Administrative Law

The Constitutional Authority of Agencies

Introduction The federal bureaucracy is hardly mentioned in the U.S.

Constitution: Article II, Section 2:

“he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…”

Article II, Section 3: “he shall take care that the laws be faithfully executed, and shall commission

all the officers of the United States.” Where does the constitutional authority of federal executive

agencies come from? American Constitutionalism:

In fact, a federal bureaucracy seems to go against many of the ideas of American constitutionalism:

Limited government Separation of powers Federalism

Constitutional Foundations of the Federal Bureaucracy

There is little mention about the federal bureaucracy, but there is currently little doubt that Congress is given the authority to create agencies within the executive branch.

McCulloch v. Maryland (1819) Constitutional objections to the administrative state:

The structural aspects of the administrative state Exercises of bureaucratic power violate the constitutionally protected

rights of private parties Structural challenges to the administrative state:

Congress has exceeded its legislative powers by impermissibly delegating its lawmaking power to the bureaucracy (nondelegation doctrine).

In vesting executive agencies with legislative and judicial power, Congress has violated the principle of the separation of powers.

Congress has encroached on powers reserved to the states (federalism)

Limited Government Limited Government

Enumerated powers (grants of power) Article I, Section 8

Denials of power Article I, Section 9

Separation of powers Checks and balances Bill of Rights Disagreement among the framers on how limited the

powers of government, particularly Congress, should be. Hamilton – expanded power Jefferson – limited power

Limited Government? Implied powers The Commerce Clause

Interstate Commerce Act of 1887 Sherman Antitrust Act of 1890

Expanded the notions of congressional power under the commerce. The Constitutional Revolution of 1937

Battle between the Court and the president over the New Deal. National Industrial Recovery Act (NIRA)

Struck down by Supreme Court in 1935. National Labor Relations Board v. Jones and Laughlin Steel

Corporation. By 1941, Roosevelt had appointed 7 of the 9 justices on the Supreme

Court. The Commerce Clause would serve as the basis for the enactment of

far reaching social, economic, and environmental legislation. Wickard v. Filburn (1942)

Limited Government? By the 1970’s, Congress relied heavily on the Commerce

Clause creating: Environmental legislation and regulation

Endangered Species Act Clean Air Act Clean Water Act Hazardous Substances Act Comprehensive Environmental Response, Compensation, and Liability

Act. Worker safety

Occupational Safety and Health Act In the 1990’s the Supreme Court would finally put some

limitations on Congress’s use of the Commerce Clause. United States v. Morrison United State v. Lopez

Why does this matter for public administration?

Delegation of Legislative Power Article I, Section 1

“All legislative power herein granted shall be vested in a Congress of the United States…”

John Locke “The Legislative cannot transfer the Power of Making Laws to any other

hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others.”

Delegata potestas non potest delgari (“a delegated power cannot itself be delegated”

The Rule of Nondelegation In the nineteenth century, the nondelegation doctrine became firmly

established in constitutional law. Wayman v. Southard (1825) J.W. Hampton & Co. v. United States (1928) Panama Refining Co. v. Ryan (1935) and Schecter Poultry v. United States

(1935) Nevertheless, we still see cases arriving in the Court dealing with this issue:

Mistretta v. United States Whitman v. American Trucking Associations (2001)

Delegation of Legislative Power Evaluating Delegation

Arguments in Favor of Delegation An increasingly complex society characterized by

technological sophistication and economic interdependence, the sheer magnitude of problems demanding congressional attention, and the practical difficulties of regulation limit the ability of Congress to legislative comprehensively.

The slow pace of Congress makes it all but impossible for Congress to respond to all concerns.

Many subjects of regulation are too complex for members of Congress to effectively deal with.

Separation of Powers Gridlock Solution:

Subgovernments Agencies would exercise executive,

judicial, and legislative power. Controls: The branches then have certain

controls over executive agencies.

Economic Substantive Due Process 5th Amendment:

“No person shall be…deprived of life, liberty, or property without due process of law.”

14th Amendment: “…nor shall any State deprive any person of life, liberty, or property,

without due process of law…” Types of Due Process:

Procedural due process – set of procedures designed to ensure fairness in judicial proceedings.

Formal definition: The minimal requirements of notice and a hearing guaranteed by the Due Process Clauses of

the 5th and 14th Amendments, especially if the deprivation of a significant life, liberty, or property interest may occur.

Substantive due process – law must be fair in content and application. View in this way, the due process clause also guarantees certain substantive rights. This is when the government unreasonably or arbitrarily denies rights that are

inherent to the freedom of individuals. The law must be just and not unfairly deprive persons of life, liberty, or property. Formal definition:

The doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective.

Economic Substantive Due Process

Economic: The doctrine that certain social policies,

such as the freedom of contract or the right to enjoy property without interferences by government regulation, exist in the Due Process Clause of the 14th Amendment, particularly in the words “liberty” and “property”.

Other Constitutional Rights and Questions

Equal Protection Clause of the 14th Amendment Race Based Discrimination

Affirmative Action Gender Discrimination Equal Protection and the Administration of Elections

First Amendment Commercial Speech

Regulation of tobacco advertising Prayer in School

Fourth Amendment Administrative Searches

Camara v. Municipal Court of the City & County of San Francisco Drug Testing

The Fifth Amendment and the Takings Clause

Eminent domain – the inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use.

It is limited by… The Fifth Amendment

“…nor shall private property be taken for public use, without just compensation.”

The takings clause acknowledges the power of government to seize private property, but says that individuals must be fairly compensated.

Why did the framers allow the government the power to do this? The framers recognized that the government needs to be able to do this to

implement certain programs. Many states already had similar provisions in their state constitutions or in state

laws. Three main questions:

What constitutes “just compensation”? What constitutes a taking? What constitutes a public use?