Chronology of Admin Law

I. Strict Separation
a. John Manning law making made easy
i. Law making is supposed to be really hard under madisonian idea
II. 1887 Rational Instrument (ICC interstate commerce commission didnt want want
cars to sit ideal or for excessive charges, didnt want competing rail lines.)
a. Before the ICC could set a rate, they had to hold a full hearing
b. FDR congress was willing to give him authority
c. Agencies could regulate in the public interest
d. James Landis believed we had too many politicians and not enough experts
III. 1932 Deliberative Constitutive
IV. 1946 Fierce Compromise (APA)
a. Progressives (Woodrow Wilson and Teddy Roosevelt) pushed for extensive
reform.
b. Teddy wanted to streamline law-making (i.e. get rid of excess checks)
V. 1970 The Reformation (FOIA, NEPA, Citizen suits)
VI. 1980 The Counter-Reform (A lot of agency regulatory power was absorbed into the
White House)
a. Ted Kennedy w/ chief counsel J. Breyer start to deregulate industries that had
been unnecessarily regulated
b. Ready was a huge supporter of deregulating
i. Stephen Breyer and Cass Sunstein advanced the idea that there could be
govt failure just as there could be market failure.
c. Think about where Scalia is in everything
i. Favors a robust Executive Branch

9/6/17
I. NLRB v. Noel Canning
a. Recess Appointments Clause authorizes president to fill any existing vacancy
during any recess whether during or between sessions of Congress of
sufficient length. However, for purposes of the clause, the Senate is in session
whenever it indicates that it is, as long as under its own rules it retains the
capacity to transact Senate business. Scotusblog.com
II. DACA Current event
a. DACA created by Obama administration to provide legal residency to qualifying
illegal immigrants
b. U.S. v. Texas (DAPA) similar issue with question of whether the guidance
violates the Take Care Clause of the Constitution, Art. II 3.
III. Concept of Legislative power
a. John Locke
i. Asdf
b. Montesquieu
i. When the leg and exec powers are united in the same person, the result
will be tyranny
 c. We have never had (nor attempted to have) a strict separation of powers.
IV. Non-delegation Doctrine
a. Not OK: Our members of Congress could not, even if they wished, vote all
power to the President and adjourn sine die. Mistretta v. US (Scalia Dissent)

9/11/2017
I. How much authority may be delegated?
a. Problems = Questions of Degree
1. Is this vague?
2. How vague is this?
3. How vague is this sentence?
ii. Judges prefer clear lines easier to apply
b. The New Deal
i. Massive change in admin law
ii. Agencies received astonishing grants of power over the nations economy
1. Agencies could regulate in the public interest
iii. Hampton v. U.S. must an intelligible principle
iv. Panama Refining
1. First case to strike down statute on non-delegation grounds
2. Statute said president could prohibit the transportation of
petroleum at the presidents discretion
a. Nothing about goals, how, why, etc.
b. Didnt give any reasoning required to stop it
3. SCOTUS shut down because there was no intelligible principle
v. Schechter Poultry
1. Said president could approve codes of fair competition
a. NIRA part of black monday
2. Struck down by unanimous SCOTUS
a. Court would not let this government centralize everything
vi. Switch in time that saved nine
vii. Mistretta Need standards that are sufficiently detailed
1. Is it constitutional to turn over sentencing to an agency?
a. SCOTUS says yes
i. Scalia Dissents No junior varsity Congress
ii. Scalia is not against delegation but is against
agency making law independent of congress rather
than in act of executing the law
b. Intelligible principle
i. assure the purposes of the act
ii. provide certainty and fairness
viii. Whitman v. American Trucking -
1. Scalia Camp Not legislation must be in enforcing the law
a. Congress doesnt hide elephants in mouse holes
2. Thomas
 3. Stevens Is legislation & its ok
4. Roberts Is legislation & its not ok

