 1140, a bill to repeal the Congressional Review Act.

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