ADMINISTRATIVE LAW spring 2013
B. Adjudic a tor y Procedures (Formal adjudicatory procedures; informal adjudications; the record requirement in informal adjudicatory procedures; the effect of judicial review on informal adjudicatory procedures; limitations on the power of courts to control procedure.)
C. Agency Reasoning and the Relationship between Rulemakings and Adjudications The importance of agency reasoning and the Chenery doctrine; the agency’s power to choose rulemaking or adjudication; the limitations on the power to choose and consequences of the choice.)
B. Review of Fact . (Substantial evidence and arbitrary and capricious review.)
C. Review of Law . (The Chevron test; the Mead reformulation; deference vs. delegation theories.)
A. Availab i lity of Any Judicial Review. (Statutory vs. “nonstatutory” judicial review; provision of review under the APA; express preclusion of review; implied preclusion of review; issues “committed to agency discretion by law”; the constitutionality of precluding review.)
Introduction (Casebook Chap. I)
I. The Rule of Law and the Legality of Government Action
A. Overview
i. Agencies need legal justification to do anything. When presented with agency action, ask whether this was justified by law.
ii. Traditional view of the legality of government action
1. The government cannot break the law, by definition.
2. If a government officer breaks the law, then the government officer is liable in his private capacity; he’s “stripped” of his authority.
a. Little v. Barreme: Captain Little broke the law, but the U.S. did not.
b. Miller v. Horton: Horton broke the law, but Massachusetts did not.
iii. Modern view of the legality of government action
1. Governments can break the law, but are protected by sovereign immunity.
2. The traditional view lingers in naming conventions: the named defendant is still the officer, not the agency or the U.S.
iv. Why is there judicial review of government action?
1. Because private parties can sue each other. The judiciary will need to develop a body of law for distinguishing governmental action (protected) from private action (unprotected) just in the course of adjudicating, e.g., tort cases. Little v. Barreme; Miller v. Horton.
2. It’s authorized by APA § 702, which creates a cause of action for injunctive relief from agencies.
3. The Tucker Act and FTCA create limited causes of action for damages from the government.
4. Congress needs the courts; judicial review protects Congress from executive overreach.
5. Also it exists because it’s very popular.
B. Cases
i. Little v. Barreme (1804 / pg. 942) [officer challenges / traditional view]
1. The naval secretary ordered naval officers to seize ships bound to or from France. Captain Little seized a ship bound from France and was sued in tort by the ship owners.
2. Held: A federal officer may be sued for damages under the common law of tort when the officer acts pursuant to an executive order that was issued further to an invalid interpretation of a statute.
a. Statute: Certain ships bound to France may be seized.
b. Naval secretary’s order: Certain ships bound to or from France may be seized.
3. Upshot: Officers are placed in a bind.
a. They must follow orders, but following an unlawful order will not be a defense against actions in tort.
b. Or they can not follow orders and be fired.
ii. Miller v. Horton (Mass. 1891 / Supp.) [agency challenges / traditional view]
1. A state commission found that a horse had glanders and Horton killed it. The owner sued the officer who killed it in tort for compensation.
2. Held: A statute authorizing commissioners to condemn as nuisances horses infected with farcy or glanders only authorizes condemning those horses that are actually infected. A finding by the commission that a horse is infected is not conclusive in a later judicial proceeding.
a. Statute: In all cases of farcy or glanders, the commissioners, having condemned the animal infected therewith, shall cause such animal to be killed without an appraisal, but may pay the owner or any other person an equitable sum for the killing and burial thereof.
i. Interpretation 1: This covers only those horses that are actually infected; officers who kill healthy horses have no defense to liability in tort.
ii. Interpretation 2: This covers any horse deemed to have been infected by the commission; officers who kill healthy horses have a complete defense.
b. Literally the statute allows for interpretation 1 only. The counterargument is that the statute won’t work if the hatchetmen do not get a defense to liability in tort when the commission is mistaken.
c. Moreover, because interpreting 2 would raise serious constitutional questions in light of the state constitution’s provisions on deprivations of property (a jury-trial guarantee), interpretation 1 must be selected.
3. Dissent: The determination should be conclusive – i.e. a finding by the commission should be a complete defense to liability for the officers. Otherwise, the statute won’t work, and the public health will be at risk.
4. Upshot: Officers are placed in a bind.
a. If they kill an infected horse, they have an absolute defense to liability.
b. If they kill a healthy horse, they have no defense to liability.
iii. The Steel Seizure Case (1952 / Supp.) [presidential challenges]
1. Truman ordered the Secretary of Commerce to seize the nation’s steel mills. The question is whether this order from Truman is an order from the President, i.e. authorized by law.
2. Held: The executive order to seize the nation’s steel mills was invalid, as it was not authorized by a statute, the presence of other statutes strongly implied that Congress had not intended the President to have this power, and the order could not be sustained under the Constitution itself.
a. President conceded it was not authorized by statute.
b. Three statutes were relevant:
i. Selective Service Act of 1948: authorized seizures under some circumstances, which were not present.
ii. The Defense Production Act of 1950: authorized seizures under some circumstances, which were not present.
iii. Taft-Hartley Act: Authorizing certain procedures for resolving labor disputes that did not include seizures and expressly allowed strikes; and an amendment allowing for seizures had been rejected.
c. Three constitutional provisions were relevant:
i. Vesting clause. Rejected. President’s order was legislative, not executive.
ii. Commander-in-chief clause. Rejected. This wasn’t in the theatre of war.
iii. Take care clause. Rejected. This wasn’t a congressional policy being executed, but a presidential policy.
3. Jackson concurrence
i. Executive power at its maximal.
ii. Strong presumption of validity should it come to court.
b. Congressional silence (“twilight zone”)
i. Executive power is middling.
ii. Validity depends on past practice, present exigencies, etc.
c. Congressional denial of authority, express or implied
i. Executive power is at its minimal.
ii. President’s action can only be valid if there is an independent constitutional source of his authority.
d. Seizure was in the third category, and the constitutional analysis of the majority basically controls.
iv. Miller and Steel Seizure similarities
1. Both permit judicial review that tests the legality of the relevant action.
2. Both engage in careful analysis of statutory authority and are skeptical of implied powers.
3. In both, the suit is formally against the individual officers responsible for the action, not against the government.
v. Miller and Steel Seizure differences
1. Miller involves an administrative/executive adjudication; Steel Seizure something akin to an administrative/executive rulemaking (though by the President and without legal authority).
2. The dispute in Miller ultimately concerns the allocation of power between the courts and an executive or administrative entity; Steel Seizure concerns the allocation of power between the legislature and the executive.
3. Miller involved a damages action against the officers and Steel Seizure involved equitable relief (declaratory and injunctive relief) against the officers. These are the two traditional routes for securing judicial review.
II. Some Basics of Administrative Law
A. Agency definition
i. Statutory, APA § 551(1)
1. “Agency'' means each authority [interpreted quite broadly] of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -
a. (A) the Congress;
b. (B) the courts of the United States;
i. Question: is this interpreted to mean Article III courts only, or Article I courts, too?
c. (C) the governments of the territories or possessions of the United States;
d. (D) the government of the District of Columbia;
2. Or except as to the requirements of section 552 of this title [FOIA] -
a. (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
b. (F) courts martial and military commissions;
c. (G) military authority exercised in the field in time of war or in occupied territory; or
d. (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;
ii. Constitutional, Lebron v. National Railroad Passenger Corp. (1995 / pg. 4)
1. “A corporation is an agency of the Government, for purposes of the constitutional obligations of Government when
a. [1] the state has specifically created that corporation
b. [2] for the furtherance of governmental objectives, and
c. [3] not merely holds some shares but controls the operation of the corporation through its appointees.”
i. A good test for control is whether the president has appointment power.
2. Congress can define what an agency is for statutory purposes to, e.g., include or exclude some authority from the requirements of the APA.
3. The Supreme Court retains authority to determine what counts as an agency under the Constitution.
iii. Examples
1. Amtrak, Corporation for Public Broadcasting, etc.
a. Not agencies under the APA, because their organic statutes say they are private.
b. But agencies for constitutional purposes, e.g. the First Amendment.
2. Office of the President of the United States
a. Not an agency under the APA, per the Supreme Court. Franklin v. Massachusetts (1992 / pg. 4) (avoiding constitutional problems that would be posed by statutory controls on the president’s actions).
b. Not an agency under the Constitution, either; it’s its own thing.
B. Some definitions
i. “Executive” agency
2. Usually has a single department head
ii. “Independent” agency
1. President can usually not fire at will, but only “for cause,” which does not include policy disagreements. The commissioners have a tenure set by statute.