9/13/2017
II. It is very, very, very hard to win a non-delegation challenge. Only two successful
challenges, both in 1935.
a. Yakus (1943)
i. Generally fair and equitable = fine, intelligible principle
III. Is nondelgation all dead or only mostly dead?
a. Mistretta fn. 7 is very important
i. Application of nondelegation had been limited to statutory texts and
more particular giving narrow constructions to aid in interpretation
ii. Modern restatement of administrative law
iii. Blackmun sufficiently specific and detailed
iv. Scalia cant exercise an exclusively legislative power
b. Benzene Case
i. Agency said there is no safe level for benzene and set a value for limiting
its use
1. Is this not just a scientific conclusion?
a. They were really make a policy decision about how many
people should live or die.
ii. Congress shall set the standard which most adequately assures, to the
extent feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health
1. SCOTUS: The agency must first find that regulation is reasonably
necessary under section 3(8) before applying section 6(b)(5), and
safe under section 3(8) does not mean risk free
a. This is very unusual statutory interpretation
iii. Stevens sweeping delegation, it might be *** finish quote
iv. If there a broad way to read it and a narrow way to read it, the court will
go with the narrow way.
1. This acts as a check on the amount of delegated authority
v. Rehnquist
1. This is a nondelgation case; the science is unsettled, so what to do
is a pure policy choice. Congress punted to the agency. Weighing
the cost of death isnt something an agency should do. Hard
choices belong to congress.
IV. How can congress override the exec?
a. Pass a statute
b. One house veto - Chadha
c. Two house veto
i. Congressional Review Act
 1. Before an agency can pass a very significant policy, they have to
go to a congress who can vote on it. Problem is that President
would veto the vote.
2. Has been used a ton this year
ii. REINS Act Too much delegation, so Agency must propose it to Congress
1. Bicameralism or presentment problem
d. Turn agency action into agency recommendations
e. Informal pressures
i. Not all of these tools are constitutional
ii. Administrative Pressure
iii. Hearings
iv. Confirmation Process
v.
V. Chadha One house veto
a. Congress can only act as congress parts of congress cannot act by themselves,
even if delegated authority this is formatlistic. Bicameralism and Presentment
make it harder for Congress to make laws that is part of what they are there
for.
b. Is overturning the AG about a specific deportation leg. Power or is it judicial?
See J. Powell
c. Isnt it interesting that the AG should have such awesome power. Is this really
exec. Power?
VI. Imagine that Congress gives an agency authority to set the volume of fruit that can be
sold in US commerce. The agency is given authority to punish fruit growers that sell too
much fruit in the US, with the agency deciding what constitutes too much
a. A fruit grower files suit against the agency, claiming that this grant of authority
to the agency is too great.
b. How would a court likely rule?
VII. Power of Dead Hands
a. Old laws still dictate current laws hard to enact or change laws
b. Same applies to agency action but may be easier for agencies to do things that
current majority doesnt like
c. If a significant portion (which can be short of a majority of the public) of the
presidents base wants something, a president may go ahead and do it,
especially if it can be done w/o costing enough votes to lose an election.
d. If the status quo is agencies have discretion, then they can do things lacking
majority support. Bicameralism and presentment, intended to make it hard to
circumvent majority will, instead thwarts majority will.
VIII. So how do we determine when agencies overstep?
a. International Show offends traditional notions of fair plan and substantial
justice
i. These are just words there a placeholder for future policy
IX. How are agencies staffed?
a. Depends on how important the position is
 i. Principal Officer vs. Inferior Officer
1. Congress may by Law vest the Appointment of such inferior
officers, as they think proper, in the President alone, in the
Courts, or in the Heads of Departments
2. If not officer (just a federal employee), congress can do whatever
b. Who is an officer?**
i. Buckley v. Valeo
1. Important 1st amendment case
2. Primary case about whether someone is an officer
3. Structure of FEC (campaign finance committee) is challenged
a. Had 2 appointees from each: president, house, senate
