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Administrative Law - Verkuil - Fall 2001

Administrative Law - Verkuil - Fall 2001 -...

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I. Legislative Control of Administrative Discretion A. Methods of Legislative Control . Congress has a wide variety of means, both statutory and nonstatutory, by which it can seek to control agency discretion. 1. The enabling legislation under which an agency will operate can specify its degree of authority. 2. Specific agency decisions can be overruled by passing legislation. 3. Appropriations can be wielded to punish or reward agencies and restrictions can be placed on the use of appropriated funds. 4. Legislative Review—this process requires agencies to submit all new rules for legislative review, stays the implementation date of major rules to give Congress the opportunity to review them before they are effective. 5. Political Pressure—use of committee reports, oversight and investigatory hearings, and the nomination process. In most cases, Congress has given agencies considerable discretion by passing enabling acts that are effectively standardless. Such delegations have three general flaws: i. failure to provide any standards to indicate when or how an agency should act; ii. provides a standard so broad that it is capable of elastic interpretation; or iii. provides so many inconsistent standards that any agency action can be defended as being consistent with one or more of them. Why does the legislature delegate so broadly? It allows Congress to take credit for the good things an agency does, while disclaiming responsibility for unpopular policies. Also, the legislature rarely has the time nor the necessary expertise to consider the matters decided by administrative agencies. B. Legal Limitations on Agency Control . Besides political and institutional influences, legislative decisions concerning how to structure and oversee agency government are constrained by legal limitations. Congress must respect constitutional requirements such as separation of powers and due process. In addition, it cannot force an agency to act inconsistently with the APA or its statutory mandate except by amending those statutes. 1. Nondelegation Doctrine . The Constitution provides that all legislative powers shall be vested in a Congress of the United States. This provision is both a grant of power to the Congress and limitation upon its use. It prohibits Congress from delegating its legislative powers to any other institution. That prohibition suggests that broad and vague delegations of power to administrative agencies may be unconstitutional. www.swapnotes.com
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a. Traditional test . Broad delegations were permissible provided that Congress established a sufficiently “intelligible principle” to which the agency must conform in order that the judiciary would be able to determine whether an agency was meeting the intentions of Congress.
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