2. Usually multi-member commissions; almost always an odd number.
3. Often have a political balance requirement, e.g. 3-2.
4. FEC is 3-3, though.
iii. Organic statute
1. The (usually short) statute that creates an agency.
2. Describes the agency’s authority, its leaders, who controls them, who appoints them, who fires them, etc.
iv. These are not controlling legal terms.
C. What do agencies do?
i. Rule-making
1. Most agencies have statutory power to make rules that more precisely define regulatory obligations.
a. Statute: “The Secretary shall set standards concerning toxic substances in the workplace to assure that no employee shall suffer a material impairment to health.”
b. Rule may say: “No more than 10ppm of benzene in the workplace.”
2. Attributes of rules
b. Future effect – the rule regulates future conduct
c. Usually general applicability, but APA allows for “particular applicability”
ii. Adjudication
1. Almost all agencies have statutory power to conduct adjudications.
a. Ex. The order in Miller v. Horton.
2. Attributes of an adjudicatory orders:
a. Promulgated with adjudicatory procedures
b. May have retroactive application – e.g., it may determine that a firm has previously violated the law.
c. Usually involve named parties to the proceeding and affects those parties immediately
d. Usually fact-intensive
I. High Theory of Administrative Law
A. Why High Theory Matters
i. Reigning theory determined how statutes were written.
1. Progressive-era statutes created the so-called independent agencies headed by multi-member, tenure-protected commissions.
2. They also gave extraordinary delegations, e.g. the National Industrial Recovery Act.
3. APA only passed after progressive era has ended (1946) and judicial review is somewhat more in vogue.
ii. Reigning theory determined how statutes were interpreted.
1. No delegations were held unconstitutional until the 1930s.
2. Modern formalism didn’t start invalidating statutes on separation of powers grounds until the 1980s, more or less.
B. Classical view / Madison and the framers (c. 1789)
i. Emphasized formal structure and checks on power; modern administrative state would be alien.
ii. Sought limited government, i.e. generally skeptical of governmental action.
iii. Sought stable government – legislative process is purposefully slow and difficult.
iv. Concern over “factions” – what today might be called “special interests.” Distribution of power and complexity of the system made it difficult for any one faction to gain control of government.
v. Realistic about human nature, but optimistic that a clever enough government could be designed to check it.
vi. Sought to design a government in which the he could rely on the personal ambitions of the members of each branch to check the personal ambitions of the others, and in doing so keep all three branches from trampling liberty.
C. Progressive and New Deal view (1890-1940)
i. Rejected formal separation of powers below the heads of the three branches:
ii. Exuberance for “independent,” nonpartisan government.
iii. Scientific, apolitical, wise technocrats armed with power.
iv. Separation of powers is unnecessary and detrimental because no firm in private industry would be organized along such “triadic contours.” Landis.
v. Wanted “the governance of industry” (Landis). Expansive vision government.
vi. Wanted efficiency of private industry & public spiritedness of government.
vii. Against judicial review.
viii. APA comes along in 1946, just as New Deal vision is being rejected. Thus the provisions for judicial review.
D. Modern Pessimists (1950-1980)
i. Agency “capture”: Agency comes to promote the interests of the agency it was supposed to regulate. Marver Bernstein.
ii. Political economy of agencies: Organized groups can more easily control agency behavior, and agencies will advance the interests of those groups. Roger Noll.
iii. Have agencies succeeded in combining the inefficiency of government with the private spiritedness of industry? Yes; great skepticism for agency performance.
iv. Pro-judicial review.
i. Shows renewed appreciation for formalism / separation of powers:
ii. No longer believes in apolitical agencies, but still believes in technocrats. E.g. Kagan, Presidential Administration.
iii. Note that even the formalism/functionalism debate assumes that separation of powers is a good thing. Contrast Landis who was overtly hostile to the whole concept.
iv. Embraces belief that agencies can be ordered to follow scientific and economic principles and still be under political control.
v. Largely rejects the Progressive era’s confidence in nonpolitical government, but largely accepts the idea that government can and should follow scientific and professional principles.
II. Article I, Delegations and Control by Congress
A. Non-Delegation Doctrine
i. Rules / Principles
1. “A certain degree of discretion, and thus of lawmaking, inheres in most executive and judicial action.” So some delegation is inevitable; the non-delegation doctrine merely polices (very, very slightly) the amount of discretion delegated. American Trucking.
2. Congress can only delegate power if it gives that delegated branch an intelligible principle governing how to use it. J.W. Hampton (source of the language).
a. Intelligibility can vary with the size of the delegation. American Trucking. Presumably, minor delegations need a minimally intelligible principle indeed.
b. Only if there is an absence of standards can something be held unconstitutional. Yakus.
3. Congress can delegate to the executive branch or judicial branch.
a. Most are to the executive branch, of course.
b. Wayman v. Southard involved a delegation to the courts.
4. Voluntarily adopted regulations that constrain an agency’s discretion cannot cure a non-delegation doctrine problem. American Trucking.
5. Delegations of tax power are subject to the same deferential intelligible principle standard as all other delegations. Skinner.
6. Delegations of power to criminalize are assumed to be tested against same intelligible principle test, but it is technically an open question. Touby.
7. Executive orders issued pursuant to constitutional presidential powers are not tested against the intelligible principle standard. Loving.
a. Because no congressional input is needed for the president to act in his fields.
b. Matters military (Loving); presumably matters of foreign policy, too.
8. When legislative power is lawfully delegated, it “morphs” into either executive or judicial power.
a. Rules commit the executive to a certain form of prosecutorial discretion ex ante
b. But see Mistretta – delegation to a purely legislative body upheld. Junior varsity congress.
9. Powers committed to a single house of Congress may not be delegated; they are textually committed to a single house. (Not that either house would actually delegate these powers.) There are only four:
a. House: initiate impeachment
c. Senate: approve/disapprove appointments
d. Senate: ratify treaties negotiated by president
10. Constraints that sound in, e.g., feasibility (rather than reasonableness) are tricky and can raise non-delegation doctrine concerns that militate in favor of strained statutory construction. Industrial Union (adding in “a significant risk” to cabin OSHA’s discretion).
a. Because “to the extent feasible” allows an enormous range of power; there’s no way to tie it down.
b. Also, as Rehnquist points out, it is in some sense only precatory.
i. If something is infeasible, it escapes regulation even if extremely dangerous.
ii. If something is only mildly dangerous, but is feasible, even if extremely expensive, it can be regulated.
11. Executive discretion not to enforce is widely assumed to be constitutional. Relying on this can functionally accomplish the same as an unconstrained delegation:
a. Statute 1: It’s illegal to do X. Executive has discretion not to enforce.
i. Constitutional. And the second clause is probably surplus; discretion not to enforce is there by default.
ii. Question: Can the Congress eliminate executive discretion not to enforce? Executive shall do X and may not decline to enforce? I think it must be; think mandatory arrest statutes. But at presidential level?
b. Statute 2: The executive shall have discretion to make X illegal.
i. Unconstitutional; there’s no intelligible principle.
c. Regulated industry would in fact treat these differently, though. Under Statute 1, even under a friendly executive, there will always be a worry that this executive will start enforcing, or the next one will.
12. Almost nothing is ever invalidated under the non-delegation doctrine.
a. No delegation to an agency has ever been held unconstitutional.
b. Delegations to the president have been held unconstitutional only twice.
i. Panana Refining (authorizing president to criminalize certain state-law crimes relating to the transportation of hot oil)
ii. A.L.A. Schechter (authorizing president to promulgate “codes of fair competition” more or less as he sees fit).
13. Non-delegation doctrine and avoidance
a. Non-delegation doctrine has a broader reach than is strictly required due to the avoidance principle of statutory interpretation. Mistretta footnote 7; Industrial Union.
b. This permits aggressive judicial review.
c. It validates concern about delegation to the courts and shows that if Congress wants to cede power, the courts won’t stop it.
d. It tends to assume that the agency will have power to decline regulation (hence the broad power and discretion).
e. A statute that requires draconian regulation does not present an NDD problem.
14. Non-delegation doctrine in context
a. The President is politically accountable, so delegations to the executive are not necessarily undemocratic
b. Because the executive has traditionally had discretion to decline to enforce the law, a stringent nondelegation doctrine would not eliminate executive discretion. Congress is simply hard-pressed to control the executive, because the executive can decline to enforce.
c. The more lax nondelegation doctrine allows Congress to be more honest about the extent of Executive discretion and to force the Executive to make rules confining its discretion.
ii. Non-delegation doctrine theories
1. Formalist / Pro-delegation: All delegations are constitutional because the delegation is itself the principle, and is of course intelligible: the legislature has concluded that the executive should handle this.
a. Descriptively, this works, except for Panama Refining and A.L.A. Schechter.
b. Of course, this would allow the Congress to abdicate.
