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Admin Outline 2008

Admin Outline 2008

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admin law outline
admin law outline

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Admin Law, 2008
PART I: ADMIN AGENCIES AND THE CONSTITUTIONThe Nondelegation Doctrine
Analysis:1.Three formulations of the nondelegation doctrine:A.Congress can’t delegate period—minority view.B.Nondelegation doctrine imposes limits—Congress can’t give awayunfettered power; must give guidelines but how much guidance isdebatable—widely-held view.C.Posner-Vermuele: once Congress has passed a law and given itaway, it’s no longer w/in their purview and the exec/judiciary nowhas the power. (But there are powers that Congress cannot giveaway, like powers vested in sub-committees, constitutional powerslike Senate’s power to confirm, can’t give away power to vote etc.)2.Goals promoted by the nondelegation doctrine:A.Political accountability (since Prez is democratically elected)B.Democratic values of representative govt and accountabilitydecisions made by the collective Congress better protects freedomand reflects will of the people.C.Social K theory: representative decision-making allows people tomaintain certain private rights unless there is explicit authorizationto turn them into c/l wrongs.D.Promotes rule of law values:i.Promotes planningii.Transparency: tells you what is forbidden and what ispermissibleiii.Cabins discretionary authority of enforcement officialsiv.Constitution’s dual branch law-makingv.Promotes factions
3.
Congress can’t grant unfettered discretion/ authority over very broadsubject matter. ~
Schechter 
4.
Congress must provide intelligible principles to cabin discretion andsubject matter. It must provide meaningful guidance to the agencyand a court must be able to measure agency action against thatlimitation to determine if there was compliance w/ Congress’ will.~
 Amalgamated 
5.
Reverse engineering/constitutional avoidance: as administrativeagencies become more necessary for the bureaucracy to function, ctsmight be persuaded by the end goal to infer “intelligible principles” orpoint to terms in the statute and call them limiting terms in order tosave a statute and avoid answering the constitutional q.~
 Amalgamated/Benzene
6.
Limiting discretion:
Benzene
-look to the purpose of the statute inorder to infer limiting principles that Congress must’ve reasonablymeant
7.
Limiting subject matter:
 American Trucking
-the broader the subjectarea, the more the need for limiting principles; but cts will not second-guess Congress when it delegates policy-making authority to thosewho execute or apply the lawsCases
1.
CASE:
 ALA Schechter Poultry v US
 
1
 
Admin Law, 2008
A.Facts: NIRA granted power to Prez to enact codes of “faircompetition” by soliciting proposal codes from industry tradegroups that the Prez could then accept, reject or modify at will. D’swere convicted of violating the Live Poultry Code of NIRA.B.Held: SC strikes down the codes of “fair competiton” of NIRAfinding them to be an unconstitutional delegation of power to theprez.C.Reasoning:i.Lack of stds to guide the Prez gives him unfettered discretion:a.Subject matter: very broad—national economy
b.
Discretion: “fair competition” is not defined by act or jurisprudence unlike the terms “unfair;” has the power toaccept, reject or modify at will; only has to make sure thatthe proposals come from “truly” representative tradegroupsii.Prob is compounded by the fact that industry trade groups getto propose the codes—conflict of interestD.SC doesn’t offer stds to determine whether the subject matter istoo broad though.E.HYPO: if NIRA were passed today, and Congress included languagelike “unfair competition” or a reasonableness std, then probablypass constitutional muster.
2.
CASE:
 Amalgamated Meat Cutters v Connally 
 A.Facts: Meat Cutters Union challenged the Economic StabilizationAct, which froze prices and wages and granted authority to prez toenact further price/wage controls for a limited duration. This is thethird in a series of price stability acts. Occurs after APA is passed.B.Held: The ESA is not a forbidden delegation of power since itprovides “intelligible principles” to guide the prez’ actions in theform of inherent stds of “fairness and equity.”C.Reasoning:
i.
Intelligible Principle Rule:
there has to be meaningfulguidance given by Congress to the Prez AND a court must beable to review it later on to measure compliance w/ Congress’will
ii.
Unlike
Schechter,
there are intelligible principles here:a.Discretion: The intelligible principles of stds of “grossinequity” and “fairness” are inherent in the statute andmore comfortable since more experience w/ agencies bythis time.b.Subject matter: limited to price/wage freezes in a limitedwindow of timeiii.Additional important hook: once the prez has developed stds atthe outset, he is locked in and must follow them.iv.Political climate changed: APA has passed by this point and thisis the third in a series of similar acts.v.Reverse engineering: SC is persuaded that the ESA is avaluable and reasonable endeavor to address cost-pushinflation, so while they could strike it down for lack of explicitintelligible principles, they are willing to read in guidelines toavoid having to do so.
D.
Schechter,
distinguished:
2
 
Admin Law, 2008
i.Subject matter: ESA’s subject matter is more narrow thanNIRA/national economyii.Discretion: “fair and equitable” seems as vague as “unfaircompetition” but probably has more meaning by this point inhistoryiii.No delegation to private groups here.iv.APA has passed so less unsure about agencies by now.
3.
CASE:
Industrial Union v American Petroleum Institute
(The BenzeneCase)A.Occupational and Safety Hazard Act:
i.
3.8: the std requires conditions or practices,
reasonably necessary or appropriate to provide safe or healthfulemployment and places of employment 
ii.
6(b)(5): for toxic materials, the std is set at that which
most adequately assures, to the extent feasible, on the basis of thebest available evidence, that no employee will suffer materialimpairment.
B.Facts:i.OSHA has defined benzene to be a carcinogen. OSHA hasdefined carcinogens to be a type of toxic material. Thusbenzene = toxic material. OSHA’s policy is that carcinogenshave no safe levels thus lowest feasible level is best.ii.In 1971, per the Occupational Safety and Hazard Act, SoL setthe permissible exposure level to benzene at 10 ppm. OSHA’sresearch said that 10 ppm would require millions in compliancecosts but did not quantify the amount of the benefits to eachcategory of workers (but according to their studies, the benefitsare probably small).iii.OSHA recommends further limiting exposure level to 1ppm. (Ctreasonably assumes that further limitations drive upcompliance costs.) OSHA did not have scientific evidence onthe effects but rather, assumed a direct correlation b/texposure and harm: the less exposure, the less harm, thusOSHA wanted to lower as much as they could. They solicitedcomments as to whether 1 ppm was feasible; did not solicit onwhether exposure to less than 10 ppm would produce healthbenefits or not.
C.
Held: SC says that as a threshold matter, SoL must find thatbenzene poses a
significant health risk 
and that a new, lower std isreasonably necessary to combat that health risk.D.Reasoning:
i.
If the Ct agrees w/ the govt’s interpretation that the Act doesnot require the risk from a carcinogen to be sufficientlyquantifiable and understandable, then that would amount to asweeping delegation of power and it “might beunconstitutional” under
Schechter 
, thus Ct implies anintelligible principle into the statute in order to avoid theconstitutional question. (It’s not clear though that the SC’sinterpretation is unreasonable so plurality probably didn’tabuse its authority.)
ii.
 The purpose of the Act was to eliminate
significant risks
of harm, not to create a risk-free workplace. Congress could nothave meant to OSHA the power to regulate merely b/c the
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