Admin Outline F06 - Prof Herz Administrative Law Outline...

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Prof Herz. Administrative Law Outline Fall, 2006 1 Administrative Law Outline I. Congress, The President and Administrative Agencies. A. Non-Delegation: A statute may be struck down as an unconstitutional delegation of legislative power if it does not provide an intelligible principle limiting the agency’s [or president’s] power. - Panama Refining Co. v. Ryan : The statute gave the pres authority to prohibit the transportation of contraband oil. But the prob was that it didn’t say when (under what circ’s) the pres can do so. This was held to be an overly broad delegation. o (Side Note: Statute was improperly published, etc., eventually led to the creation of the Federal Register). - A.L.A. Schechter Poultry v. US : The agency was authorized to issue “codes of fair competition.” The concept of “unfair comp” was somewhat established by common law. But “fair comp” can mean anything. o Another prob: The codes could be adopted or rejected by the pres at will. Thus, the whole scheme gives a ton of power and discretion to the pres. Held to be an unconstitutional delegation of power. These two cases (plus a third we didn’t cover, Carter v. Carter Coal ) are the glory days of nondelegation. Since then, it’s been a toothless doctrine. (To see the extent of this, see Scalia’s opinion in trucking on 66). - Whitman v. American Trucking (DC Circuit): Introduces a new view (prof likes this one). The ct says that there is an unconst delegation of power. But then they say that when that happens, it is up to the agency to develop on its own the “intelligible principle” by which they must be restrained (agency “ties its own hands”). This serves two of the three goals of nondelegation doctrine. o Avoid arbitrary exercise of delegated power. o Provide for meaningful judicial review (I assume the cts will hold them to their standard?). square4 Not the third, which is that leg choices be made by congress… - Whitman v. American Trucking (US SC) : Scalia shuts down the approach of the circuit ct. The rule is that Congress must lay down the intelligible principle. Then Scalia shows the history of the nondelegation doctrine, and how it hasn’t had the strength to stop other really broad delegations, so why should it stop this one? Prof also likes Scalia’s dissent in Mistretta (Sentencing guidelines). Scalia said it was an unlawful delegation because it was a purely legislative function; that is, usually, the agency’s task is partly to enforce the rules, but partly to make them, to use their discretion (similar to the way any judge or cop does). But for congress to delegate a purely legislative task, that’s like creating a junior congress, and that’s no good. Even if nondelegation is dead as a doctrine to void statutes as unconstitutional, it still has power as a canon of interpretation. Under this canon, you interpret the statute in the way that avoids nonD problems. “That’s what you meant to say, right???” - Amalgamated Meat Cutters v. Connally : We didn’t cover it, but the ct evidently filled in the gaps of the meaning of the statute with legislative history, previous price control policies, and other stuff. They said the
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