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Administrative Law - Verkuil - Fall 2001 (2)

Administrative Law - Verkuil - Fall 2001 (2) -...

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Administrative Law Outline 1 NON-DELEGATION There is no explicit power in const for congress to delegate its powers (Art I), but when it does so, the statute must: Delegate powers to the agencies w/ certain clarity and assurances Schecter Poultry: Broad declarations of power are not permitted if they convey unfettered discretion and unconstitutional delegation of legislative power . Amalgamated Meat says that congress must put in stature an intelligible principle which the official agency must conform to . Other Cases: Benzene Case: Grant of power to OSHA to set “safe” air toxin level that was “adequately assured to the extent deasible” and OSHA went against consensus and set stringent leve, court remanded saying that OSHA has to do what is safe ; didn’t look at non-deleg. Lochner: Viol of substantive CP and non-deleg to give wide berth to set wages and prices (no guidelines on how to) LEGISLATIVE VETO Under Chada , whenever there is an action of either the house or the senate that is legislative in nature, it is subject to the presentment and bicameral requirements of Art. I. There may be no writ of attainders for any persons EXECUTIVE DISMISSALS/FIRING Under Meyers v. US , the president may remove, w/o advice and consent of the senate, subordinates that are purely executive in nature. He must have full discretion and no undue delay from senate cus that would infringe on exec branch rt to effectively enforce that law Humphreys Executor says that a body created by congress to make legislative policy and perform legal/adjud aid are not executive in nature. Since they are not, then the pres may not remove them Weiner says that the power to remove an adjudicator even with cause is not impliedly conferred to the president just cus the statute is silent CONGRESSIONAL REMOVAL Bowsher says that congress may not remove an executive officer unless it does so through impeachment; bound by meyers . Misretta says that, where congress required three federal judges on a sentencing reform committee, courts said that cus the commission was an independent agency , no power of the judicial branch was weakened. Court has never found that the three branches are hermetically sealed! Olsen says that, re: independent counsel, congress can apparently create an exec off over whom pres has no control and can’t fire w/o cause.
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Administrative Law Outline 2 Metropolitan Washington Airport says congress can’t reserve for self places on commissions cus it limits pres power to appoint officials. DUE PROCESS AND AGENCY POWER Cromwell v. Benson : said that congress can give agencies quasi-judicial powers subject to Art III review if the issue deals with: 1. Jurisdictional issue 2. Fundamental facts 3. Constitutional facts Hypo: Where question was whether D (EE) was on navigable water when he committed tort (thus invoking maritime law), D got de novo review in fed ct subj to “substantial evidence” review of whether he committed the tort.
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Administrative Law - Verkuil - Fall 2001 (2) -...

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