2. Formalist / Anti-delegation: The concept of “legislative” vs. “executive” includes some notion that the basic policy choices will be made by the legislature. Action by the executive branch cannot really be considered “executive” if it is not pursuing a relatively specific statutory policy.
a. Requires courts to decide what’s legislative and what’s executive.
b. The vesting clauses provide the doctrinal hook.
c. It’s clearly contrary to caselaw.
3. Functionalist: The basic goal in separation of powers law is to prevent excessive power from accumulating in the hands of a single individual or institution. Only statutes violating that norm in practical effect should be unconstitutional.
a. This is usually couched in terms of policing “aggrandizement.”
b. The only real concern would be the office of the president.
c. Descriptively works for caselaw.
4. Under-enforced constitutional norm: Perhaps the non-delegation doctrine is an important part of the constitutional structure, but it cannot be enforced to any great degree by courts. But presumably political actors could grandstand about it.
5. Non-delegation doctrine principles may not be necessary if the Congress is merely giving the Executive power (or recognizing the Executive’s constitutionally-grounded power) to decline enforcement (i.e., prosecutorial discretion).
a. E.g. 19 U.S.C. § 337(j)(2): any ITC order shall have “no force or effect” if “the President, for policy reasons, disapproves such [order].”
6. Hostility to separation of powers generally. Landis.
7. Separation of powers applies only to the top levels of government.
iii. Hypotheticals
1. Q: Could Congress give to an administrative agency the power to “modify any requirement” made by a particular statute?
a. Yes. It’s called “super rulemaking” and has been settled since Brig Aurora and so-called conditional statutes.
b. The intelligible principle will be whatever the structure and purpose of the statute being enforced is, or the organic statute.
c. Need to interpret “modify” narrowly, however, or there may be constitutional problems.
2. Q: Could Congress give to an administrative agency the power to “modify any requirement” made by a particular statute but have that modification power terminate after 10 days?
a. Probably not. Covered, more or less, by Clinton v. New York, which involved a power only exercisable when a bill was signed into law.
b. The problem is that this isn’t very agency-like. Statutes are supposed to set the policy, and agencies are supposed to fill in the details and account for changed circumstances over time. The 10-day window does not match that justification at all.
c. But try to distinguish Clinton because it involved the president, maybe. Delegations to agencies have never been found unconstitutional.
iv. Cases
1. Cargo of the Brig Aurora v. U.S. (1813 / pg. 62) [fact-finding / conditional laws]
a. Held: Congress may require the executive branch to find facts, and have legal consequences flow from those facts, i.e. a conditional law.
b. The statute ‘revived’ an embargo of Great Britain if the president declared that France had ceased violating the neutral commerce of the U.S.
c. Court said that’s fine.
2. Wayman v. Southard (1825 / pg. 63) [delegation to the courts]
a. Held: Congress may delegate the power to the courts to determine the “forms of writs, executions, and other processes” of federal court judgments.
b. Court analogized to the Judiciary Act, a delegation of power to the courts to prepare court rules.
3. E. Marshall Field & Co. v. Clark (1892 / pg. 64) [fact-finding]
a. Similar to Brig Aurora, although the statute looks less like a “conditional law” and more like a simple delegation. Still treated as though the president is merely executing policy, however.
b. The statute called for duty-free importation, but specified that duties would be imposed if the president found that a trade partner country was imposing trade restrictions on U.S. exporters.
4. J.W. Hampton v. U.S. (1928 / pg. 65) [“intelligible principle”]
a. The modern statement of the non-delegation doctrine intelligible principle test.
b. The statute authorized the president to alter the amount of a duty on certain imported goods in order to “equalize the costs of production” between the U.S. and the exporting nation.
c. Duffy: certainly highly intelligible, if quite stupid.
5. Panama Refining v. Ryan (1935 / pg. 66) [NIRA / minor standardless delegation]
a. Held (Hughes, 8-1): National Industrial Recovery Act § 9(c) is an unconstitutional delegation of authority.
i. Sec. 9(c) authorized the president to make federal crimes out of certain state-law crimes relating to the interstate and foreign transportation of oil.
ii. There was no standard governing this power in § 9(c) or anywhere else in § 9.
iii. Sec. 1 contained a long list of very general and conflicting policies that apparently detailed the purposes of the statute. The court was not satisfied that these specifically constrained discretion in connection with § 9(c).
b. Cardozo, dissenting: The policies in § 1 are clear enough and should count as an intelligible principle for § 9(c).
c. Highly anachronistic for several reasons:
i. It’s a very minor delegation (make a federal crime out of something that’s already a state crime in one specific area); American Trucking teaches that minor delegations need only the barest of principles.
ii. Sec. 1 would probably be fine for modern purposes. They might use the canon of avoidance to reach this result: avoid the non-delegation doctrine question in § 9(c) but saying surely § 1 constrains executive authority.
iii. This statute isn’t too far off from simply criminalizing something and acknowledging executive discretion not to enforce, which is fine.
6. A.L.A. Schechter Poultry v. U.S. (1935 / pg. 69) [NIRA / delegation running riot]
a. Held (Hughes, 9-0): National Industrial Recovery Act § 3 is an unconstitutional delegation of authority.
i. Sec. 3 authorized the president to promulgate “codes of fair competition.” These could be proposed by industry, and the president could approve them, subject to two conditions. Alternatively, he could promulgate codes of his own design. Violation of the code was made a misdemeanor by the statute.
ii. There only standard governing this power in § 3 was that the codes should “tend to effectuate the policy of this title,” i.e. the laundry list in § 1 that was rejected as an intelligible principle in Panama Refining.
iii. “Unfair competition” was a concept known the common law, and thus a delegation using that term (to, e.g., the FTC) could be grounded in common law concepts to avoid a constitutional problem.
iv. But “fair competition” was a neologism with no pedigree; thus, there was no body of law to which the delegation could be tied in an effort to find some standards.
b. Cardozo, concurring: This is pretty bad.
c. Notes
i. Clearly correctly decided. An absurd, almost totalitarian delegation.
ii. A latent issue was whether codes proposed by industry violated the Appointments Clause, since they were not appointed. Probably not; industry only had phantom power under NIRA. President controlled all terms of the codes to be promulgated.
7. Mistretta v. U.S. (1989 / pg. 75) [Guidelines / j.v. Congress principle]
a. Held (Blackmun, 8-1): The Sentencing Guidelines promulgated by the Sentencing Commission further to a delegation of authority in the Sentencing Reform act are constitutional, because the Act contained an intelligible principle, viz.:
i. Three goals
3. Reflect modern criminology practice
ii. Four purposes
1. Reflect seriousness of offense, promote respect for the law and provide just punishments;
2. Deter crime;
iii. The tool to be used, i.e. the guidelines
iv. Seven factors for grading offenses, specific sentences for certain crimes, and aggravating and mitigating factors
b. Scalia, dissenting: Though there is an intelligible principle, this is nonetheless an unconstitutional delegation, because it delegates exclusively legislative powers, making it a “j.v. congress.”
i. Theory seems to be that lawfully delegated powers morph into the power of the branch that receives it. When the executive writes rules, it is merely constraining its enforcement wing to certain policies ex ante; but it’s still enforcement. And when the judiciary writes rules, it is merely constraining its exercise of judicial power ex ante; still judicial power.
ii. But a delegation of purely legislative power cannot be run through this magic; USSC can literally only write laws. That, he argues, violates separation of powers.
c. Notes
i. This is a very easy case. It seems likely that any of the underlined would have alone sufficed as an intelligible principle.
ii. Ironically, the problem Scalia identified could be cured by giving the USSC more powers, i.e. some enforcement wing. Because then the power – even the rulemaking power – would be “executive.”
