With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we continue to consider section III of the materials: III.B. Institutional Architecture of Law and Governance: The United States and Law Making--The Administrative Branches: The Non-Delegation Doctrine, An Introduction. Comments and discussion most welcome.
The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.
--Mistretta v. U.S., 488 U.S. 361 (1988).
--Whitman v. American Trucking Association, 531 U.S. 457 (2001). READ 462- 476.--Peter Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984). READ INTRO and PART I .
At the root of these problems lies a difficulty in understanding the relationships between the agencies that actually do the work of law-administration, whose existence is barely hinted at in the Constitution, and the three constitutionally named repositories of all governmental power—Congress, President, and Supreme Court. [ When, for example, a federal agency adopts a legislative “rule” following the procedures of the Administrative Procedure Act, how is this act to be understood constitutionally? In a colloquial sense, the agency is acting legislatively—that is, creating general statements of positive law whose application to an indefinite class awaits future acts and proceedings. Validly adopted legislative rules are identical to statutes in their impact on all relevant legal actors—those subject to their constraints, those responsible for their administration, and judges or others who may have occasion to consider them in the course of their activities. Does it follow that in the constitutional sense what the agency is doing should be regarded as an exercise of the “legislative Powers ... granted” by article I, “all” of which are vested in Congress? Or, given statutory authorization, is it to be regarded as an exercise of the executive authority vested in the President by article II, the judicial power placed in the Supreme Court (and statutorily created inferior courts) by article III, [FN13] or authority merely statutory in provenance? The Constitution names and ascribes functions only to the Congress, President and Supreme Court, sitting in uneasy relation at the apex of the governmental structure; it leaves undiscussed what might be the necessary and permissible relationships of each of these three constitutional bodies to the agency making the rule. Is it significant for any of these purposes whether the rulemaking authority has been assigned to a cabinet department or to an independent regulatory commission? Indeed, does it make sense to look to the Constitution, written so many years ago, for contemporary guidance or limits on the sorts of arrangements Congress can make? (Strauss, supra, 575-77).
This approach, he suggests, avoids the difficulties that the formalist project gas had in fitting this new center of power (usually understood as subordinate to the three co-equal branches of government accountable to the people under American democratic principles of government), within a structural framework which never contemplated either its existence or place within the organization of the federal government. This essentially functional approach, he argues, provides a more realistic approach to understanding (and perhaps also constraining within the base line principles of governmental organization (federalism, efficiency and tyranny avoidance)) the regulatory apparatus of state. (Ibid., 579-80).
“Separation of functions” suggests a somewhat different idea, grounded more in considerations of individual fairness in particular proceedings than in the need for structural protection against tyrannical government generally. It admits that for agencies (as distinct from the constitutionally named heads of government) the same body often does exercise all three of the characteristic governmental powers, albeit in a web of other controls—judicial review and legislative and executive oversight. As these controls are thought to give reasonable assurance against systemic lawlessness, the separation-of-functions inquiry asks to what extent constitutional due process for the particular individual(s) who may be involved with an agency in a given proceeding requires special measures to assure the objectivity or impartiality of that proceeding. The powers are not kept separate, at least in general, but certain procedural protections—for example, the requirement of an on-the-record hearing before an “impartial” trier—may be afforded. (Ibid., 577-8).But it works principally because this Fourth Branch is essentially subordinate and accountable to the apex branches of government that are meant to assert a constant and powerful oversight of the activities of the the administrative apparatus they have created. "Each agency is subject to control relationships with some or all of the three constitutionally named branches, and those relationships give an assurance—functionally similar to that provided by the separation-of-powers notion for the constitutionally named bodies—that they will not pass out of control." (Ibid., 579The effort is ultimately directed at regularizing and perhaps providing a theory under which one could bring together the basic principles of American government organization grounded in separation and cooperation under constraint, with the realities of an administrative apparatus which is less focused on formal separation and requires cooperation among the distinct branches of government in order to operate efficiently, the basic structures of which are nicely described in Part I (Ibid., 581-96). Yet it is not clear that such oversight is likely or effective, especially in those regulatory areas that are highly technical and the regulatory basis of which is constantly changing to meet either market conditions or changes in scientific, engineering or technical knowledge.
