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SEPARATION OF POWERS AND DUE PROCESS Legislative power Nondelegation A.L.A. Schechter Poultry Corp. v. United States (U.S. 1935)?NIRA permitted the President to create codes of fair competition. Majority (Hughes): Unconstitutional. The President's discretion in approving or prescribing codes, and thus enacting trade laws, is virtually unfettered. o NIRA's alleged constitutional faults are: lack of fair procedure, no rules of conduct, and no subjectmatter restrictions. Concurrence (Cardozo): The President's discretion is too openended because it allows him to decide what are desirable industry practices, not just eliminate certain undesirable practices.
Benzene Case (U.S. 1980)??Statute authorized Secretary of Labor to promulgate regulations eliminating "significant risks of harm" in the workplace. Plurality (Stevens): The Secretary cannot promulgate regulations banning a certain chemical without first demonstrating a significant risk of harm and the feasibility of banning it. o Uses the nondelegation doctrine as a canon of statutory construction?
("Significant risk of harm" as an intelligible principle saving the statute.) Concurrence (Powell): The statute requires costbenefit analysis before the Secretary can even make this determination. Concurrence (Rehnquist): The statute creates a standardless delegation of legislative power; the word "feasible" in the statute is a mere mirage. o Strongform nondelegation doctrine. Dissent (Marshall): The Secretary found the significant risk required. o Deference to agency expertise.
Whitman v. American Trucking Associations (U.S. 2001)??
Clean Air Act granted the EPA considerable discretion to create NAAQS. Majority (Scalia): We have never demanded that statutes provide a determinate criterion for saying how much of the regulated harm is too much. o Also rejects the "subsidiary principle" that agencies can tie their own hands with regard to exercising their delegated legislative powers and thereby avoid a non
delegation problem. Concurrence (Thomas): The intelligence principle doctrine is a poor proxy for impermissible delegations of legislative power. Concurrence (Stevens): Let's acknowledge that this power is legislative, but constitutional because adequately limited by the statute's terms.
INS v. Chadha (U.S. 1983)?Statute permitted either house of Congress to nullify Attorney General's decision to suspend a deportation via resolution. Majority (Burger): Adopts a formalist view about the difference between executive and legislative power. Dissent (White): If Congress may delegate lawmaking power to agencies, it is difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself.
Executive power Appointments Buckley v. Valeo (U.S. 1976)?
FECA created the FEC with six voting members---two appointed by the President with confirmation by both chambers, two by the Speaker, two by the Senate President Pro Tem. Per curiam: Any appointee exercising significant authority pursuant to federal law is an "Officer of the United States," and must therefore be appointed in the manner prescribed by SS 2, clause 2 of Article II. While the Clause authorizes Congress to vest the appointment of the officers in courts of law or heads of departments, neither the Speaker nor the President Pro Tem comes within this language. Nor does the Clause provide for House confirmation of appointees at all.
Edmond v. United States (U.S. 1997)?
The Coast Guard Court of Criminal Appeals' decisions are subject to review by the Court of Appeals for the Armed Forces. Court had two civilian members, appointed by the Secretary of Transportation without Senate confirmation. Majority (Scalia): Whether one is an "inferior" officer depends on whether he has a superior. Because the JAG cannot reverse the court's decisions, and the Armed Forces appeals court can only render a final decision if permitted to do so by other executive officers, the Coast Guard court does not function as an "inferior."
Free Enterprise Fund v. Public Company Accounting Oversight Board (U.S. 2010)?
SOX created the Board and provided that its members are appointed by the SEC and removable by the SEC for cause. Majority (Roberts): The SEC commissioners can collectively serve as the "heads of department" constitutionally permitted to appoint Board members.
Removal Myers v. United States (U.S. 1926)?
President Wilson fired the Postmaster General, without Senate consent, before the expiration of his term. Majority (Taft): The President's authority to remove is innate to his executive power.
Humphrey's Executor v. United States (U.S. 1935)?
FTC was created as an independent agency. President Roosevelt fired an FTC commissioner. Majority (Sutherland): Congress's intention that the FTC be independent would be frustrated by this claimed power of removal. o At least for purely executive officers (such as Cabinet secretaries), Myers survives, but perhaps not for those with quasilegislative or judicial power like FTC commissioners.
Morrison v. Olson (U.S. 1988)?Ethics in Government Act created the post of independent counsel, who could only be removed by the Attorney General and only for cause. Majority (Rehnquist): The forcause requirement does not unduly restrict executive authority, because the executive retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities. Dissent (Scalia): The Constitution does not permit the statute to reduce presidential control over executive officers at all. o Since the independent counsel looks like a purely executive officer, Scalia would probably say this looks a lot more like Myers than like Humphrey's Executor. Then again, Rehnquist's argument has some Humphrey's Executor support, since Congress intended that the counsel be independent. o A longterm decline in the President's removal power:
? Myers: President can remove officers at will.
? Humphrey's Executor: President can remove purely executive officers, but Congress can reasonably protect other officers from dismissal.
? Morrison: President can remove officers essential to the exercise of his duties at will, but Congress can reasonably protect other officers from dismissal.
Free Enterprise Fund revisited?
Majority (Roberts): The (independent) SEC can only remove board members for cause, and removal requires a formal SEC order and is subject to judicial review. By granting the Board executive power without the executive's effective oversight, SOX subverts the President's ability to ensure that the laws are faithfully executed. The Act imposes a new type of restriction---two levels of protection from removal for those who nonetheless exercise significant executive power. Dissent (Breyer): Because the SEC is already independent of executive control, SOX's restriction on the SEC's power to remove Board members does nothing to limit the President's power, which is already nonexistent.
