Capacity Free from political influence? Efficiency Do we think the agency should be doing this? Accountability Do we want deliberation? Is it so big we don’t need to worry? Vagueness versus scope Do we prefer a vague but more limited delegation or a broad but clear delegation? Implications? Can court regulate it? Can/should Congress fix it? What are the functions of the Non-delegation Doctrine? Ensures important choices of social policy are made by Congress accountability Provides agencies with “intelligible principle” to guide exercise of delegated discretion Allows that courts are able to test exercise of discretion against ascertainable standards Two ways to view the Non-delegation Doctrine: As a means of limiting the legislative power to delegate issues about which Congress is supposed to deliberate (i.e. that legislative power should go to the legislature) That some decisions are too important to be made by agencies even if they are not discretionary, and that these decisions should go to Congress (Benzene, allowing agency wide discretion as long as it made a threshold determination limiting its own power) Congressional Control of Agencies Enabling statute: Congress is creating the agency, and so can the scope of “hardwire” the agencies authority, etc Appropriations: Congress sets the budget for agencies and decides whether to fund them Oversight hearings: call heads of agency before Congress to testify Create Inspector General (IG) within agency Legislative veto (Chadha) Resisting one house veto b/c: Constitution Functionalism does not promote deliberation Appointment power: Senate and to appointment of high ranking “advice consent” officials THINK: Why is Congress trying to control the agency?
Capacity Free from political influence? Efficiency Do we think the agency should be doing this? Accountability Do we want deliberation? Is it so big we don’t need to worry? Vagueness versus scope Do we prefer a vague but more limited delegation or a broad but clear delegation? Implications? Can court regulate it? Can/should Congress fix it? What are the functions of the Non-delegation Doctrine? Ensures important choices of social policy are made by Congress accountability Provides agencies with “intelligible principle” to guide exercise of delegated discretion Allows that courts are able to test exercise of discretion against ascertainable standards Two ways to view the Non-delegation Doctrine: As a means of limiting the legislative power to delegate issues about which Congress is supposed to deliberate (i.e. that legislative power should go to the legislature) That some decisions are too important to be made by agencies even if they are not discretionary, and that these decisions should go to Congress (Benzene, allowing agency wide discretion as long as it made a threshold determination limiting its own power) Congressional Control of Agencies Enabling statute: Congress is creating the agency, and so can “hardwire” the scope of the agencies authority, etc Appropriations: Congress sets the budget for agencies and decides whether to fund them Oversight hearings: call heads of agency before Congress to testify Create Inspector General (IG) within agency Legislative veto (Chadha) Resisting one house veto b/c: Constitution Functionalism does not promote deliberation Appointment power: Senate “advice and consent” to appointment of high ranking officials THINK: Why is Congress trying to control the agency?