8. Industrial Union (the Benzene case) (1980 / pg. 86) [ndd & statutes / czl avoidance]
a. Statutory and regulatory provisions:
i. OSHA should regulate workplaces as “reasonably necessary or appropriate to provide safe or healthful employment or places of employment.” § 3(8).
ii. For toxic substances, OSHA “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.” § 6(b)(5).
iii. OSHA interpreted § 6(b)(5) to require that it set an exposure limit at the lowest technologically feasible level that will not impair the viability of the regulated industries; in this case, benzene was set to 1ppm.
b. Plurality of 3: § 3(8) requires, preliminary to any regulation, that OSHA must determine that any standard is “reasonably necessary and appropriate to remedy a significant risk of material health impairment.” OSHA failed to do that; thus, benzene rule is invalid.
i. Because otherwise, read literally, §§ 3(8), 6(b)(5) would constitute a massive delegation of authority that is to be avoided.
ii. Essentially the power to control U.S. industry all the way up to the breaking point, without crossing it.
c. Rehnquist, concurring in the judgment:
i. The ambiguities in the statute are so great that Congress has effectively delegated its basic policymaking power to the agency.
ii. It’s also given the courts no way to test agency rules against the statute, so in that sense it also delegated policymaking power to the courts.
iii. The power to exempt industries from safety standards where a safe standard is “infeasible” is unconstitutional. The “to the extent feasible” language is purely precatory.
9. Skinner v. Mid-America Pipeline (1989 / pg. 107) [tax delegations]
a. Held: A delegation directing the Secretary to establish a “schedule of fees” for usage of pipelines, which fees must based on a “reasonable relationship to volume-miles, miles, revenues, or an appropriate combination,” is a constitutional delegation with an intelligible principle.
b. Held: Delegations of tax power are subject to the same deferential intelligible principle standard as all other delegations.
c. Note: This is a very typical delegation.
10. Touby v. U.S. (1991 / pg. 108) [criminal delegations]
a. Held: A statute permitting the AG to add a drug to a “schedule,” and thus to criminalize usage of that drug, is a constitutional delegation; intelligible principle:
i. necessary to avoid an imminent hazard to the public safety; and
ii. high potential for abuse; and
iii. no medical use; and
iv. lack of safe use under medical supervision.
b. The question of whether criminalizing delegations such as this are held to a more strict standard is still open; this would have passed, so it wasn’t decided.
11. Loving v. U.S. (1996 / pg. 109) [presidential/C-in-C delegations]
a. Held: A presidential executive order specifying criteria that courts martial must apply when imposing the death penalty does not violate the non-delegation doctrine, even though there’s no intelligible principle in a statutory delegation, because the president gets to deal with matters military without congressional guidance anyway.
b. It does not appear that the order was further to a statute; it was further to, probably, the commander-in-chief or vesting clauses.
12. Clinton v. New York (1998 / pg. 109) [line-item veto; not an ndd case]
a. Held (6-3): The Line-Item Veto Act is unconstitutional, because it allows the president to revise statutes without going through the requirements of Art. I, § 7 (bicameralism, presentment). Non-delegation doctrine was specifically not relied on.
b. Scalia, Breyer, O’Connor, dissenting: This is a constitutional delegation and should be considered as a presentment issue at all.
c. Notes
i. In the Line Item Veto Act case, the Congress was itself being specific (e.g., “spend $10,000,000 on [this particular pork barrel project] in Y State”), and the LIVA statute gave the President the power to declare that provision as having no force or effect as law. The power could be exercised only at the time when the President signed the bill.
ii. Just an odd case. The law invalidated did not fit the traditional mold of delegated power and could not be justified on the basis of administrative expertise, or ability to monitor changed conditions, or the ability to fill in the details.
13. American Trucking Ass’n (2001 / pg. 110) [standard modern delegation]
a. Held (9-0): A delegation to the EPA to regulate air quality standards “requisite to protect the public health” is constitutional; that’s an intelligible principle.
b. Held: Even if there were a delegation problem, as the D.C. Circuit had found, it could not be cured with a remand to the agency with instructions to write rules that would self-cabin the agency. Voluntarily adopted regulations cannot cure the non-delegation doctrine problem.
14. Reynolds v. U.S. (2012 / pg. 113) [retroactivity delegation]
a. Held (7-2): A federal sex offender registration statute that delegated the authority to the AG to “to specify the applicability of the [registration] requirements” to pre-Act offenders does not apply to pre-Act offenders of its own force.
b. Held (7-2): The interim rule promulgated by the AG extending the statute to pre-Act offenders is invalid for procedural reasons.
c. Scalia and Ginsburg, dissenting: This statute should be read to apply to pre-Act offenders of its own force.
i. Majority statutory holding and disposition leaves the AG with the power to decide with no intelligible principle whether federal criminal law will apply to certain individuals (pre-enactment sex offender convicts
ii. Dissent interpretation avoids the non-delegation doctrine question that the majority’s interpretation will create by simply saying the statute already does this.
iii. Cf. Panama Refining (statute delegating power to criminalize things without an intelligible principle is unconstitutional).
d. Notes
i. The AG promulgated rules extending the statute to pre-Act offenders without going through notice and comment, under the good cause exemption.
ii. This gave rise to a circuit split whether this was really good cause. See U.S. v. Dean .
B. Legislative Veto
i. Rules / Principles
a. In particular, the legislative veto is an unconstitutional self-delegation.
b. This is the anti-aggrandizement principle.
c. Except the subpoena power, which is justified on the grounds that there is a grand historical tradition. This comes with contempt and prosecution powers for failure to comply.
2. Each branch, when acting, is presumed to be acting in its constitutional capacity. Chadha.
3. Something is legislative if it has the “purpose and effect of altering the legal rights, duties and relations” of non-legislative branch actors. Chadha.
4. A two-house veto that complies with presentment is permissible, because it’s just a normal law: it complies with bicameralism and presentment. Modern version of legislative veto:
a. All agencies must submit “major rules” to the Congress; the regulations cannot take effect for approximately 60 days; the statute authorizes Congress to pass a “joint resolution” disapproving of the regulations; if such a resolution is passed, then the statute provides that the rules will not take effect. See pp. 124-25.
b. This is ordinary legislation. Art. I, § 7, cl. 3 (joint resolutions must comply with presentment).
c. This statute just creates a streamlined legislative process to get it done quickly.
d. Used only once; see State Farm .
5. Members of the legislature cannot serve as executive officers. Art. I, § 6, cl. 2.
a. Another textual provision requiring separation of powers. This is evidence beyond the vesting clauses that the Framers cared about which branch exercised which powers
b. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
6. Consequences and Implications of Chadha
a. This corner of constitutional administrative law is highly formal, in stark contrast to the non-delegation doctrine.
b. Delegations are trickier for Congress. Broad delegations and vague intelligible principles are common, and the legislative veto was an attempt for Congress to maintain some control on policy.
c. Now, Congress has to think more carefully about whether and how to grant authority, since its formal legal power to control policy requires bicameralism + presentment, which is enormously difficult.
d. Congress still delegates broadly. The one area they have pulled back is in the executive power to reorganize the cabinet; Congress abolished that power following Chadha.
i. But they did ratify a bunch of reorganizations done by executive order.
ii. This gave those orders the force of statutory law.
iii. Congress did this because its internal committees are tied to specific agencies (by statute?), and it doesn’t want the executive to evade unfavorable committees by simply moving the agency around.
ii. INS v. Chadha (1983 / pg. 115) [legislative vetoes / pure formalism]
1. Held (Burger, 7-2): The legislative veto is unconstitutional, as it violates bicameralism and presentment. The House had overridden the AG’s order, made pursuant to a statute, suspending Chadha’s immigration, and ordered that he be deported.
a. Congress is presumed to be acting in its legislative capacity, as are all branches.
b. And the one-house veto was a legislative act, i.e. a law, as it altered the rights and duties of particular people. Also, it’s conceded that Congress and the President could pass a law achieving this same effect, which is more evidence that it’s legislative.
c. The Constitution by its terms allows each House to do a few things by itself; this is evidence that those are the exclusive powers each House has to act alone.
d. But, not passed according to bicameralism / presentment unconstitutional.
2. White, dissenting [pure functionalist]
a. The legislative veto is a useful tool for the Congress to maintain control of policy, which is what the Constitution calls for Congress to do, after all.
b. If Congress can lawfully delegate, why can Congress not retain some of its authority to set policy?
c. It blinkers reality to believe that agencies are only “executing” the law. Rules have the force of law; allowing Congress to remain involved in the terms of this laws is wise.
3. Rehnquist, dissenting [omitted from book]
4. Notes
a. AG’s order suspending the deportation of Chadha was not legislative, because the AG is in the executive branch, and his actions are presumed to be executive.
b. And executive orders like this are testable against the statutory delegation and thus subject to meaningful judicial review.
c. Also, the statutory power to decline enforcement looked a lot like the usual constitutional power of the executive to decline enforcement.
d. The majority opinion talks at length about how mere convenience of a procedure cannot make it lawful.
C. Other Legislative Controls of Agencies
i. The appropriations power gives Congress great functional and legal power to control agencies, even if the legislative veto does not.
1. Congress can and does attach conditions to appropriations, i.e. this money can only be used for this purpose.
2. Watch out for Congress attaching conditions to appropriations that forbid the delegated branch from using money for certain purposes.
