Kaufman, E_LRS_Spring2022[A-]

Structural Problems with the Agency Nondelegation Doctrine Did Congress delegate its power impermissibly to the agency? Test: Is there an “intelligible principle”?  Gently tested A.L.A. Schechter Poultry Corp. v. United States stands for the proposition that providing immense discretion with only “fair competition” as the guideline constitutes transferring the function of lawmaking and is an impermissible delegation  Cannot have a “roving executive”  Latent concern about delegation to private parties J.W. Hampton, Jr & Co. v. United States stands for the proposition that directing the President to adjust tariffs in order to equalize the costs of production constitutes an intelligible principle, making the executive branch an agency and not a principle and does not delegate lawmaking Yakus v. United States stands for the functionalist proposition that Congress cannot investigate, know, or respond to everything, so delegating the ability to set a maximum commodity price to avoid hoarding allows Congress to make use of “necessary resources of flexibility and practicality” while allowing Courts to decide whether the Exec obeyed Congress’s will United States vs Gundy stands for the proposition that an intelligible principle may be as broad as “as soon as feasible,” and that text and legislative history can glean intelligible principle  Dissent raises specter of nondelegation and indicates an appetite to revive the doctrine, as well as a practical concern that Courts are doing the nondelegation doctrine by a different name o Raises fair notice concern with changeability Industrial Union Department, AFL-CIO v. APF (the Benzene Case) stands for the proposition that, in absence of a clear mandate, the Court will not read in broad delegation to grant “unprecedented power over American industry,” e.g. cost-benefit analysis ( nondelegation canon )  Rehnquist concurrence: Congress improperly delegated its authority because it is best suited to weigh probability of death against costs as a policy choice  Marshall dissent: Vague, definitional requirement should not overcome specific standard- setting provision required by the statute Justification/Pros of nondelegation doctrine Criticism/Cons of nondelegation doctrine  Textualist: Vesting Clause  Bicameralism and presentment  Protects formalist separation that makes government efficient/expert in different areas  Protects functionalist checks/balances by making accumulation of power harder  Antidemocratic  Allows legislators to evade accountability  Encourages Congress to get less done because agencies will do it  Congress is better suited to make policy determinations (democracy)  Textualist: Necessary & Proper  BC & P followed when delegation authorized  Turn to agencies because system is broken  Administrative expertise  Nonpartisan/insulated  Less crowded agenda, uses info efficiently  Legislative process is SLOW What if…. 1. Congress gave agency unlimited discretion over a very narrow policy area? 2. Congress placed strong procedural limits on agency but gave it authority over a broad substantive area?

Justification of Separation of Powers Criticism of Separation of Powers  Expresio Unius in enumerated powers  Structural evidence for limited interference of other branches  Makes government efficient to separate function  Laws made with common interest  Administrators are impartial  Prevent a breach by executive branch  “Ambition counteracts ambition”  checks/balances, consolidation of power  Encourages deliberation, cooperation  Mixed voices/opinions heard  Did not include other restrictions on the state from the time period  Structural evidence for multibranch participation in impeachment/treaties/appointments  Constitution leaves much undecided  Congress is slow/not functional  Nimble response to emergencies Legislative Veto Test: Congressional action that circumvents bicameralism and presentment is an impermissible check on agencies INS v. Chadha stands for the proposition that action overturning an agency action from one house of Congress violates the separation of powers by circumventing Art. I §7  Concur: constitutes impermissible judicial action Justification of Legislative Veto Criticism of Legislative Veto  Formalist distinction of types of power does not stand up  Long-standing practice  Congress can correct communication mistakes  Congress can influence application of legislative intent over time  Madison: legislatures must be divided to avoid predomination  If Congress does not like outcomes of delegating, don’t delegate  Functionalist: dodges accountability  Encourages sloppy laws  Opens door to political influence Other Methods of Congressional Control 1. Organic statutes/APA 2. Hearings, Investigations, Press releases 3. Appropriations/budget riders Does the President have enough control? Doctrinal Grey Area 1. Is substantive delegation more important or breadth of discretion? 2. Is there a “sliding scale” between the two? 3. Has major questions doctrine revived nondelegation canon? Policy Questions 1. Do Congressional checks on agencies support democracy? 2. Can Congress control the executive branch, or is it unwilling to? 3. What role do Courts play in policing the relationship between the political branches? What role should they play?

