Agency cannot cure an unlawful delegation of legislative power by adopting in

Agency cannot cure an unlawful delegation of

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Agency cannot cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute – by declining to exercise some of that delegation power Whether the statute delegates leg power is a question for the courts, and an agency’s self- denial has no bearing on answer o The Court has found “intelligible principle” lacking in only two statutes: “We have almost never felt qualified to second-guess Congress re: the permissible degree of policy judgment that can be left to those executing or applying the law” Allows a certain degree of discretion in most exec and jud action o Concurrence (J. Stevens) Scalia is being insincere The court should either (1) admit that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional b/c adequately limited by the terms of the authorizing statute; or (2) pretend that the authority delegated to the EPA is not leg power An executive agency’s exercise of rulemaking power pursuant to a valid delegation from Congress is “legislative” Stevens claim this interpretation is more faithful to English language and the text of the Constitution, which does not purport to limit the authority of either the recipient of power to delegate authority to others Cits to cases that admit agency’s exercise of leg power: Bowsher – “ind agencies do indeed exercise leg powers”; Morrison authority granted to Cabinet is properly characterized as executive even though not exercised by the Prez o Concurrence (Thomas) Constitution does not speak of an “intelligible principle” – rather, it vests all leg power in the Congress (25) Agency Relations with Congress and President: Congressional Oversight (1142-45) Background o Before 1933, few agencies to oversee, and Congress devoted little effort to monitoring o During the New Deal, agencies proliferated; Congress implemented Legislative Reorganization Act of 1946 , 2 USC 31, which signaled a new commitment to oversight and started a process by which Congress and its committees added legislative staff to accomplish this goal o Conventional wisdom of the 1950s – oversight could effectively assure majoritarian control of policy Problems with oversight 45
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Legislation Regulations (Brudney) Spring 2012 Outline o Opportunity costs/time-consuming: time monitoring agencies vs. time on fundraising, casework, enacting new programs – latter are more imp to reelection o Partisan politics eviscerate oversight: when Congress is controlled by the same party as Prez, little critical oversight expected o Leg oversight committees may become captured by the same forces that capture agencies – interested persons/firms o Partisan gridlock – Congress is more interested in adding new laws than enforcing old ones o May face frustrating obstacles in obtaining info from the agency, esp. executive branch agencies o Individual rights: Overreaching or violating rights – i.e. witch hunt for homosexuals and
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