3. Both of these must be tested against constitutional guarantees, i.e. Congress cannot constitutionally use the appropriations power to trammel on constitutional rights.
ii. Agencies are forbidden by criminal statutes from obligating the US to make payments that exceed the agency’s appropriations. When money runs out, the must shut the lights off.
iii. The subpoena power allows Congress to maintain some effective control of agencies. Drag them in, berate them, threaten to take their money away, etc.
iv. An agency’s organic statute and the statutes committed to it for enforcement thus do not describe the totality of the agency’s power. A broad delegation and a tiny budget means, as a practical matter, very little power.
v. Agencies pay a lot of attention to the legislative history, especially the reports of the committee which oversees them.
1. These reports show what Congress actually cares about.
2. Even if the judiciary decides to ignore legislative history, the agency has bigger concerns: failure to pay attention to what the committee cares about can be embarrassing and may result in budget problems or later confirmation problems.
III. Article II
1. Appointments Clause
a. The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
i. Art. II, § 2, cl. 2 (Appointments Clause).
ii. “By law” means “by statute.”
2. Purposes of the Appointments Clause
a. Maintain control of those who will be exercising real government authority; it only covers high-level officers who exercise real U.S. power.
b. Protects the people by limiting diffusion of power; forces Congress and president to make the hard decisions.
3. There are four and only four ways to appoint officers; a strict formalist approach.
a. President with advice and consent of Senate
i. This is the default method of appointing all officers.
ii. This is the exclusive method of appointing principal officers.
b. President acting alone
i. This method is only permissible if authorized by statute.
ii. This method is only permissible for inferior officers.
c. Courts of Law acting alone
i. This method is only permissible if authorized by statute.
ii. This method is only permissible for inferior officers.
d. Heads of Department acting alone
i. This method is only permissible if authorized by statute.
ii. This method is only permissible for inferior officers.
e. Buckley v. Valeo.
i. A statute authorizing (b), (c), or (d) deactivates (a).
ii. Congress controls this fairly jealously, e.g. uses method (a) for four levels of the DOJ and military officers of all ranks.
iii. Congress cannot be the repository of authority to appoint inferior officers.
iv. The Appointments Clause is a limit on Congress’s Necessary and Proper Clause powers.
v. Congress is free to go nuts with bizarre appointment structures, but those people can only be employees.
4. Defining an “officer”
a. An officer is an appointee who exercises “significant authority pursuant to the law of the United States” (Buckley) and “perform[s] more than ministerial tasks” (Freytag).
i. “Significant authority” includes rulemaking, adjudication/enforcement.
ii. Investigation powers are not “significant.”
iii. Buckley v. Valeo.
b. Some data points
i. Under Freytag, special trial judges of the Tax Court are inferior officers with the following relevant powers:
1. Take testimony
2. Run trials
3. Rule on admissibility of evidence
4. Enforce compliance with discovery orders.
5. Make final decisions, even in a limited set of cases
ii. Administrative Law Judges (ALJs) are employees.
1. Even though they have powers (1)-(4) as special trial judges.
2. Cannot issue final decisions; only recommend them to the Board.
3. The Board grants their factual findings no deference.
4. Landry v. FDIC (D.C. Circuit, 2 votes; good law in D.C.).
iii. Administrative Law Judges (ALJs) are inferior officers.
1. Functional equivalents of the special trial judges in Freytag.
2. The final decision factor was unnecessary to Freytag.
3. The deference factor in Freytag was also unnecessary, especially since the Tax Court was free to adopt any standard of review.
4. Landry v. FDIC dissent (D.C. Circuit, 1 vote; not good law).
5. Scalia’s dissent in Freytag states that they are officers. And the majority opinion in Free Enterprise has a footnote that suggests that they may be officers, too.
iv. IRS appeal team managers are employees.
1. Tax is an important subject; and
2. They can issue final decisions; but
3. They have very little discretion. Detailed manuals and policies control many of their decisions, and they are required to ask for help with novel or complicated problems.
4. Tucker v. IRS (D.C. Circuit). This one is pretty controversial.
v. AUSAs are inferior officers.
1. They have meaningful discretionary power.
2. They can bind the U.S. in an Article III court proceeding.
3. Heavy degree of supervision does not make them employees.
vi. Head of Smithsonian is an employee.
1. He’s appointed by a bizarre panel of senators, Supreme Court Justices, and rich private citizens.
2. He doesn’t exercise sovereign governmental powers. He has private power: contracts, hiring, firing, etc.
c. 2007 OLC Memo
i. An officer is anyone who is “invested by legal authority with a portion of the sovereign power” and is in a “continuing office.”
ii. “Sovereign power” means the power to bind third parties or the government itself; or to administer, execute, or interpret the law.
1. Not all that much more precise than “significant authority.”
iii. “Continuing office” is meant to carve out diplomatic envoys, qui tam plaintiffs; does not carve out those with fixed terms of office. That’s still “continuing.”
5. Principal vs. inferior officers
a. There is no clean division between inferior officers and principal officers; it’s a matter of degree.
b. Morrison (1988) was the first really useful case, but Edmond (1997) and Free Enterprise Fund (2010) apply a different test without expressly overruling it.
c. Morrison test (unclear if good law anywhere)
i. Subordination.
2. Power to remove is an especially important component.
3. But, Morrison itself found an inferior officer when there was only for-cause removal by the AG, and president had no removal authority.
ii. Nature of duties.
2. Policy-creating roles suggest principal officer.
iii. Scope of jurisdiction
2. Bigger bailiwick suggest principal officer.
iv. Limited tenure
1. Termination upon completion of a single task suggests inferior officer.
2. Open-ended tenure suggests principal officer.
d. Edmond / Free Enterprise test
i. Subordination is the only relevant element.
1. Subordinate only to the president suggests principal officer.
2. Subordinate to a principal officer or an inferior officer suggests inferior officer.
ii. Subordination is measured same as in Morrison, viz.:
1. Degree of oversight/control by someone else
2. Power to remove is an especially important component.
3. Control does not have to be complete, just significant. The JAG in Edmond could not interfere in cases or personally overrule, but he could refer any case to a higher military court and did have an administrative supervisory role.
e. The D.C. Circuit has followed the Edmond / Free Enterprise approach. See Intercollegiate Broadcasting System.
6. “Courts of Law” and “Head of Department”
a. Courts of Law most very probably refers to Article III courts.
i. But see Freytag (an Article I court counted as a Court of Law). Almost certainly bad law.
ii. Freytag drew a four-Justice dissent that argued Article I courts might be Departments, but were certainly not Courts of Law.
b. A “Department” is a “freestanding component of the executive branch … not contained within any other such component.” Free Enterprise Fund.
i. Look for some detached unit of government whose head reports to the president.
ii. The SEC is a Department by this definition. EPA, too.
c. The Head of a Department may be a multimember body for Appointments Clause purposes. Free Enterprise Fund.
i. In such a body, Congress could probably have either the body as a whole or the Chair of that body lawfully appoint inferior officers.
ii. But probably couldn’t allow both to do it in one agency.
7. Interbranch appointments
a. Members of one branch can appoint officers in another branch; there may be a constitutional problem if there is an “incongruity.” Morrison v. Olson
i. Morrison upheld an interbranch appointment scheme in which there was no incongruity, but reserved the constitutional question.
ii. So, a court appointing a prosecutor is constitutional.
b. The idea seems to be that there should be some reasonable relationship between the duties of the appointing party and the duties of the inferior officer.
c. This issue can only come up with inferior officers, because principal officers are appointed by the President with advice and consent of the Senate; there’s no “incongruity” problem there.
8. Expansion of an officer’s role
a. A duly appointed officer’s duties may be expanded without creating an Appointments Clause problem if the new duties are “germane” to the old. Shoemaker.
b. If a statute purports to expand a duly appointed officer’s duties, but in reality the officer already had those duties, germaneness might be the test. Weiss (reserving the question).
c. Germaneness is not that strict. Congress often has a whole raft of officers from which to choose.
d. The primary concern in this area is that Congress could subvert the Appointments Clause and control the executive branch, either by adding a bunch of authority to a favored officer, or by shift authority away from a disfavored officer to a favored officer
9. Recess Appointments Clause
a. Constitutional provisions
i. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
1. Art II, § 2, cl. 3 (Recess Appointments Clause).
2. Modern practice has allowed for serious abuse of this power, including, up until last year, with the tacit acquiescence of Congress. Noel Canning has called this into question.
ii. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.
