Tuesday, February 28, 2017

Chapter 13 (Chapter Summaries) "The Administrative Branches: The Non-Delegation Doctrine, An Introduction" in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and Chapter 13 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 13. 
The Administrative Branches: The Non-Delegation Doctrine, An Introduction

A. Introduction

B. Problem 13
--SEC v. Chenery Corp.
--Notes and Questions
--Citizens To Preserve Overton Park, Inc. v. Volpe

C. The Administrative Branches: The Non-Delegation Doctrine, An Introduction
--Mistretta v. U.S.
--Notes and Questions
--Whitman v. American Trucking Associations
--Notes and Questions

D. Learning Objectives

A. Introduction

We have been considering the way that law is used to constrain the use of political power by the state. We have come to understand that the simple division of authority between a legislative, executive, and judicial branch is not sufficient to provide guidance for its use in the day to day activities of government. By the 21st century, though, the traditional division of the American federal government no longer accurately described the functional operation of the general government. The structure of the administrative state, and its relation to the political branches, in turn, is grounded in a legal basis, the application of which is interpreted and applied by the courts.

It is to that object that this Chapter is directed. Starting with the insights of Chapter 6, the student is introduced to the structures of the legal basis of constraints on the exercise of administrative agency authority. That legalization of structure requires an introduction to the non-delegation doctrine, the bundle of premises through which the three branch formal organization of the General Government can accommodate, at least functionally, an additional branch, and to manage that relationship without breaching the formal constraints of federal constitutional organization. The notion of the delegation of legislative power requires an assessment of the character of legislation and the differences between that and promulgating regulations. It also requires a consideration of the extent to which the coordinate branches of government might be required to receive quasi-legislative obligations delegated by Congress.

We have been looking at the theory of the organization of the United States government and its application by the Supreme Court in times of great contests between the branches of government. We have seen how the structural solutions to contests for power in a government based on the division of power and inter-branch cooperation for effective action (separation of powers and checks and balances) are meant to implement the three foundational political principles of governmental organization: federalism (general government of limited power), efficiency (government ought to be able to effectively assert its delegated powers), and tyranny avoidance (no person or branch of government ought to be able to consolidate governmental authority to itself). We have also seen how those struggles are both legal (the search for structural constraints in the constitution) and political (popular accountability to distinct segments of the electorate). There is also an element of good faith and constitutional loyalty built into the system.

But no amount of legal constraints will keep a government functioning where the branches choose to avoid cooperation and seek to act aggressively against the others. The U.S. government, then, is built on both law and politics. It is grounded in a faith[1] that the political social norms (the foundational political line embraced by the people and its leaders―memorialized in the three principles of government (federalism, efficiency and tyranny avoidance) will be applied without the need for compulsion and that officials will be held accountable by their respective electorate when they move toward constitutional crisis by failing to adhere to the foundational American political line. See Robin West, “Constitutional Fidelity and Democratic Legitimacy,” American Constitutional Society for Law and Policy (July 2007). This notion of constitutional faithfulness perhaps lies in the focus on oath taking in the U.S. Constitution (see, e.g., U.S. Const. Art. I §3; Art. II, §1; Art. VI). And it is important in other constitutional systems as well, though expressed perhaps differently in Germany and China, for example. See Larry Catá Backer, “The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the ‘Three Represents’), Socialist Rule of Law, and Modern Chinese Constitutionalism,” Journal of Transnational Law and Contemporary Problems 16, no. 1 (2006).

The student was also introduced to the interpretive difficulties of judicial application of the structural limits on governmental power to be exercised by the respective branches of the general government as embodied in the Constitution. The student was introduced to two important approaches to reading the constitution and interpreting its text. The first, formalism, looks principally to the express text of the provisions that may apply. The second, functionalism, looks principally to effects drawn from the intent and objectives of the text to be applied. The opinions in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) provided good examples of the consequences of applying either approach to the outcome of the case and the conclusions to be drawn from the text examined. Justice Black’s opinion, solidly formalist, led inexorably to the conclusion that the president was without power to seize the steel mills without Congressional acquiesce, whatever the consequences for the war effort that drove him to that action. The Chief Justice in dissent reached the opposite conclusion in a solidly functionalist reading of the text. He was not prepared to allow a narrow reading of the text get in the way of Presidential discretion in aid of the war effort. The middle ground, blending formal and functional concerns, was provided by the concurrence of Justice Jackson, who developed a multipart standard for testing the scope of Presidential discretion. In that case, however, Justice Jackson found that the limits of discretion (and the limits of a functional reading) exceeded principally because the President had functionally equivalent tools to get to his objective (the continued production of steel) that the President found politically unpalatable though they were legally suitable to meet his ends.

With this chapter we consider another aspect of governmental organization, one where one might view the fundamental principles of checks and balances and separation of powers inverted. Here we take up the role of the administrative state in the organization of government, and its relation to the carefully crafted government organization grounded in those principles of federalism, separation of powers, and checks and balances. We will discover that despite heroic efforts to harmonize them, the organization of the administrative sub-structure of the American general government, presents a potentially quite distinct approach to the application of these principles, one that remains controversial.

Learning Objectives:

(1) The student should be familiar with the role of the administrative structure of the U.S. government.

(2) The student should understand the non-delegation doctrine and the delegation of legislative power.

(3) The student should be familiar with the delegation of power to administrative agencies and its constitutional underpinnings by working through a problem and through a reading of SEC v. Chenery Corp.

(3) The student should be familiar the cooperative oversight by superior branches of government of administrative agencies, both its strengths and its weaknesses, and the intelligible principle doctrine through a reading of Mistretta v. U.S. and Whitman v. American Trucking Association.

(4) The student will apply the material cover in the chapter to a practical problem by working through a problem concerning the Rules Enabling Act. The student will consider the Constitution, Sibbach v. Wilson & Co., and Hanna v. Plumer.

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