Admin law/ delegation question.

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Renzo
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Admin law/ delegation question.

Postby Renzo » Sat Apr 28, 2012 12:34 pm

Ok, so assume that Congress passes a law that explicitly delegates rule making authority to an admin agency. Can that agency share it's rule making authority?

For example: Congress (hypothetically) delegated to the EPA the power to write rules defining and regulating "Nuclear Power Generating Entities." Can the EPA promulgate a rule that says all employees of "NPGEs" must pass an NPGE background investigation by the DOJ, and thereby allow the DOJ to promulgate a rule defining who is trustworthy to work in an NPGE?

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kalvano
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Re: Admin law/ delegation question.

Postby kalvano » Sat Apr 28, 2012 1:41 pm

I would say no. I'm not sure there are any cases on point, but technically, Congress isn't supposed to delegate at all. Because of the administrative age in which we live, they are given broad latitude as long as they give an intelligible principle, but the whole point of delegating to an agency is that Congress feels that agency's expertise is necessary for that area of law. That agency re-delegating its authority would defeat that.

Renzo
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Re: Admin law/ delegation question.

Postby Renzo » Sat Apr 28, 2012 2:08 pm

kalvano wrote:I would say no. I'm not sure there are any cases on point, but technically, Congress isn't supposed to delegate at all. Because of the administrative age in which we live, they are given broad latitude as long as they give an intelligible principle, but the whole point of delegating to an agency is that Congress feels that agency's expertise is necessary for that area of law. That agency re-delegating its authority would defeat that.


I think I agree in principle, but consider the counterargument:

Certainly in my hypo the EPA could mandate that all plans and specifications for nuclear power plants use standard weights and measurements as defined by NIST, and wouldn't have to re-define what a "meter" means in this context, right?. And just as surely they could require that all radio transmitters used in such facilities be approved by the FCC, no?

So if the EPA can adopt these rules promulgated by another agency under authority that has nothing to do with nuclear power, simply because the agency that wrote the adopted regs has expertise, is there really any meaningful difference between doing so and simply asking another agency to lend its expertise to the first via a rule?

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kalvano
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Re: Admin law/ delegation question.

Postby kalvano » Sat Apr 28, 2012 2:17 pm

Renzo wrote:
kalvano wrote:I would say no. I'm not sure there are any cases on point, but technically, Congress isn't supposed to delegate at all. Because of the administrative age in which we live, they are given broad latitude as long as they give an intelligible principle, but the whole point of delegating to an agency is that Congress feels that agency's expertise is necessary for that area of law. That agency re-delegating its authority would defeat that.


I think I agree in principle, but consider the counterargument:

Certainly in my hypo the EPA could mandate that all plans and specifications for nuclear power plants use standard weights and measurements as defined by NIST, and wouldn't have to re-define what a "meter" means in this context, right?. And just as surely they could require that all radio transmitters used in such facilities be approved by the FCC, no?

So if the EPA can adopt these rules promulgated by another agency under authority that has nothing to do with nuclear power, simply because the agency that wrote the adopted regs has expertise, is there really any meaningful difference between doing so and simply asking another agency to lend its expertise to the first via a rule?



Merely adopting something already correctly promulgated by another agency wouldn't qualify as a delegation, I don't think. In the above instance, using the weights and measures, that would be simply incorporation of an already-existing rule. Like in your first hypo, they weren't aren't really "delegating" anything. They are simply saying you have to pass a DOJ background check to be qualified to work on the project. Presumably, the DOJ background check standard is well-known and already in force. That's not really delegation for the purposes of admin law. If the EPA passed off a portion of it's authority regulating NPGE's to another agency to make rules carrying the force of law, and it was rules governing how the NPGE operated, such as emissions standards or that sort of thing, that would be an admin delegation of authority. Passing off a key portion of what you are supposed to be regulating to another agency to make a new rule about it would be more in line with an admin delegation.

Renzo
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Re: Admin law/ delegation question.

Postby Renzo » Sat Apr 28, 2012 2:35 pm

kalvano wrote: Like in your first hypo, they weren't aren't really "delegating" anything. They are simply saying you have to pass a DOJ background check to be qualified to work on the project. Presumably, the DOJ background check standard is well-known and already in force.


Actually, the situation I am envisioning in my hypo is that there is no preexisiting standard DOJ background check, or that for some reason it is inadequate for the needs of the nuclear industry, such that the DOJ would have to create some sort of process by which to conduct the background checks the EPA rules require.

Or, for another hypo, what if the Dept. of Education had rulemaking authority to decide what schools are eligible for federal grants, and in exercising that authority, they mandated that all participating schools would have to submit all advertisements to the Federal Trade Commission for review prior to their use. Could schools protest this on the grounds that the FTC doesn't have authority to make rules regulating school ads, or is the Dept. of Ed.'s authority sufficient that they can call upon another agency for expertise?

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kalvano
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Re: Admin law/ delegation question.

Postby kalvano » Sat Apr 28, 2012 2:46 pm

Renzo wrote:
kalvano wrote: Like in your first hypo, they weren't aren't really "delegating" anything. They are simply saying you have to pass a DOJ background check to be qualified to work on the project. Presumably, the DOJ background check standard is well-known and already in force.


Actually, the situation I am envisioning in my hypo is that there is no preexisiting standard DOJ background check, or that for some reason it is inadequate for the needs of the nuclear industry, such that the DOJ would have to create some sort of process by which to conduct the background checks the EPA rules require.


OK, but going with that, that's still not the EPA really delegating its essential authority. That's them letting another agency with expertise in background checks design the mechanics of the background check based off the standards the EPA provides. The EPA is still retaining the ultimate authority, it's just letting the mechanics be worked out by someone else.

I guess it would depend on how much they delegated. If they just gave an intelligible principle - "we want safe personnel for the NPGE's" - then that would probably be an impermissible delegation. If the EPA said "we want safe personnel and they have to meet this criteria...X, Y, Z, W, B, A, and D", then I would say that's probably not really a delegation.

Renzo wrote:Or, for another hypo, what if the Dept. of Education had rulemaking authority to decide what schools are eligible for federal grants, and in exercising that authority, they mandated that all participating schools would have to submit all advertisements to the Federal Trade Commission for review prior to their use. Could schools protest this on the grounds that the FTC doesn't have authority to make rules regulating school ads, or is the Dept. of Ed.'s authority sufficient that they can call upon another agency for expertise?


That's a good one. I would say same as above...it depends on what criteria the DOE gives to the FTC. If they leave it broad enough that the FTC is basically formulating its own standards, then there is probably too much delegation. If they ask the FTC to review it according to standards the DOE promulgates, then that could work.




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