1. Art. I, § 5, cl. 4 (Adjournments Clause).
2. This allows for an argument that adjournments of longer than three days is a recess. Discredited in Noel Canning; not reached by Supreme Court.
iii. The President “may, on extraordinary Occasions, convene both Houses, or either of them.”
1. Art. II, § 3.
b. Noel Canning rules (D.C. Circuit only)
i. Recess appointments can only be made during the (single) intercession recess of the Senate. Adjournments do not count.
ii. Recess appointments can only be made for vacancies that actually occur during that same recess. (dicta / alternative holding).
iii. There’s a circuit split on both these points, but the D.C. Circuit’s view is of much greater importance than the 11th, 2nd, or 9th Circuits’.
iv. If the Senate does not go into a recess, one session ends and another immediately commences on January 3rd.
c. The Recess Appointments Clause is a compromise between two values:
i. During emergencies (or, in the early days, when recesses were way longer), the president needs power to appoint officers; but
ii. Giving the president unilateral authority to fill his cabinet would allow for an end-run around the Appointments Clause.
iii. The Noel Canning court’s idea was that the executive cannot be in charge of defining the scope of his Recess Appointments Clause power; that would violate separation of powers. An executive power grab. Cf. Chadha (concerned about legislative power grab).
ii. Hypotheticals
1. A statute provides that the Federal Communications Commission shall consist of 5 Commissioners who shall be nominated, and by and with the Advice and Consent of the Senate, appointed by the President. No more than three Commissioners shall be affiliated with the same political party. Can Congress impose qualifications for the appointment of principal officers?
a. Case against (formalist): Congress cannot impose controls like this on the appointment power, because it is vested in the executive branch. Also, the Constitution calls for involvement of part of the legislature: the Senate gets to give advice and consent. The presence of this congressional involvement suggests that that should be the only congressional involvement.
b. Case for (functionalist): Necessary and Proper Clause gives power to Congress to limit appointments in order to effectuate the laws it passes. If Congress can pass a communications statute, it can determine that bipartisan governance is necessary and proper to making sure it actually happens.
2. Would the Congress have greater power to impose restrictions on the appointment of “inferior” officers?
a. Case against (formalist): No; while Congress can choose from the executive or judicial branches when designing the appointment structure for inferior officers, that power is still vested in those branches and cannot be tampered with by statute.
b. Case for (functionalist): Yes. The Constitution recognizes the Congress’s role in appointments of inferior officers by allowing them to specify by statute how it will work. So, conditions can be attached more readily in the inferior officer context pursuant to the Necessary and Proper Clause.
3. Notes
a. The formalist case is entirely practicable here without, e.g., dismantling the administrative state. Always helpful for a formalist argument.
b. In reality, there is little fighting about these restrictions; both sides respect them.
c. A constitutional challenge may be difficult here because the president and Congress could always choose to comply with the unconstitutional political restrictions. Challenger would be arguing that a statute is unconstitutional, while the defender would be arguing fine, but even if it is, we voluntarily and lawfully selected officers whose political persuasions match the statute.
4. A new statute authorizes the creation of 12 “Cabinet Officers.” Each officer is to be nominated, and by and with the Advice and Consent of the Senate, appointed by the President. The President may then assign the Officer to manage any of the Cabinet Departments of Government (State, Justice, Interior, Commerce, Transportation, etc.). Constitutional?
a. Case for: It’s constitutional, because Congress knew which set of officers it was confirming for which set of jobs; so, because it knew that each of them could end up in any role, it’s constitutional.
b. Case against: there may be a germaneness problem. They were lawfully appointed as “Cabinet Officers,” and the statute then permits the executive to place them in in a non-germane real cabinet office. Because really, nothing is germane to being a generic cabinet officer.
c. This won’t come up. Germaneness has only been litigated twice, and both times it was germane, and one time the Court didn’t even bother to confirm that the appropriate test was germaneness.
iii. Cases
1. Buckley v. Valeo (1976 / pg. 144) [fount of formalist ACL doctrine]
a. Held: The enforcement provisions of the FEC’s organic statute violate the Appointments Clause, as they vest “significant authority pursuant to the law of the United States” that may only be exercised by an officer in a body that was not appointed in conformity with the Appointments Clause.
b. Statutory structure of FEC
i. 8 members – 6 voting members + 2 non-voting ex officio members (Secretary of the Senate and Clerk of the House).
ii. Speaker of the House, President pro tempore of the Senate, and the President each nominate two candidates.
iii. Each group of two may not have two from the same party.
iv. Confirmation by votes of both House and Senate.
c. Rejected arguments:
i. Congressional power over elections is special, so the Appointments Clause shouldn’t bar this.
ii. It’s convenient and important to have this structure for political reasons.
iii. The Necessary and Proper Clause allows this unusual structure.
d. Implications
i. An officer is anyone who exercises “significant authority pursuant to the law of the United States”
ii. Congress cannot be the repository of authority to appoint inferior officers.
iii. Investigation powers do not alone trigger Appointments Clause; non-officers can exercise them.
iv. Formalism will be the approach in Appointments Clause doctrine.
v. The Appointments Clause is a limit on Congress’s Necessary and Proper Clause powers.
vi. Congress is free to go nuts with bizarre appointment structures, but those people can only be employees.
2. Freytag v. Commissioner (1991 / pg. 151) [Tax Court / special trial judges]
a. Held: Special trial judges of the Tax Court are officers, as they “perform more than ministerial tasks.” Their powers include:
i. Making final decisions, in a limited set of cases;
ii. Taking testimony;
iii. Running trials;
3. Landry v. FDIC (D.C. Cir. 2000 / pg. 152) [ALJs]
a. Held (2-1, Willams): ALJs are employees, not inferior officers, because although they can run trials &c., they can never issue final decisions and their findings, if any, are not granted any deference by the body that will ultimately issue an order.
b. Randolph, dissenting: Freytag is indistinguishable.
4. Tucker v. Commissioner (D.C. Cir. 2012 / pg. 157) [IRS appeals team managers]
a. Held: IRS appeal team managers are employees, not inferior officers, because although tax is a significant subject matter, and although they can issue final decisions, their discretion is highly constrained.
5. Morrison v. Olson (1988 / pg. 159) [principal vs. inferior officer]
a. Held (8-1, Rehnquist): The independent counsel is an inferior officer, because:
i. Subordination. The I.C. is subject to removal by a higher executive officer (AG), and subject to the policies of DOJ.
ii. Limited duties: investigation and prosecution of certain federal crimes. No policy-making role.
iii. Limited jurisdiction – by statute, limited to investigation and prosecution of certain kinds of officials for certain kinds of crime; and, in a specific case, limited to the jurisdiction actually granted by the Special Division.
iv. Limited tenure – office ends with completion of a single task, even if this task lasts a long time.
b. Held (8-1, Rehnquist): The method of appointment (an executive officer in DOJ appointed by the Special Division court) is constitutional, as it’s not “incongruous.”
i. Court does not hold that incongruity is the test (it was dicta in a former case), but notes it in passing.
ii. Court merely holds that this arrangement is permissible.
c. Scalia, dissenting:
i. The independent counsel is not actually subordinate in a meaningful sense: removal only for cause, and only by the AG, not the president. This means that it is much more insulated from control than principal officers, most (if not all) of whom are removable at will.
ii. The other factors may or may not be correctly applied by the majority, but they are certainly inapposite. Subordination should be the only factor in distinguishing between inferior officers and principal officers.
iii. [Not in book, but it follows from this that the I.C. is a principal officer, and thus the method of appointment by the Special Division court is unconstitutional.)
6. Edmond v. U.S. (1997 / pg. 164) [principal vs. inferior officer]
a. Held (Scalia, 8-1): The judges of the Coast Guard Court of Criminal Appeals are inferior officers, because they are subordinate to the Judge Advocate General (who is in turn subordinate to the Secretary of Transpiration). Factors considered:
i. JAG has “administrative oversight” of this court;
ii. JAG can remove these judges without cause;
iii. JAG, while he cannot influence the outcome of cases or reverse, can order a higher military court to review decisions.
b. Souter, concurring in part and in judgment:
i. We should not adopt subordination as the exclusive test just yet, even if these judges are inferior officers.
ii. Duties, jurisdiction, and tenure (the Morrison factors) are also relevant.
7. Free Enterprise Fund v. PCAOB (2010 / pg. 168) [principal vs. inferior officer]
a. Held (9-0, Roberts): The PCAOB members are inferior officers, as long as they are removable at will by the SEC, and the PCAOB’s method of appointment (selected by the SEC) is thus constitutional.
i. SEC, constitutionally, has authority to remove board members;
ii. SEC has other oversight authority.
b. Notes
i. The point being that the Edmond view, which was a 1-vote dissent in Morrison, seems to have won.
ii. The Appointments Clause was not the battleground in this.