Strauss notes that this distinct and function approach is required because the administrative state represents a great shift from the 18th century of government which was the basis for the organization of the general government into three branches with an executive, the President, assisted by a small number of cabinet officers. (Ibid., 581-2). He identifies four propositions that encapsulate the modern administrative state in the West (and in the U.S. in particular):
1. The federal agencies are placed in the structure of federal government—as cabinet agencies, independent executive agencies, or independent regulatory commissions—without apparent regard for the functions they are to perform. Their internal and public procedures do not vary with their placement. The functions they perform belie simple classification as “legislative,” “executive,” or “judicial,” but partake of all three characteristics.Hinting at a relationship between agencies and the three branches of government as echoing that between a corporate board of directors and corporate officers, Strauss suggests that agencies have been allocated the day to day responsibilities of government by the representative organs of government now better equipped to consider policy and direction. A similar pattern could be discerned in the European Union from the 1980s when it changed its regulatory stance from technical to objectives based regulation. Yet this allocation has not been made along functional lines; rather pragmatic concessions to political realities and compromises has produced a patchwork of overlapping agencies with distinct characteristics and relationships to the three major branches of government. (Ibid, 584-85). What they do have in common, however are internal structures, function and procedures; and all are staffed by a professionalized bureaucracy whose staff are protected from political reprisal (to some extent) in the performance of their jobs. (Ibid., 586). I note only to some extent because, as Congress and the President have evidenced on occasion, disfavored agencies may have their budgets slashed and their staff diverted by exercises in oversight that can critically affect the operation of an agency so singled out for special and usually politically motivated treatment.
2. All agencies, whether denominated executive or independent, have relationships with the President in which he is neither dominant nor powerless. They are all subject to presidential direction in significant aspects of their functioning, and able to resist presidential direction in others (generally concerning substantive decisions).
3. All agencies have oversight relationships with Congress and the federal judiciary, and these relationships generally do not vary with the type of agency used.
4. The characteristics of the oversight relations of President and Congress with “executive” and “independent” agencies owe as much (or more) to politics as to law. (Ibid., 583).
But that also is consonant with Strauss's point that these agencies now are managed through cooperative arrangements among the executive, congress and the courts. The three branches of government, then, must cooperate to manage a bureaucracy of administrative agencies whose role includes quasi-executive, quasi-legislative and quasi-judicial tasks. The result is an inversion of sorts. The constitutionally mandated reparations of powers at the apex level of government is abandoned and a different sort of separation of powers is attempted. For administrative agencies, the executive, legislative and judicial functions may be aggregated in one organization, subject to a cooperative oversight by superior branches of government.
The extent of that oversight, its strengths and weaknesses, are nicely illustrated by the two cases for consideration today, Mistretta v. U.S., 488 U.S. 361 (1988) and Whitman v. American Trucking Association, 531 U.S. 457 (2001).
Mistretta considered the structural limits in the U.S. Constitution for creating an agency, the United States Sentencing Commission, appointing to that commission members of the federal judiciary, and vesting it with authority to determine mandatory sentences for federal crimes. According to its website,
The United States Sentencing Commission is an independent agency in the judicial branch of government. Its principal purposes are: (1) to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes; (2) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and (3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public. (USSC, An Overview of the U.S. Sentencing Commission).Sentencing, itself, had not been thought to be a function reserved in the federal Constitution exclusively to one of the branches of government under separation of powers principles. The three branches effectively shared responsibility for sentencing--Congress set sentencing ranges, the judges imposed sentences within these ranges or could suspend sentences where permitted, and the executive could reduce the effective time to be served through systems of early release (parole). The source of the issue lay with a determination by Congress that the then current system of indeterminate sentencing supplemented by a system of parole, which permitted judges substantial discretion, was not satisfactory to it for a variety of policy and political reasons.
Congress eventually settled on a new approach, based on mandatory-guideline system. To reform the then current system the Congress enacted the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984 (Pub.L. 98–473, S. 1762, 98 Stat. 1976).
