Congress and the non-delegation d octrine

1. Congress and the non-delegation doctrine • Congress must provide an “intelligible principle” to which agency must look for guidance in setting standards • If no such intelligible principle exists in the legislation, Congress has delegated legislative power in violation of Art. I, Sec. 1 • Schechter found a broad, standardlessdelegation to President involving standards re whole economy to be unconstitutional. BUT SCT later upheld numerous broad delegations (Yakus/NBC) and hasn’t struck down a delegation since. • Although no delegation has been as broad as Schechter’s. • Many argue that non-delegation doctrine is relatively toothless as a result. BUT it does still play a role in SCT’s jurisprudence: • SCT (& lower courts) use non-delegation doctrine as an interpretive canon – i.e., to read statutes more narrowly in order to avoid delegation problems (Benzene case)

2. American Trucking – background on CAA (Sec. 109) & EPA regulations • Clean Air Act (“CAA”) directed EPA to establish w/in certain timeframe: • Primary “ambient” air quality standardsthat in the EPA administrator’s judgment, “are requisite to protect the public health” with “an adequate margin of safety” and • Secondary “ambient” standardsthat in the EPA administrator’s judgment, “are requisite to protect the public welfare from any known or adverse effects associated with the presence of such air pollutant in the ambient air” • EPA eventually adopted regs setting the amount of ozone/particulate matter at .08 ppm over 8 hours using the following criteria: • Nature/severity of health effects involved • Size of sensitive population at risk • Types of health information available • Kind and degree of uncertainties • How does the EPA know that the .08 ppm standard it eventually adopted is the right standard?

3. American Trucking, non-delegation and the problem of agency discretion • To what extent does Sec. 109 of the CAA limit the criteria the EPA can use to choose an exposure level? • Assuming the agency cannot take cost into account – what can it look to? • Why does the DC Circuit believe that the CAA violates the non-delegation doctrine? What does it want instead? • Why does SCT believe that the CAA provides an “intelligible principle”? • Does SCT’s conclusion respond directly to DC Circuit’s concern?

4. Amer. Trucking - variable discretion in delegations • SCT: In delegations “the degree of agency discretion that is acceptable varies according to the scope of power congressionally conferred.” • Ex: Congress need give little direction to EPA re how it defines “country elevators” that are exempt from “stationary source” regulations applying to grain elevators under the CAA – Sec. 7411(i) • Ex: Congress must provide substantial guidance as to relevant considerations in law telling EPA to establish air quality standards affecting entire national economy • The narrower the substantive area of delegation, the more discretion Congress can give the agency to make rules; the broader the area, the more Congress itself must give substantial guidance or set standards

5. American Trucking – can unconstitutional delegations be fixed by the agency? • SCT makes clear that only Congress (not an agency) can fix unconstitutional delegations. • Why shouldn’t agency be able to cure an unconstitutionally broad delegation by enacting determinate rules/regulations?

6. The Non-delegation Doctrine in State Constitutional Law 3 general approaches among the states: • Weak anti-delegation principle: Delegation is okay as long as the agency exercising power has adequate procedural safeguards in place. • Strong anti-delegation principle: Legislature must spell out reasonably clear standards or guidelines for agencies to follow. • Moderate anti-delegation principle: Degree of standards necessary to make delegation acceptable varies with the subject matter of the statute and the other procedural safeguards present.

7. Missouri and the non-delegation doctrine • Missouri falls into the 3rd category of states in terms of delegation principles: • Menorah Med. Ctr. v. Health Educ. Facility Auth., 584 S.W.2d 73 (Mo 1979): Legislative standards must guide agency discretion, but exceptions apply where it is impracticable, or delegation relates to protection of public morals, health, safety, and general welfare, or where personal fitness is a factor for agency consideration.

8. Congressional control of delegations through revisionof agency powers • Once Congress has delegated authority to an agency, it can always revise that authority if it is unhappy with the agency’s exercise of its powers: • Amend organic/enabling statute limiting agency’s authority • Enact a new statute directed to specific agency action • Legislative Veto • Conditional grant of decision-making authority to an agency that gives one or both houses of Congress the ability to override the agency’s decision by resolution

9. INS v. Chadha -- background • INA § 244(a)(1) allowed AG/INS to suspend deportations of individuals even if deportation was otherwise legitimate. • Chadha was an East Indian resident of Kenya who entered the US on a UK passport under a student visa. He overstayed his visa. • INS immigration judge found him eligible for deportation during a hearing but suspended his deportation due to extreme hardship. Sec. 244(c)(1). • Chadha had nowhere to go due to situation in Kenya and because of Britain’s actions. • After reporting suspension of his deportation to House of Rep. under Sec. 244(c)(1), House voted to override INS suspension in the case of Chadha and five others pursuant to Sec. 244(c)(2).

10. Justice Burger’s reasoning on why legislative veto violated the Constitution: • Exercise of the legislative veto was “essentially legislative in purpose and effect.” • It “had the purpose and effect of altering the rights, duties and relations of persons, including the AG, Executive Branch officials and Chadha, all outside the legislative branch” • When Congress exercises quintessentially legislative power it must meet the following requirements (unless it falls into a specifically identified exception). • Bicamerality(both houses must pass) • Presentment (to the President for veto/signature) • Article I, Sec. 7, cl. 2 & 3 • How does INA Sec. 244 fail to meet these requirements?

11. Is Justice Burger’s definition of legislative power satisfying? • What does it mean to “have the purpose and effect of altering the rights, duties and relations of persons”? • Was the INS altering Chadha’s rights when it suspended his deportation? What about the EPA (in Am. Trucking) when it set air quality standards? • What about a judge who orders a non-custodial parent to pay child support – does that “have the purpose and effect of altering the rights, duties and relations of persons”? • Would it have been better to characterize Congress’s decision to override the suspension of deportation in a different way?