8. Intercollegiate Broadcasting (D.C. Cir. 2012 / pg. 169) [principal vs. inferior officer]
a. Held: Copyright Royalty Board members (appointed by the Librarian of Congress) are inferior officers, if they are removable at will, and their appointment is this constitutional.
i. Following PCAOB, they must be removable at will.
ii. If they were not removable at will, they would be principal officers.
b. Notes
i. The point being that the D.C. Circuit understands that Edmond and PCAOB state the relevant test for principal or inferior officer.
9. Freytag reprise (1991 / pg. 169) [Courts of Law & Heads of Dept.]
a. Held (Blackmun, 5-4): The Tax Court, an Article I court whose Chief Judge appoints special trial judges, is a “Court of Law” for Appointments Clause purposes.
i. Because, functionally, they are courts: the members are called “judges” and they do very judicial-looking things.
ii. There is no reason to assume that the Appointments Clause only refers to Article III judges; it just says “courts,” and Congress can create new ones, after all.
b. Scalia + 3, dissenting:
i. The Tax Court cannot be a “Court of Law,” because the Appointments Clause is referring to Article III courts. The Tax Court is in the executive branch and exercises executive power.
ii. But, the Tax Court is a Department, because it’s “freestanding” and “self-contained,” and the Chief Judge is removable only by the President or by impeachment.
iii. So the Chief Judge is a Head of Department for Appointments Clause purposes.
c. Notes
i. The majority opinion is almost certainly bad law today.
ii. The return to formalism in this area ensures that a future court will not treat Article I courts as Appointments Clause Courts of Law.
10. Free Enterprise Fund reprise (2010 / pg. 172) [Courts of Law & Heads of Dept.]
a. Held: The SEC is a department for Appointments Clause purposes, because:
i. It’s a “freestanding component of the executive branch” that is “not contained within any other such component.”
b. Held: A multimember body such as the SEC can be the head of a department for Appointments Clause purposes.
i. Collective appointments are allowed under the Appointments Clause in the phrase “Courts of Law”; why not a multimember head, then?
11. Shoemaker (1893 / pg. 175) [germaneness / dynamic]
a. Held: A five-member commission that is composed of three duly appointed principal officers and two commissioned military officers whose appointment predated the statute at issue is constitutionally composed; the two old members do not need new appointments.
i. Because the new duties the statute created are “germane” to the duties the existing officers already had.
12. Weiss v. U.S. (1994 / pg. 175 [germaneness / static]
a. Held: Military trial judges, who are existing commissioned officers who are selected for this duty by the JAG of their branch of the armed forces, do not need to be reappointed in order to lawfully serve as such judges. Because either:
i. The new duties are germane to the old (military officer, military justice, a form of discipline); or
ii. Because military justice duties had always been among the duties of military officers.
b. Scalia and Thomas wanted to hold that germaneness analysis applied in full here, but the majority reserved the question.
13. Noel Canning v. NLRB (D.C. Cir. 2013 / Supp) [recess Appointments Clause]
a. Held (3-0): The NLRB lacked a quorum (three of five members), because three putative appointments made pursuant to the Recess Appointments Clause were invalid, and the NLRB’s order thus must be vacated. Alternative rules of law support this conclusion:
i. “The Recess.” Three of the appointments did not happen during the intercession recess, which is understood as a singular break between sessions. The Senate never went into its recess, and thus these appointments did not occur during it, and they are thus invalid.
1. Because text, history, and early practice all say so.
2. And because separation of powers cannot be sacrificed on the altar of convenience. Chadha.
ii. “Happen.” The three vacancies all occurred when the Senate was not in its intersession recess; rather, they occurred when the Senate was in session, on August 27, 2010; August 27, 2011; and January 3, 2013.
1. The 2013 one counts because the Senate simply never went into a recess; the old term expired and the new one began at the same time.
2. There was no ineffable moment of recess between the two sessions when this vacancy happened.
3. Same reasoning as above.
b. Griffith, concurring: Holding (i) was enough; we shouldn’t reach the second constitutional question, for which the arguments are a bit closer.
B. Removal Power
i. Rules/Principles
1. Overview
a. This area is much more functionalist than Appointments Clause doctrine, because there are no constitutional rules to really rely on.
i. But note that Free Enterprise Fund is the latest case, and is a stab at returning to formalism in the area.
b. Removal caselaw follows a peculiar pattern:
i. Cases state sweeping holdings and have broad dicta.
ii. Holdings are preserved very narrowly; broad dicta is discarded.
2. Congress can remove the president, vice president, and all civil officers through impeachment. From the text, it seems that the president and vice president aren’t technically officers; they’re unique.
a. If impeachment leads to a conviction for treason, bribery, or high crimes and misdemeanors, the officer will be removed.
b. This is the only provision covering removal of non-congressional government officials.
3. Constitutional bases for removal power
a. Executive: Vesting Clause in Article II + Take Care Clause
b. Congressional: Necessary and Proper Clause
4. Four possibilities
i. Always rejected.
i. Rejected by Myers.
c. Presidential removal at his discretion because removal is “executive.”
i. Accepted in part.
ii. Fullest expression in Myers.
iii. Tacit acceptance in Webster v. Doe (delegation plenary removal power w/o any standards doesn’t offend non-delegation doctrine)
d. Removal by statutory procedure (with the possibility that the removal power is restricted by statutory “for cause” restrictions).
i. Accepted in part.
ii. Fullest expression in Humphrey’s Executor.
5. Std. for testing removal: whether “the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty.”
a. Is the need to control the officer “central to the functioning of the Executive Branch”?
b. Can President ensure the “faithful execution” of the laws?
c. Purely functionalist.
a. Function the officer performs.
b. Extent to which executive branch maintains control over the officer, i.e. how strict the tenure protections are.
i. Incomplete control is still control. Morrison.
ii. But control over “functions” w/o control over removal violates the vesting cause in a dual tenure protection setup. Free Enterprise Fund.
c. Extent to which Congress is attempting to insert itself into removal decisions. (This is forbidden.)
7. “Good cause,” whatever it includes, does not include mere policy disagreements.
a. Free Enterprise (not squarely holding this, but noting that no precedents allow it, and refusing to so hold in order to save the statute.)
b. Humphrey’s Executor (standard was not quite “good cause,” though).
c. Scalia believes it would include “failure to accept supervision,” which would make it a weak form of protection.
8. Inferior officers who are not appointed by the president may be given tenure protections such as for-cause removal.
a. Perkins (military officer appointed by the Secretary of the Navy; standard was “misconduct”).
b. Morrison (independent counsel appointed by the Special Division court; standard was “good cause”).
c. It seems to be open whether inferior officers who are appointed by the president may be given tenure protection.
9. Principal officers who serve in independent, multimember agencies may be given tenure protection.
a. Humphrey’s Executor (Commissioner of FTC; standard was “inefficiency, neglect of duty, or malfeasance in office”).
b. It seems to be open whether principal officers who are not part of multimember boards can be given tenure protection.
10. Congress cannot give itself a role in making removal decisions beyond its impeachment power. This rule looks to be pretty firmly established.
a. Myers (first class postmaster appointed by president with advice and consent of the Senate; removal by this same manner was found unconstitutional).
b. Bowsher v. Synar (statute allowing for removal of an officer by a presented, joint resolution of Congress is unconstitutional).
c. This rule invalidates the Tenure of Office Act, if anyone still thought it was ok.
d. Cf. Chadha (similar anti-aggrandizement decision).
11. Dual tenure protection is forbidden, at least where the body in question is an inferior multimember board and it is insulated from a second, principal multimember board that is insulated from the president.
a. Free Enterprise Fund (PCAOB has tenure protection from the SEC, which has tenure protection from the president).
b. It seems to be open whether this dual tenure protection setup would violate the Constitution with respect to agency that has a single head.
i. This would be a stupid distinction, but this area of the law is not immune to cabining holdings to their narrowest possible phrasings.
12. Tension in modern doctrine
a. Humphrey’s Executor was premised on idea that these multimember boards aren’t really “executive.” That’s surely bad law now, but these boards still lawfully have tenure protection under Free Enterprise.
b. Free Enterprise is premised on idea that president must have control over even inferior officers. But, “good cause” has never been interpreted, including in Free Enterprise, to include mere policy disagreement as cause.
c. Thus, in what sense are inferior officers subject to full executive control?
