Chapter 2 Part I 1 Delegation Doctrine Rulemaking Great historical interest Key issue in the judicial fight over the new deal The United States Supreme Court was concerned that delegation of legislative or judicial powers to agencies violated separation of powers Court shifted to looking for whether Congress provided enough guidance for the court to review the agency actions The intelligible principle test This is all you need to know about the history 2 Intelligible Principle Rulemaking The court has to be able to review an agency s actions to make sure they are within the congressional grant of power 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 Key the law is constitutional but it does not provide useful power to the agency Under the delegation doctrine the law was unconstitutional 3 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 4 Delegation Doctrine Adjudications Old test was public versus private rights New Test 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 5 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 Can happen when adlaw is used for criminal actions There are state law fights over this Wooley There are limits on the transformation of criminal matters to 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 6 INS v Chadha 462 U S 919 1983 This is an important case about the relationship between Congress and agencies What is the legislative veto as used in this case Why was it efficient from the point of view of congress The legislative veto was very common at the time Chadha was decided 7 Adjudication Issues While we will talk about adjudications in the next chapter this is also an adjudication case 8 Are there Limits on Congressional Power over Aliens Congress Art I power To establish an uniform Rule of Naturalization combined with the Necessary and Proper Clause grants it unreviewable authority over the regulation of aliens Aliens in the US even illegals get constitutional protections such as criminal due process They do not get constitutional protection on deportation They get only limited rights on detention 9 The Immigration Question What are the political questions over immigration How have these changed over time What are the debates right now Why does immigration divide both conservatives and liberals 10 Background on Deportation What agency was the INS part of Now http www ice gov What is the significance of the shift Why did Congress give the DOJ the right to decide whether aliens should be allowed to stay in the U S Why did they want to retain a say in deportation proceedings Why is Congress ambivalent about deportation Why is this a special problem post 9 11 11 244 What the Alien has to prove to stay deportation has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application that during all of such period he was and is a person of good moral character is a person whose deportation would in the opinion of the Attorney General result in extreme hardship to the alien or to his spouse parent or child who is a citizen of the United States or an alien lawfully admitted for permanent residence Are these black and white factual determinations 12 Chadha s Situation Did Chadha enter the country legally How did he become deportable Does the statute give the agency the discretion to stay his deportation What did the ALJ find Did the agency agree 13 Legislative Veto What is the role of the House of Representatives in the law challenged by Chadha If they had not acted would Chadha have been able to stay in the country What was their ruling on Chadha Was it personal to Chadha i e did they vote against him specifically 14 Post Legislative Veto The ALJ immigration judge reopened the proceeding Does the ALJ or the agency have the right to override the congressional act Can the agency believe that it canrefuse to follow what it believes is a congressional action taken under an unconstitutional law 15 The Circuit Court Who joined Chadha in challenging the law Why did this produce a case and controversy issue What is the purpose of the case and controversy provision Can Congress modify the requirement Are the states bound to have a case and controversy requirement for their courts Who did the court invite to file briefs to resolve this problem 16 Standing before United States Supreme Court Did the Circuit Court stay the deportation order Why did Congress say that this ended Chadha s standing Did the United States Supreme Court buy this 17 Standing of the Agency Why did the Court say that the INS still had standing Does the president have to be on the opposite side of Chadha for the INS to be a party Who does the court say is the real adverse party in cases challenging the constitutionality of a statute Why is this an issue in the Defense of Marriage Act 18 Severability What is severability Why did Congress argue that the provisions of Sec 244 were not severable What happens if the whole section is thrown out What did the act say 406 If any particular provision of this Act or the application thereof to any person or circumstance is held invalid the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby 19 Political Question What is the political question doctrine Baker v Carr What is the basis for the Congressional claim that this is a