Early vision  proto-unitary executive Early vision  independent agencies Myers v. United States – President has plenary removal power of executive officials  Textualist/Formalist hook: Art. II §1 Vesting clause, would have been an exception  Counter: Expresio unius , why are other powers listed?  Art. II §2, Appointments clause does not mention removal  implicit in appointment?  Art. II §3 Take Care, President must execute laws faithfully, can’t be dragged down Humphrey’s Executor v. United States – Congress may limit removal to for-cause removal for independent agencies and accommodate diverse structural arrangements  Formalist distinction between “purely executive” and quasi- legislative/judicial function  Logical limit  standardless analysis permitting any balance of power Test for principal vs inferior officers ( Morrison ) 1. Subordinate to some higher authority a. Only factor remaining after Edmond , reaffirmed by Arthrex 2. Duties are limited in scope 3. Jurisdiction is limited 4. Tenure is limited Morrison v. Olson stands for the proposition that tenure protections for inferior officers are permissible so long as they do not “unduly trammel” President’s power by Congress grabbing a role in removal of officers in violation of the “Take Care” clause  Functionalist account of types of power yields balancing test  Dissent (Scalia): President is source of political accountability and cannot exercise his exclusive control when his removal power is hobbled Edmond v. United States stands for the proposition that subordination to an executive official other than the President is dispositive in the line between inferior and principal officers Free Enterprise Fund v. PCAOB stands for the proposition that executive officers may not be insulated by two levels of nondiscretionary removal since President must maintain oversight and cannot be reduced to the “cajoler-in-Chief”  Dissent (Breyer): Functionalist balancing between separation of powers and necessary and proper clauses requires context examination, not bright-line rules Seila Law LLC v. CFPB stands for the proposition that executive officers must be accountable to the President and tenure protections for a single agency head remove accountability  Presidential power over firing is now the baseline  Dissent (Kagan): Zones of administrative independence are the result of compromise by the political branches  Gerrymanders Morrison and Humphrey’s as exceptions Test for inferior officers vs mere employees 1. Hold continuing office 2. Officers “exercise significant authority” ( Buckley ) 3. Functionalist comparisons reveal indicia, including: ( Lucia ) a. Holding continuing office b. Exercising broad discretion to conduct trials, order discovery, take testimony c. Make (potentially) final decisions (not dispositive) d. Reason by analogy to Lucia

Buckley stands for the proposition that inferior officers are those who “exercise significant authority” Lucia v. SEC stands for the proposition that holding continuing office and making potentially final decisions and wielding the ability to subpoena, compel discovery, and conduct trials satisfies the “exercise significant authority” requirement  Concur (Thomas): all officials who perform ongoing statutory duty are officers  Dissent (Sotomayor): Ability to make final, binding decisions is dispositive United States v. Arthrex, Inc. stands for the proposition that when APJs hold binding decision authority not subject to superior review, they cannot be acting within the scope of inferior officers because they lack the necessary political accountability  Dissent (Thomas): This reflects a vesting clause/oversight issue, not an appointments clause issue Appointments Removals Principal Officers Art. II, §2, cl. 2 WACOS For-cause removal protections are appropriate unless they “unduly trammel” the President’s authority (degree of authority)  Quasi-judicial power, lack of policymaking, and lack of ability to burden control = less likely to “trammel” Cannot have single-member head with for-cause protection ( Selia Law ) Inferior officers cannot make binding decisions not subject to political accountability ( Arthrex ) Inferior Officers President, agency head, court Cannot have two layers of tenure protection for officers ( PCAOB ) Mere Employee s Silent Merit Services Protections Board Justifications of broad removal powers Criticisms of broad removal powers  Limits tyranny of Congress by shifting power to President ( Arthrex )  Information asymmetry on actual performance implicit in removal, not appointments  Limits Congress’s ability to sabotage/sandbag the President  Affirms political accountability ( Selia Law )  Necessary & Proper clause permits Congress to make structural innovations ( Selia Law dissent)  Frustrates administration of law by competent experts  Selection effects without tenure  Congress may delegate more if removal is limited, promoting efficiency/discretion  Prevents consolidation of power in executive branch Lucia, Buckley Morrison, Edmond Doctrinal Grey Area 1. No clear line between inferior/principal officers 2. Unclear whether ALJs can have tenure protection or whether political appointees must review their decisions 3. Was the thrust of Arthrex a concern about the ability to set the agenda or negate specific decisions by agencies nominally within the executive branch?

Was the proper process followed? Justifications for agencies Critiques of agencies  Lack of congressional expertise  Agency specialized knowledge  Flexibility/responsiveness  Political insulation from majoritarian pressures  Technocracy because politics is broken  Congress has chosen this method to respond to complex needs  Insulation from political accountability  Insulation from democracy  No benefits of slow, deliberative process  Congress dodges political accountability Adjudication May non-Article II tribunals adjudicate? Test: Is this a political attack by Congress on the independence of the judiciary? (functionalist) Policy Questions 1. How much do agency norms govern tenure protections/insulation? 2. What are the balance of power implications in removal protections? 3. What restrictions better progress the goals of limiting political influence? SHOULD political influence be limited? 4. Which branch threatens democracy? a. Do agencies threaten separation of powers? 5. Does structural innovation by Congress or political review by the President promote democracy? Londoner, Bi- metallic Florida East Coast RR Rulemaking Adjudication Formal §556-557 outlines procedures §553(c) triggers (“magic words”) Notice (§553(b)) Hearing On the record decision “on the record after opportunity for an agency hearing” Notice (§554(b)) Hearing, adversarial, typically includes oral presentation §554(a) and (c)(2) trigger  Not magic words, more weightiness Informal §553 governs Notice & Comment Notice of Proposed Rulemaking in Fed. Reg. (§553(b)) Public comment (paper hearing) (§553(c))  Final rule must address important comments ( Nova Scotia ) Statement of basis, purpose, legal authority for rule Most rulemaking conducted in this way Minimal process, not covered by APA Procedures not specified Constitutional due process required