Constitutional Law I
Spring 2018
Professor Mike Ramsey
Supplemental Reading #2 – Legislative Control of Administrative Agencies
Whitman v. American Trucking Association, Inc., 531 U.S. 457 (2001).
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The Clean Air Act directed the Environmental Protection Agency (EPA) to set air pollution standards Ato protect public health . . . with an adequate margin of safety.@ The EPA is an agency controlled by the President, in the sense that the President can direct and remove the head of the EPA. Pursuant to this authority, the EPA established emission standards, which were challenged by the American Trucking Association as being improper lawmaking by an executive agency. The U.S. Supreme Court unanimously sided with the EPA.
Justice Antonin Scalia, for the majority:
In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, '1, of the Constitution vests A[a]ll legislative Powers herein granted . . . in a Congress of the United States.@ This text permits no delegation of those powers, and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must Alay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.@
The scope of discretion [the Act] allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite Aintelligible principle@ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring Afair competition.@ See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). . . . . [W]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. . . . . A certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action. . . . . Section 109(b)(1) of the [Act], which . . . we interpret as requiring the EPA to set air quality standards at the level that is Arequisite,@ that is, not lower or higher than is necessary B to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.
Justice Clarence Thomas, concurring:
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The parties [to this case have] . . . wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the Aintelligible principle@ requirement as the only constitutional limit on congressional grants of power to administrative agencies, . . . the Constitution does not speak of Aintelligible principles.@ Rather, it speaks in much simpler terms: AAll legislative Powers herein granted shall be vested in a Congress.@ U.S. Const., Art. 1, ' 1(emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than Alegislative.@
As it is, none of the parties . . . has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders= understanding of separation of powers.
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Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991).
By statute, Congress empowered the Authority to operate the Washington, D.C.-area airports, subject to oversight of a nine-member review board composed of members of Congress. The review board, which the statute authorized to veto operational decisions of the Authority, was appointed by the directors of the Authority from a list of members of Congress, submitted to the Authority by Congress. After the Authority and the Board approved a substantial expansion of Washington’s National Airport, residents living in the airport’s flight path challenged the Board’s constitutionality. The Supreme Court agreed with the residents in a 6-3 decision.
Justice John Paul Stevens, for the majority (joined by Justices Blackmun, O’Connor, Scalia, Kennedy, and Souter):
To forestall the danger of encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on the Congress. It may not invest itself or its Members with either executive power or judicial power. And when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified in Article I. INS v. Chadha.
The first constraint is illustrated by … Bowsher v. Synar, … [which] involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was, in effect, an agent of Congress, the Court held that he could not exercise executive powers:
"To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. . . . The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess."
The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress, by resolution, to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality, because Congress may not delegate the power to legislate to its own agents or to its own Members. ….
…. We … conclude that the Board of Review's power is constitutionally impermissible. If the [Board’s] power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7. In short, when Congress "[takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch," it must take that action by the procedures authorized in the Constitution. See Chadha …
Justice Byron White, dissenting (joined by Chief Justice Rehnquist and Justice Marshall):
…[N]ever before has the Court struck down a body on separation of powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board's power represents the type of "legislative usurpatio[n] . . . which, by assembling all power in the same hands . . . must lead to the same tyranny," that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). ….
The Court asserts that the Board … is controlled by Congress. The analysis the Court has hitherto employed to recognize congressional control, however, show this not to be the case.
As Bowsher made clear, a "critical factor" in determining whether an official is "subservient to Congress" is the degree to which Congress maintains the power of removal. Congress cannot "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of" the removal of a federal executive officer. Myers v. United States, 272 U.S. 52, 272 U.S. 161 (1926). Here Congress exercises no such power. Unlike the statutes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the Board shall sit for fixed terms, but may be removed by the Board of Directors for cause. …
The majority counters that Congress maintains "effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board." This conclusion rests on the faulty premise that the Airports Act requires the removal of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board "shall consist" of Members of Congress who sit in certain specified committees. Moreover, the Act elsewhere provides that the standard term of service on the Board is six years. This term, which spans three Congresses, suggests that a Board member's tenure need not turn on continuing committee or even congressional status.
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The majority alternatively suggests that the Board wields an unconstitutional legislative veto contrary to Chadha. If the Board's "power is legislative," the Court opines, "Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7." The problem with this theory is that, if the Board is exercising federal power, its power is not legislative.
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Mistretta v. United States, 488 U.S. 361 (1989).
The Sentencing Reform Act of 1984 created the U.S. Sentencing Commission, a body charged with developing a set of “Sentencing Guidelines” for determining criminal sentences in federal court. Despite their name, the “Guidelines” are binding on federal courts, subject to some limited authority provided by the guidelines themselves to depart upward or downward in unusual cases. The Commission has seven voting members with six-year terms, appointed by the President with advice and consent of the Senate and removable by the President for cause only. In an 8-1 decision, the Supreme Court upheld the Guidelines against a separation-of-powers challenge.
Justice Blackmun, for the majority (joined by Chief Justice Rehnquist and Justices Brennan, White, Marshall, Stevens, O’Connor, and Kennedy)
Petitioner argues that in delegating the power to promulgate sentencing guidelines for every federal criminal offense to an independent Sentencing Commission, Congress has granted the Commission excessive legislative discretion in violation of the constitutionally based nondelegation doctrine. We do not agree.
The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U. S. Const., Art. I, § 1, and we long have insisted that the integrity and maintenance of the system of government ordained by the Constitution mandate that Congress generally cannot delegate its legislative power to another Branch. We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. … So long as Congress [lays down] by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.
Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. … [W]e harbor no doubt that Congress' delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to "assure the meeting of the purposes of sentencing as set forth" in the Act; to "provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records . . . while maintaining sufficient flexibility to permit individualized sentences," where appropriate; and to "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process." Congress further specified four "purposes" of sentencing that the Commission must pursue in carrying out its mandate: "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"; "to afford adequate deterrence to criminal conduct"; "to protect the public from further crimes of the defendant"; and "to provide the defendant with needed . . . correctional treatment."
In addition, Congress prescribed the specific tool — the guidelines system — for the Commission to use in regulating sentencing. More particularly, Congress directed the Commission to develop a system of "sentencing ranges" applicable "for each category of offense involving each category of defendant." Congress instructed the Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code and could not include sentences in excess of the statutory maxima. Congress also required that for sentences of imprisonment, "the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment." Moreover, Congress directed the Commission to use current average sentences "as a starting point" for its structuring of the sentencing ranges. …