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Chapter 2. The Delegation Doctrine Just History – So Far. This played out during the mid-1930s when Congress created several new agencies to fight the Depression . The Switch in Time that Saved Nine. Learning Objectives – Delegation Doctrine. Why did this become an issue in the 1930s?

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The delegation doctrine just history so far

The Delegation DoctrineJust History – So Far

This played out during the mid-1930s when Congress created several new agencies to fight the Depression.

The Switch in Time that Saved Nine.

Learning objectives delegation doctrine
Learning Objectives – Delegation Doctrine

  • Why did this become an issue in the 1930s?

  • What were the delegations that the Court was concerned with?

  • What would be the impact on government function if the court had persisted in finding delegations unconstitutional?

  • How did the court change its analysis of these cases to solve the delegation issue?

What is the delegation doctrine problem
What is the Delegation Doctrine Problem?

  • Can Congress delegate legislative or judicial power to an executive branch agency?

    • The Constitution is silent on this issue.

  • The United States Supreme Court initially found such delegations to violate separation of powers and struck down several pieces of New Deal legislation.

Shifting the question
Shifting the Question

  • Did Congress sufficiently direct the agency in the law delegating the power so as to limit the agency’s actions to those that would not violate separation of powers?

  • The judicial review question:

    • Does the statute provide enough guidance for the court to review the agency actions to assure that they comply with Congressional intent?

    • The "intelligible principle" test.

  • This is all you need to know about the history

Intelligible principle rulemaking
"Intelligible Principle" - Rulemaking

  • If the legislature does not provide an "intelligible principle" to guide the court in reviewing agency action, the courts will strike down the agency action

    • Under the old version of the delegation doctrine, the law was unconstitutional without regard to whether there was sufficient guidance to the agency.

  • Now the court will review the law and look for a standard to review the agency’s actions.

    • In practice, the court does not need to find much.

What is an intelligible principle
What is an Intelligible Principle?

  • Specific guidance is best

    • Congress will provide very specific guidance if it wants to limit agency discretion - the ADA

  • General/ambiguous guidance is also usually OK

    • ‘‘in the public interest"

    • Depends on whether context can provide meaning

    • We will explore this in the Chevron and FDA cigarette cases

Delegation doctrine adjudications
Delegation Doctrine - Adjudications

  • Old test was public versus private rights

  • New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)

    • [1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and

    • [2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,

    • [3] the origins and importance of the right to be adjudicated, and

    • [4] the concerns that drove Congress to depart from the requirements of Article III.

  • Is the administrative law judge (ALJ) acting as an Article III judge?

Judicial review as a check on delegated powers
Judicial Review as a Check on Delegated Powers

  • There is a right of judicial review of rules to determine if the agency has the legal authority to issue them and if they properly supported by the record.

  • There is a constitutional right to due process protections in adjudications, and usually a right to judicial review of the decision.

    • As we will see, Congress can limit judicial review in some circumstances.

Practical considerations
Practical Considerations

  • The court is very unwilling to find adjudications exceed constitutional authority under this test.

    • This may be because Congress has not passed laws which test the outer limits of agency authority

    • There are state law fights over this - Wooley

  • There are limits on the transformation of criminal matters into agency adjudications

    • Traffic court can be civil, but only if there is no jail time

    • Large civil fines push the edge, especially if there are also criminal penalties for the same act

  • Administrative detentions are OK, but not for punishment

    • Tuberculosis, denial of bail, mental health commitments

    • Guantanamo Bay detentions are administrative