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Separation of Powers
Administrative Delegation
Non-Delegation Doctrine
Art. I, Sec. 1 = “All Leg”
Principle that Congress may not delegate its legislative power to
administrative agencies – generally eroded to standards of delegation
Appointment & Removal
Powers
ALA Schechter:
No restraint on
President‟s legislative

choices – no

standards for trade,

industry, or activity –

unfettered discretion

for enacting laws by

President so invalid
Standards

Necessary for

Discretionary
Choices Made by

Executive Branch
Intell. Principle:
Criteria to Guide
Agency‟s

Discretion is

Necessary;

Agency cannot

make policy

decision, but may

use benchmarks
Panama Refining
(1935):

HOT OIL –

Regulation of whole

economy based on 1

standard (“unfair
competition”);
President cannot
have choice of what
is injurious or “unfair
competition” - cannot

make these choices

and act accordingly,

must be left to
legislature

NO other law has

been determined

to be invalid based

on delegation
Whitman
Trucking (2005):
“Necessary to protect
the public health [air
standards]” -
“determinable
standard” is not

necessary even for

Broad Regulatory

Schemes – use of

scientific data
allowed
Has Cong delegated a leg power
inappropriately?

Legislative

Veto as Check =

Unconstitutional,
Bicameralism
Chadha (1983):

Efficiency alone will

not save an action;

House judiciary

comm tried to revoke

a hold on deportation
for Chadha;

Deemed legislative

and needed

legislative process
Dissent:

Leg Veto is useful

tool and has been

used throughout

statutes

Evaluate the

legislative nature

of the decision
Evaluate the
Framers‟ Intent
(limited indp role
for each branch)

Whether efficient

or not is

immaterial, must

protect through

sep of powers and

structure

Includes legislative

veto as uncon for

all agency rules

too, must have

bicameralism to

overturn exec

action
Principal
Officer
Inferior
Officer

Must be selected by

the President and

consented to by the

Senate

Appointments Clause, Art. II, Sec. 2, cl. 2 – President nominates w/ Advice &

Consent from Senate, but may vest power for inferior officers in President, Courts

of Law, or Heads of Departments

(1) appointed by

President alone, OR

(2) appointed by

heads of depts, OR

(3) appointed by the

judicary
No reservation of

removal by

Congress

permitted EXCEPT

through

impeachment
Subject to

removal by

higher executive

official (i.e.
removed by
Attorney General)
Statute only
provides certain,
limited, duties

(not policy making

and no

administrative

duties outside

specific office)
Officer is limited
in jurisdiction –

examine through

scope off

jurisdiction
Limited tenure –
generally
“temporary” to
accomplish
specific task

Outside vesting is

granted Cong

deference but

need to evaluate

separation of

powers concerns –
no
“incongruous”
inter-branch
appointments

Principals may be

removed at will of

President, but

agency officers

generally must

have just cause –

measure is NOT
whether “purely
executive”

Must look to

whether removal
power restriction

impedes Pres

executive power to

execute laws – is

the burden

hampering ability

to control the

official?

If quasi-executive

and quasi-

legislative then
“good cause” is

permitted to

separate from full

executive control

over office

Interference in the

executive branch

functions?

Some means of

controlling the

actions of officer

are included –

then does not

violate sep of

powers
Generally Look
At:

(1) Incongruity

(2) Power Intrusion

(3) Power

Expansion
Scalia Dissent:
Any restriction on
the executive‟s

power should be

void and invalid;

good cause

restriction did so,

and so should not

be permitted
Morrison
Analysis

Constitution's Law Flow Chart

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