§ 7.1 Introduction - 396
§ 7.2 Delegation of Legislative Power to Agencies - 397
§ 7.2.1 The Nondelegation Doctrine and Federal Agencies - 397
§ 7.2.1a From Field to the New Deal - 398
Old cases worried about the improper delegation of authority to the agency,
but upheld the laws
Remember, there were not a lot of these at the federal level
§ 7.2.1b From the New Deal to the Present - 401
1935 the United States Supreme Court struck a couple of provision of the National
Industrial Recovery Act
Then there was the big political fight with the court - "Switch in time
Then the court did not strike any more cases on a delegation theory.
§ 7.2.1c Revival of the Delegation Doctrine - 402
The hot question, given the 11th amendment cases, is whether the United States
Supreme Court will start using the delegation doctrine case again.
Amalgamated Meat Cutters and Butcher Workmen v. Connally (1971) - 402
What regulations were at issue?
What is the enabling act?
What power does this give the president?
What was going on that prompted congress to give the president this power?
Why did the union challenge this law?
What was the challenge?
What did the court say the union would have to show to prevail under this
Do the standards have to be found in the statute itself?
What was the limitation on the regulations that made the court less concerned
about their impact?
Were there other avenues of appeal?
Can this only be done under the war powers?
Industrial Union Department, AFL-CIO v. American Petroleum Institute - 404
What was being regulated?
Permissible levels of benzene in the workplace
The action came to the court as a challenge to the agency's record supporting
its choice of 1 ppm as the upper limit for benzene exposure, rather than
ppm. The API argued that there were no proven health effects below
10 ppm and thus the standard was unsupportable.
What guidance did Congress give the agency as to the cost benefit analysis
to be used?
There were five justices for overturning the standard, but they were split
over the reason.
Four saw this as a class failure to support the finding with a proper record
- Since Congress did not say reduce it as much as possible, the court found
that using a 1 PPM standard was not supported by the record when the lowest
level at which there were health effects was 10 PPM.
Why did Justice Rehnquist say the regulation was invalid?
What was his holding so worrisome to agency lawyers?
Harkens back to the New Deal court
Notes and Questions - 408
1. - American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490 (1981)
Another toxic exposure case - cotton dust
"Cost-benefit analysis by OSHA in promulgating a standard under § 6(b)(5)
is not required by the Act because feasibility analysis is. Pp. 2489-2497.(a)
The plain meaning of the word "feasible" is "capable of being
done," and thus § 6(b)(5) directs the Secretary to issue the standard that
most adequately assures that no employee will suffer material impairment of
health, limited only by the extent to which this is "capable of being done."
In effect then, as the Court of **2482 Appeals held, Congress itself defined
the basic relationship between costs and benefits by placing the "benefit"
of the worker's health above all other considerations save those making attainment
of this "benefit" unachievable. Any standard based on a balancing
of costs and benefits by the Secretary that strikes a different balance than
that struck by Congress would be inconsistent with the command set forth in
2 - Standards
Congress needs to set much more specific standards when the delegation infringes
constitutional rights, such as free speech.
Whitman v. American Trucking Ass'ns, Inc., 2001 (from supplement)
This was a hotly contested case that many constitutional law experts feared
would reinstate the anti-delegation doctrine.
What regs were at issue?
Why did the appeals court strike the regs?
How did the court say the agency could cure the problem on remand?
What does Section 109(b)(1) instructs the EPA to do?
What does the court say this tells us about cost benefit analysis (CBA)?
What did respondents say indicates that EPA must do CBA?
Has Congress required CBA in other provisions of the CAA?
How does that affect the court's analysis?
What does "hide elephants in mouseholes" mean in this case?
Why did the court say that an agency cannot cure an unconstitutionally vague
delegation of power through narrow construction?
What did the Solicitor General say that § 109(b)(1) of the CAA requires the
agency to do when it sets standards?
What is the key word and what does it mean?
What case does the court analogize this to?
Does the court find this an intelligible principle that can be judicially
What was the delegation in the two cases the court says are the only ones
where a law failed because of overly broad delegation?
What do Stevens and Souter say about their views on the anti-delegation doctrine?
As we will see later, most the delegation issues can be recharacterized as
vagueness issues under the Chevron analysis
§ 7.2.2 The Non-Delegation Doctrine and State Agencies - 413
The states, consistent with the greater distrust of agencies, tend to require
more specific and detailed delegation than do the federal courts.
Thygesen v. Callahan - 414
Court uses "intelligible standards" test
In an attempt to endow the requisite of intelligible standards with a conceptual
foundation, the Stofer court declared that a legislative delegation is valid
if it sufficiently identifies:
"(1) The Persons and Activities potentially subject to regulations;
(2) the Harm sought to be prevented; and
(3) the general Means intended to be available to the administrator to prevent
the identified harm."
In this case the legislation was unclear as to both the specific harm to be
prevented and the way to do it, so the act failed.
2 and 3 often merge - if the harm is sufficiently described, it will imply
the means of correction
The courts allow broad delegations when health and safety is at issue
Notes and Questions - 416
The feds allow some delegation to private organizations, usually in the form
of adopting standards developed by private groups, but also in running things
The states are less willing to allow delegation to private entities, although
they do it regularly with standards such as building codes, and even adopt them
as law while making the public buy them from the private group.
Do these become the law even if not officially published?
Should they lose copyright protection?
§ 7.3 - Narrowly Defining an Agency's Authority to Avoid Constitutional Questions
How is the constitutionality of the delegation of power different from the
legality of the agency's actions under the statute?
Kent v. Dulles - 420
What do the statutes require?
What is the constitutional right?
What were the usual grounds for denying a passport?
How does the court find the statute constitutional?
Notes and Questions - 421
3 - Rust v. Sullivan
Federal law says no money to support abortion
Agency says docs at federally family planning clinics cannot advocate abortion
?oes this raise free speech issues for the docs or patients?
No, the government does not have to fund all speech
Key out - could tell them if abortion was medically necessary
Modified by a recent case on legal services
Cannot limit the issues that attorneys' present in litigation
Probably driven by the special role of an attorney in the adversary system
Boreali v. Azelrod - 422 (NY state)
How broad is the statute that delegates power to the agency?
What did they want to regulate?
What is the inconsistency what undermined the regs?
Why did it create them?
How was the legislature's failure to act in this area seen as evidence that
these regs overstepped the delegated power?
Notes and Questions - 426
Some states - FL again - statutorily limit the authority of agencies to expand
their regulatory role beyond specific statutory provisions.
What if the agency were to require all HIV test reports to be reported to
the state for epidemiology and for contact tracing?
What it the agency were to require an HIV screening test for all pregnant
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