-->The Commission is established "as an independent commission in the judicial branch of the United States." § 991(a). It has seven voting members (one of whom is the Chairman) appointed by the President "by and with the advice and consent of the Senate." "At least three of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Ibid. No more than four members of the Commission shall be members of the same political party. The Attorney General, or his designee, is an ex officio nonvoting member. The Chairman and other members of the Commission are subject to removal by the President "only for neglect of duty or malfeasance in office or for other good cause shown." Ibid. Except for initial staggering of terms, a voting member serves for six years and may not serve more than two full terms. §§ 992(a) and (b). (Ibid., §I.C.). The duties of the Sentence Commission were for the most part quasi-legislative and quasi-executive. They included, in addition to the promulgation of determinative sentencing guidelines, the obligation to revise and review the guidelines on a periodic basis. (Ibid. I.D.). In addition it made recommendation for Congressional changes sentencing constraints, provided Congress with annual reviews of the operation of the guidelines and had the power to
-->"establish general policies . . . as are necessary to carry out the purposes" of the legislation, § 995(a)(1); to "monitor the performance of probation officers" with respect to the guidelines, § 995(a)(9); to "devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel" and others, § 995(a)(18); and to "perform such other functions as are required to permit Federal courts to meet their responsibilities" as to sentencing, § 995(a)(22)." (Ibid).
The facts under which Supreme Court consideration of the constitutionality of the Sentencing Commission arose are simple, and grounded in an attack on the authority of the Sentencing Commission to promulgate criminal sentences:
On December 10, 1987, John M. Mistretta (petitioner) and another were indicted in the United States District Court for the Western District of Missouri on three counts centering in a cocaine sale. See App. to Pet. for Cert. in No. 87-1904, p. 16a. Mistretta moved to have the promulgated Guidelines ruled unconstitutional on the grounds that the Sentencing Commission was constituted in violation of the established doctrine of separation of powers, and that Congress delegated excessive authority to the Commission to structure the Guidelines. As has been noted, the District Court was not persuaded by these contentions. * * * * (Mistretta, II).A majority fo the Supreme Court concluded "that in creating the Sentencing Commission -- an unusual hybrid in structure and authority -- Congress neither delegated excessive legislative power nor upset the constitutionally mandated balance of powers among the coordinate Branches." We are concerned with that portion of the opinion that focused on that delegation.
The general doctrine applied by the Supreme Court in determining the extent of permissible delegation of apex branch power to an administrative agency is known as the "non-delegaiton doctrine," one grounded in the separation of powers principle. The Court explained: "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. Field v. Clark, 143 U.S. 649, 692 (1892)." (Ibid., III). But the constitutionally mandated structural constraint that Congress cannot delegate its legislative power does not mean that it may not secure something like a constrained functionally equivalent result by other means, ones grounded in checks and balances and the right of the three branches to cooperate. "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."
To satisfy the constraints of the non-delegation doctrine the Supreme Court has established a standard against which such delegations are considered. "In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). So long as Congress "shall lay 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." Id., at 409." (Ibid, III).
This intelligible principle test is "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. " (Ibid). The principle of efficiency (necessity) here appear to trump those of separation of powers. Pragmatism, then, and the ascendency of a functionalist sometimes drives Constitutional interpretation even when a formalist reading might have led the Court to reject this approach. This was the case here. But consider whether a formalist approach might have produced a functionally equivalent result by other means. Had the Court refused to create this wide exception to non-delegation on separation fo powers grounds, could the same end shave been met with the incorporation of a change to the text of the constitution permitting the organization of a regulatory agency branch of government? If so, the discourse would have been different--not one involving legal theory and applied by lawyers and courts, but one involving political theory and and participation by the democratically elected branches plus the electorate. Yet the judicial approach was sensible to the extent it created the possibility of efficient government efficiently; invoking the political process to change the structure of democratic states can be quite inefficient. Yet the political process might be sensible in a different way, preserving the legitimacy of the government created by popular consent on democratic principles. These arguments in a variety of forms continue unresolved and perhaps in our system unresolvable.
The Supreme Court majority noted a history of substantially broad delegations of power under this standard since the economic crisis of the 1930s.