13. The lower courts have some tests for whether a multimember body has tenure protection by implication.
a. If the statute dates to the progressive era and is silent on tenure protection, it might be treated as having tenure protection. (FCC and SEC are two examples).
b. The Free Enterprise majority suggests that there might be 5 votes for the idea that the SEC has tenure protection, even though the statute is silent.
i. This would be an odd holding, as it’s the conservative wing.
ii. But it makes Free Enterprise itself an odd holding, then, because the majority could have ignored the PCAOB problem by holding that the SEC didn’t have tenure protection.
14. Watch for severability.
a. Remedy in these cases can either be to void the tenure protection (Bowsher; Free Enterprise) or to void the portion of the statute delegating certain powers to the officer (I don’t think we have an example for this).
b. The test for severability is whether Congress would prefer a statute with no tenure protection, or no statute at all.
ii. Cases and Statutes
1. Decision of 1789 [pro-presidential power to remove; very influential]
a. Endorsed, after lengthy and thorough debate, the proposition that the president has inherent removal power; it’s part of the “executive power.”
2. Tenure of Office Act of 1867 [anti-presidential power to remove; largely ignored]
a. Forbid the president from firing any officer appointed by president with advice and consent of the Senate until successor was appointed in the same manner.
b. Forbid the president from firing “certain heads of departments” at all during the appointing president’s term plus one month; after that tenure, these heads could be removed only with consent of Senate.
c. Passed by a Reconstruction Congress that worried that Johnson would be insufficiently pro-Reconstruction.
d. This is clearly unconstitutional under Myers if not before.
3. U.S. v. Perkins (1886 / pg. 203 & slide) [inferior officers / tenure protection]
a. Held: Inferior officers who are not appointed by the president may be given tenure protection, i.e. for-cause removal.
i. Officer in question was a military officer (Navy).
ii. Appointed by the Secretary of the Navy and subject to peacetime removal only by court martial or for “misconduct” as found by the Sec.
b. Notes
i. Because holdings are preserved very narrowly in this area, it’s not clear that this applies to inferior officers who go through an appointment with advice and consent of Senate.
ii. Similarly, although the reasoning would apply to all inferior officers, it is plausible to distinguish this one on the basis that it’s military. Not a great argument, however, since the president usually has more power over matters military; so if this tenure protection works for military officers, a fortiori, it works for civil officers.
4. Myers v. U.S. (1926 / pg. 180) [Congress cannot be involved in removal decisions]
a. Held: A statute that allows for removal of an inferior officer only by the president with advice and consent of the senate is unconstitutional.
i. Officer in question was a first class postmaster, an inferior officer, but a popular patronage position. So appointment was only by president with advice and consent of the Senate.
ii. Contained broad dicta endorsing Decision of 1789 and arguing that the pres. needs unfettered removal power to fulfill the take care function.
b. Notes
i. This holding is important, because it forbids the Congress from taking an active role in removing officers.
ii. It’s similar to Chadha in that it has an anti-aggrandizing function: Congress tried to arrogate some of the power to remove officers; the Court rejected this attempt.
iii. Its holding was read narrowly and its dicta was cabined a mere nine years later in Humphrey’s Executor.
5. Humphrey’s Executor (1935 / pg. 184) [tenure protection for principal officers]
a. Held: Principal officers who serve in independent, multimember agencies may be given tenure protection.
i. The officer in question was a Federal Trade Commissioner; Roosevelt fired him and put his own man in the position. No “cause” was stated; standard was “inefficiency, neglect of duty, or malfeasance in office.”
ii. The majority drew a distinction between “executive officers” who perform “executive functions” (like a postmaster) and “administrative bodies” that perform “quasi-legislative and quasi-judicial” functions, not executive ones (like the FTC).
b. Notes
i. Based on the Progressive idea that agencies are independent technocrats and aren’t a part of the executive branch at all.
ii. This sort of reasoning was discredited by the Court in Morrison, even as its holding was narrowly preserved.
iii. Extremely functional; that “quasi-legislative” talk is dead, these days. Agencies use executive power even when rule-making or adjudicating.
6. Wiener v. U.S. (1958 / pg. 190 & slide) [implied tenure protection]
a. Held: Although a statute does not contain restrictions on removal, the president may not fire a War Claims Commissioner at will, because, contrary to Decision of 1789, the president does not have the inherent power to do so.
i. Odd case. Relied on the idea that the statute was intended to allow the Commission to adjudicate claims free of executive influence. So, tenure protection was “implied” by the court.
b. Notes
i. Only case other than Free Enterprise Board to “imply” tenure protection from a silent statute.
7. Bowsher v. Synar (1986 / pg. 189) [Congress cannot be involved in removal]
a. Held: A statute that (1) allowed an officer to be fired by impeachment for by presented, joint resolution of Congress and (2) forbade the executive from firing an officer entirely is unconstitutional.
i. Because this officer performs executive functions;
ii. And the Constitution limits Congress’s removal role to impeachment.
iii. The remedy was allowing the president to fire this guy, rather than to forbid the officer from performing the executive functions.
1. This was a question of severability. Court decided that, if something had to go, it was tenure protection, not the ability of the officer to do what the statute said.
2. Would Congress have passed it without tenure protection?
b. Notes
i. Both conditions of the statute probably rendered it unconstitutional, but the court only explicitly considered (1).
ii. Majority was careful to say that it was not holding anything with respect to Congress’s ability to limit the executive’s discretion to fire people.
8. Morrison v. Olson (1988 / pg. 190) [modern tenure protection for inferior officers]
a. Held (Rehnquist, 8-1): A statute subjecting an inferior officer only to removal for cause by the Attorney General (a principal officer with no tenure protection) is constitutional, because this doesn’t interfere with the president’s ability to perform his constitutional duty.
i. Because the activities of one independent counsel aren’t “central” to the functioning of the executive.
ii. Because president maintains, through AG, some control over the I.C.:
1. AG controls when one will be appointed. (However, the statute makes it mandatory under some circumstances. But: it’s an unreviewable decision, so maybe this is some control).
2. AG can fire for good cause.
3. Jurisdiction of the I.C. is limited to facts submitted by the AG.
4. I.C. required to comply with DOJ policies unless not “possible.”
b. Held (Rehnquist, 8-1): This statute as a whole (the removal provisions + the other limitations on the executive’s power to control the I.C.) does not violate separation of powers.
i. Same reasons as above; the president maintains sufficient control over the I.C. for reasons (1)-(4).
c. Scalia, dissenting:
i. The statute as a whole violates the vesting clause, as it allows an executive officer to use a portion of the executive power while not being subject to the president’s “exclusive” control.
ii. Critical to this dissent is fact that he thinks I.C. is a principal officer.
iii. Even he admits that inferior officers can be given tenure protection, as he does not argue that Perkins was wrong. His theory is that inferior officers can have tenure protection, but only because :
1. A failure to accept supervision of a principal officer counts as “good cause”; and
2. Principal officers cannot have any tenure protection.
iv. Thus president can fully control the principal officer, and the principal officer, because “cause” is broad, can control the inferior officer.
9. Free Enterprise Fund v. PCAOB (2010 / pg. 200) [dual tenure protection]
a. Held (Roberts, 5-4): A system of dual tenure protection violate the vesting and take care clauses, as it prevents the president form maintaining control of that dually protected body.
i. This decision assumes that the president can only fire members of the SEC for cause; the PCAOB statute explicitly says that the SEC can only fire members of the PCAOB for heightened cause.
ii. Because the president has only incomplete control over the SEC, which in turn only has incomplete control over the PCAOB.
iii. That’s too much insulation; gives rise to the diffusion of power, a major concern that animated Appointments Clause to begin with.
iv. Court rejects the proposal to construe “good cause” broadly (i.e., to include policy disagreement as good cause) in order to save this statute from being unconstitutional; no precedents read good cause so broadly.
b. Breyer + 3, dissenting:
i. Functionalism has been understood to control this area since maybe Perkins and at least since Myers. This passes the functionalist test:
1. No president has ever fired anyone for “cause,” so it can’t be that important as a practical matter.
2. There are all kinds of soft, political controls that the executive can bring to bear on even independent agencies.
ii. There are good policy reasons for independence.
iii. If two layers of cause is unconstitutional, then one should be: in neither case can the executive fully control the body.
iv. Finally, the majority’s rule puts a large fraction of the administrative state into question; dual tenure protections exist all over the administrative state, e.g. civil service laws.
c. Notes
i. The SEC statute actually doesn’t say that its members can only be fired for cause. It was passed just after Myers, so it might have been thought that tenure protection wasn’t possible for such a body.
ii. But the majority “assumed” it. They and lower courts seem to believe that these multimember boards do have tenure protection.
iii. Majority is careful to