Presidential review of agency actions E.O. 12866 (1993)
???Executive branch agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating. "Significant regulatory action" means $100 million or more annual effect (costs or benefits); creates serious inconsistency with action of another agency; materially alters budgetary impact; or raises novel legal or policy issues. o Agencies tend to call their work "significant" so that the White House can lend political cover. Agencies must submit significant regulatory actions to OIRA along with text of draft regulatory action and assessment of costs and benefits. OIRA has 90 days or longer (extensions are common) to review. If OIRA rejects a regulation, the OIRA administrator should submit in writing some rationale for the rejection. "OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA." President or Vice President can resolve disagreements among agency heads that can't be resolved by the OIRA administrator. (In reality, generally handled by White House staff.)
E.O. 13563 (2011)?
"Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts." Retrospective analysis of existing rules and ex post review of implemented rules.
Judicial power Crowell v. Benson (U.S. 1932)?Employees' Compensation Commission was given factfinding power. Majority (Hughes): Congress may substitute for Article III courts an administrative agency for factfinding in a right of action created by Congress. o The classic Crowell formulation is that public rights (those created by federal statute between citizens and the federal government) can be adjudicated in an Article I court, but private rights (those arising between private parties) must be adjudicated in an Article III court. Dissent (Brandeis): Why bother letting an agency find facts if Article III courts can redo the entire process?
Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (U.S. 1982)?Bankruptcy Act gives bankruptcy judges the power to decide all "civil proceedings arising under" federal bankruptcy laws, "or arising in or related to" bankruptcy proceedings. Can bankruptcy judges also hear state law claims?
Plurality (Brennan): No. Because the claim arises from state law and not an Act of Congress, it is not within the purview of an Article I court, unlike Crowell. Dissent (White): In practice, there is sufficient Article III supervision over bankruptcy judges' decisions.
CFTC v. Schor (U.S. 1986)?CFTC decided certain statelaw counterclaims. Majority (O'Connor): Rather than rely purely on the private/public rights distinction, consider whether the interest is "personal" or "structural." A personal interest is one that a private party can waive without threatening the separation of powers. Since the statute allows litigants to choose between an Article III court and this Article I court, that is no more constitutionally problematic than arbitration. Dissent (Brennan): Stick to the Northern Pipeline rule about statelaw claims.
Stern v. Marshall (U.S. 2011)?Congress amended the Bankruptcy Act in 1984 to make bankruptcy courts more Article IIIlike---judges would now be appointed by the courts of appeals (not the executive) and would be removable only for cause, with 14year terms; bankruptcy courts could only enter final judgments in "core" proceedings; but jurisdiction still extends to "all matters of fact and law in whatever domains of the law to which" a counterclaim may lead, and Article III courts can set aside bankruptcy courts' findings of fact only if clearly erroneous. Here, the bankruptcy court adjudicated a statelaw tort claim. Majority (Roberts): Because of the Act's broad grant of jurisdiction and imposition of a clearly erroneous standard of review, Congress has not given Article III courts sufficient supervision. Dissent (Breyer): Take a pragmatic, Schorlike approach to evaluating the bankruptcy court's function.
Due process Goldberg v. Kelly (U.S. 1970)?
New York law provided for immediate termination of AFDC benefits without the availability of an oral hearing (just a notification letter). A pretermination evidentiary hearing is necessary to provide the welfare recipient with procedural due process. Such hearing need not take the form of a quasijudicial trial, but the recipient must be provided with timely and adequate notice and an effective opportunity to defend by confronting adverse witnesses and presenting his own arguments and evidence orally.
Mathews v. Eldridge (U.S. 1976)?
Due process does not require a Goldberg hearing prior to the termination of SSDI benefits. Claimant's private interest multiplied by the value of additional procedures must outweigh increased burden on government of providing procedures, or else those added procedures are not justified.
Londoner v. Denver (U.S. 1908)
?Plaintiff was provided with notice of a property tax assessment to pay for local improvements, but had no opportunity for a hearing---the notice only fixed a deadline for the filing of written complaints and objection. Where a legislature delegates its taxlevying power, due process requires that the taxpayer have an opportunity to be heard, of which he must have notice. o Perhaps the oral hearing requirement stems from the state's denial of judicial review; if citizens had access to some kind of judicial forum, opportunity to file written objections might suffice, but without that option, we have due process concerns.
BiMetallic Investment Co. v. State Board of Equalization (U.S. 1915)??
State Board of Equalization raised property taxes. Plaintiffs were not given an opportunity to be heard. Due process protections attach where a small number of people are affected in individual ways, as in Londoner (legislative versus adjudicative facts distinction). Rulemaking affects a large number of individuals and arises from facts that are applicable to certain classes within society, rather than individualized facts about the parties. Adjudication, by contrast, requires casebycase determination. Also the statute here did not preclude judicial review, so due process concerns are lessened.
THE APA AND AGENCY PROCEDURE The statute Rulemaking versus adjudication (defined in SS 551)Rule = agency statement of general or particular applicability and future effect designed to implement law or policy or describe organization and includes approval for the future of rates, wages, financial structures, prices, or practices.
? Rulemaking = agency process for formulation of a rule.
? Order = the whole or part of a final disposition of any agency in a matter other than rulemaking, but including licensing.
?????Adjudication = agency process for formulation of an order.
?????Advantages and disadvantages of each: o Interpretation of rules creates very strong precedent within the agency; it can only change policy by undergoing a new rulemaking. Adjudications can more easily be distinguished and overruled. o Rules will probably take effect faster and affect the industry faster, but will be more public and more vulnerable to industry lobbying. Rulemaking Informal (SS 553)Agencies are required to provide the public with adequate notice of a proposed rule followed by a meaningful opportunity to comment on its comment. SS 553. Matters "of
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