b. SCOTUS says the structure is unconstitutional because
Congress cannot appoint officers
4. Test for whether someone is an officer:
a. We think the term Officers of the United States [is] any
appointee exercising significant authority pursuant to the
laws of the United States
i. Intelligible principal problem
b. Officers of the US can only be appointed pursuant to the
Appointments Clause
5. Congress had good reason for not vesting in a Commission
composed wholly Presidential appointees the authority to
administer the Act, since the administration of the Act would
undoubtedly have bearing on any incumbent Presidents
campaign for re-election. While one cannot dispute the basis for
this sentiment as a practical matter, it would seem that those who
sought to challenge incumbent Congressmen might have equally
good reason to fear a Commission which was unduly responsive
to members of Congress whom they were seeking to unseat.
ii. Freytag v. Commissioner of IRS (Ministerial tasks)
1. Tax judges are Officers of the US because they do more than the
ministerial tasks
a. Do they make final decisions? then officer**
2. What about admin law judges? There is a current circuit split.
a. DC circuit says that ALJs are not officers, just employees
b. 10th circuit says that ALJs are officers Judge Matthison,
so they are unconstitutional
c. 5th circuit agreed with 10th
d. DC circuit heard new case and split
c. Who is an inferior officer
i. Morrison v. Olson
1. Independent counsel is an inferior officer
a. Appointed by DC circuit
b. Full power and independent authority to exercise
 2. We need not attempt her to decide exactly where the line falls
between the two types of officers, because in our view appellant
clearly falls on the inferior officer side of that line
a. Some factors for determining whether inferior
i. Subject to removal by a higher executive branch
official
1. Scalia: Not true only removable for cause
ii. Only certain limited duties
1. Scalia: The power to prosecute w/o control
iii. Limited jurisdiction
iv. Limited term (though time limit not necessary)
v. Etc.
3. Disagreement is not good cause
4. The real question is whether the removal restrictions are of such
a nature that they impede the Presidents ability to perform his
constitutional duty.
d. Process
i. Is the person an officer of the U.S.?
1. Does she exercise significant authority pursuant to the laws of
the U.S.?
ii. Is the person an inferior or principal officer?
1. If principal, yesthere must be senate confirmation.
e. Does Edmond v. U.S. change the law
i. Coast Guard Court of Appeals Judges
1. Broad duties
2. No limited tenure
ii. Scalia majority Inferior officers are officers whose work is directed and
supervised by others who were appointed by Presidential nomination
with the advice and consent of the Senate
iii. Because Judge Advocate General can overrule some (but not all) decision,
Coast Guard Court of Appeals Judges are inferior
iv. Freytag Tax judges are officers because they exercise authority
f. Inter-branch appointments are generally fine, so long as it does not impair the
constitutional functions assigned to one of the branches, i.e., if the power is
used in an incongruous way Morrison
i. That doesnt include a court appointing a prosecutor.
1. Why not?
g. If the president can fire you at will, you are not an independent agencyyou are
an executive agency
i. Big Q Are independent agencies constitutional?
h. Removal Power
i. Unitary Executive
1. Theory that president should be able to fire anyone in the
executive branch
 ii. With few exceptions (e.g. impeachment), the Constitution is silent about
removal
1. Options:
a. No presidential removal Impeachment only
b. Whenever President wants (same as the Appointments Cl.)
c. As Congress determines (necessary & proper)
i. Myers v. U.S.
i. President wins
ii. IF president cant remove postmaster at will, then he cant faithfully
execute the laws.
j. Humphreys Executor v. U.S
i. President losesunanimouscould require good cause for
termination
1. Same day as Schecter Poultry (Black Monday)
2. President knew he would lose Schecter Poultry, but thought he
would win Humpreys Executor
ii. Headless Fourth Branch
k. Inf Officer Test
i. First, is the ALJ an Officer pf the US, Under buckley the Q is whether the
appointee exercises significant authority purusuant tto the laws of the
US.
ii. Second, is the ALJ principal or inferior? Under Morrison, factors to
condier include whether alj
X. Free Enterprise Fund v. PCAOB (Humphreys Executor^2)
a. Roberts One can have a government
b. 2x For cause removal
i.

XI.