In light of our approval of these broad delegations, we 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 . . . . Congress further specified four "purposes" of sentencing that the Commission must pursue in carrying out its mandate. . . . 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." 28 U. S. C. § 994(b). . . . Moreover, Congress directed the Commission to use current average sentences "as a starting point" for its structuring of the sentencing ranges. § 994(m). (Ibid).
The court also stressed the limiting principle for delegation quoting Yakus v. U.S., 321 U.S. 414 (1944): "Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose. 321 U.S. at 426. " (Ibid., III).
Given this broad reading of intelligible principle, there was more than enough guidance to meet the standard. " The Act sets forth more than merely an "intelligible principle" or minimal standards. One court has aptly put it: "The statute outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations." United States v. Chambless, 680 F. Supp. 793, 796 (ED La. 1988)." (Ibid).
The Majority then considered the separation of powers issue more directly. It noted the importance of the underlining principles that created a pragmatic and flexible approach to differentiated governmental power, which the Court drew form Justice Jackson's concurrence in the Steel Seizure Case. ""While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion). " (Ibid., IV).
These principles produce the standard the Court applies to judge challenges to Congressional action grounded in separation of powers principle--a "most compelling constitutional reasons" standard where a stature has been challenged that has been approved by both houses of Congress and signed by the President. (Ibid). Yet even under this standard this is a close case; but not close enopugh to warrant invalidation. (Ibid).
-->The Sentencing Commission unquestionably is a peculiar institution within the framework of our Government. Although placed by the Act in the Judicial Branch, it is not a court and does not exercise judicial power. Rather, the Commission is an "independent" body comprised of seven voting members including at least three federal judges, entrusted by Congress with the primary task of promulgating sentencing guidelines. 28 U. S. C. § 991(a). Our constitutional principles of separated powers are not violated, however, by mere anomaly or innovation. Setting to one side, for the moment, the question whether the composition of the Sentencing Commission violates the separation of powers, we observe that Congress' decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary. (Ibid). Thus, the issue here is one of judicial rule making. May members of the judicial branch exercise quasi legislative authority delegated to them by the legislative branch of the government, even when that delegation conforms to the constraints of the non-delegation doctrine? Though the Court admits that delegating quasi legislative power to the judiciary falls in a twilight area that is at best suspect, the difficulty is averted in this case because the delegation relates to the establishment of rules for the conduct of the business of the judicial branch itself. (Ibid). That is a delegation that has been acquiesced to by Congress in a variety of matters, including the establishment of federal rules of criminal and civil procedure and the rules of evidence.
In light of this precedent and practice, we can discern no separation-of-powers impediment to the placement of the Sentencing Commission within the Judicial Branch. As we described at the outset, the sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch. * * * * * That Congress should vest such rulemaking in the Judicial Branch, far from being "incongruous" or vesting within the Judiciary responsibilities that more appropriately belong to another Branch, simply acknowledges the role that the Judiciary always has played, and continues to play, in sentencing. (Ibid).Justice Scalia, in dissent raised an interesting separation of powers issue, but one that was precisely interesting only because it suggested the uniqueness of the case before the Court.
JUSTICE SCALIA, dissenting.The next reading, Whitman v. American Trucking Association, 531 U.S. 457 (2001), suggests the broadness of the Court's reading of the "intelligible principle" standard.
While the products of the Sentencing Commission's labors have been given the modest name "Guidelines," see 28 U. S. C. § 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U. S. C. § 3742 (1982 ed., Supp. IV). I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws.
* * * * *
Section 109(b)(1) of the [Clean Air Act] instructs the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of §108] and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U. S. C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an “intelligible principle” to guide the EPA’s exercise of authority in setting NAAQS. “[The] EPA,” it said, “lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much.” 175 F. 3d, at 1034. The court hence found that the EPA’s interpretation (but not the statute itself) violated the non- delegation doctrine. Id., at 1038. We disagree.
The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible 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 “fair competition.”. . . . We have, on the other hand, upheld the validity of §11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among se- curity holders.”. . . We have approved the wartime confer- ral of agency power to fix the prices of commodities at a level that “ ‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’”. . . And we have found an “intelligible principle” in various stat- utes authorizing regulation in the “public interest.” (Ibid., 474).