a. An “intelligible principle” Administration State Overview ● Article II charges President with “taking car that the laws shall be faithfully executed” ● Article II also contemplates that President will appoint “principal officers” for unspecified “executive departments” ● The first congress authorized the President to appoint several such officers, including an AG, a Secretary of State, a Secretary of the Treasury, etc. ● But for almost exactly 100 years, the machinery of the federal executive branch was quite limited ● This changed the establishment of ICC in late 19th Century ● 2 key changes: ○ (1) rulemaking power; ○ (2) independence ● This was the modern bureaucracy born Nondelegation Doctrine Overview ● Rise of administrative state created many important constitutional questions ● Can Congress delegate legislative power to executive branch agencies supervised by the President? ● The official answer has always been NO; only Congress can exercise legislative power ● BUT from the beginning, courts have recognized that execution of the laws will often require “filling up the details,” and adopting rules to ensure consistency. ● In other words, the line between legislative and executive power is murky and courts have generally refused to police it Whitman v. American Trucking Ass’ns (2001) ● Section 109(b)(1) of the CAA instructs the EPA to set “ambient air quality standards … which in the judgement of the administrator … are requisite to protect the public health ” Which of the following best captures the issue facing the Court?
● Whether Section 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA) in violation of the nondelegation doctrine Which of the following best captures the question of institutional choice in this case? ● Whether Congress or an expert executive-branch agency under supervision of the President should make technical decisions about air quality standards 1. The nondelegation doctrine prohibits any delegation of Congress’s legislative powers 2. Therefore, when Congress confers decisionmaking authority upon agencies, the legislation in question must “lay down an intelligible principle” to which agency is directed to conform 3. A court is almost never qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law Evil v. Powers In his latest attempt to get ahead of the news cycle, President Donald Trump proposes the creation of a new federal agency to replace the EPA, IRS, Department of Education, Department of Energy, and several dozen other, smaller agencies. The new agency will be called the Department of Greatness (DOG) and its mission will be simple but wide-reaching: “to make America great again.” Congress swiftly drafts and passes legislation authorizing the new agency and conferring on the agency power “to make and enforce whatever rules are appropriate, in the judgment of the agency director, to make America great again.” Trump signs
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- Test, Articles of Confederation, The Ambassadors, The American, Sula, United States Constitution, Supreme Court of the United States, U.S. state, United States Congress, Brown v. Board of Education, McCulloch v. Maryland, Civil Rights Act of 1964, Buckley v. Valeo, Gibbons v. Ogden, Brandenburg v Ohio