Originally, I intended a four part review of regulatory administrative agencies. However, as I developed my discussion, I saw some current trends in agency operations that appeared to create particular concerns over constitutional issues. Therefore, I have decided to elaborate on these problematic concerns:
Separation of Powers
The design of the U.S. Constitution is premised on the separation of powers. A prominent trend currently appears to be the setting of administrative agency policies and regulations as mandated by the executive branch of government. Such policy making, expressed in executive orders and by executive appointments tend to reflect agendas of the executive branch and to dilute independent thinking within agencies. At times, such influences have pushed agencies to the margins of their statutory authority, as when they have engaged in social engineering. Examples could include the recent presidential direction to federal agencies to take actions regarding potential chemical hazards and chemical facilities, and the president's "climate action plan" proposed to be implemented through agency action.
Secrecy and Due Process
Another apparent trend is secret operations by certain agencies, with resulting lack of accountability and due process. An example of this development could be the Independent Payment Advisory Board, created under the so-called ObamaCare law. THe Board is empowered to control spending and to make rules related to Medicare. It is reported that there is no administrative review or judicial review allowed of the Agency's decisions, and no public participation allowed in its rule making. (Wall Street Journal, June 20,2013, p. A21)
Another example could include the secret communication interceptions by the National Security Agency, including the secret supervisory court. Also, it has been reported that USEPA allegedly has withheld scientific research data upon which it has relied to impose air
quality rules affecting power plants (Wall Street Journal, July 30, 2013, p. A15)
What's Next?
A bill has been introduced in Congress called the Regulatory Improvement Act of 2013. It would create the regulatory Improvement Commission. The purpose of this agency would be to identify administrative agency regulations which are duplicative, obsolete or excessive. Congress would have to vote on the Commission's recommendations. Ok--another administrative agency in effect to create regulations to regulate the regulations of other administrative agencies? Dream on!
Fresh water is essential for life and commerce. However, its scarcity is resulting in increased regulation of water resources and their corollary, wastewater. This blog will discuss developments in such regulation. It will be my clepsydra measured by the flow of water law.
Thursday, August 22, 2013
Friday, August 16, 2013
ADMINISTRATIVE AGENCIES, PART 4--REGULATING THE REGULATORS
Except for limits imposed by legislatures, most constraints on the power of administrative agencies are judicial, arising in court cases. These include:
1. Administrative action beyond the scope of statutory power and authority. Since agencies are creatures of statutes, they have only the powers delegated to them by legislatures, as those statutes are interpreted by courts. If a court concludes that an agency action exceeds its authority, the action will be void.
2. Denial of procedural due process. The constitutional guarantee of due process extends to agency adjudicatory proceedings. Examples of denials of due process could include the denial of a hearing or appeal to a court from adverse agency decisions.
3, Confiscation. An agency decision which takes property without just compensation would also be contrary to a constitutional protection. An example could be an agency setting rates for utility service below the costs of service.
4. Arbitrary or prejudicial action. Obviously, if an agency rejects uncontroverted, relevant evidence, a court may find its decision to be arbitrary and capricious.
5. Decisions contrary to the manifest weight of the evidence. While courts generally do not make new evidentiary decisions per se on appeal from agency decisions, they do review the agency's record to determine whether the decision may be contrary to the manifest weight of the evidence.
6. Failure to make findings of fact. Agency adjudicatory decisions generally are required to include the agency's findings of fact based upon the evidentiary record before the agency. The primary purpose of the findings requirement is to enable courts on appeal to determine whether the agency decisions are supported by the evidence. Courts have differed as to what makes findings sufficient and sufficiently specific.
7. Failure to follow agency rules. Courts have reversed agency decision in situations where an agency has failed to follow its own procedural or substantive rules in reaching a decision.
8. Misconstruing a statute or prior court decisions. In the event that an agency incorrectly interprets a relevant statute or court precedent, a reviewing court may reverse an agency decision as a matter of law.
How effective are such constraints in regulating the action by administrative agencies? As a practical matter, the recourse for a party adversely affected by an agency decision is to appeal to the courts or to accept the decision. Requests for rehearing generally not granted. Appeals can be costly, take time, and may not suspend the effectiveness of the adverse agency action. Appellants also may find that some reviewing courts tend to slant toward the agency, particularly where the subject matter may be technical or scientific. Thus, some courts simply defer to the alleged "expertise" of the agency.
1. Administrative action beyond the scope of statutory power and authority. Since agencies are creatures of statutes, they have only the powers delegated to them by legislatures, as those statutes are interpreted by courts. If a court concludes that an agency action exceeds its authority, the action will be void.
2. Denial of procedural due process. The constitutional guarantee of due process extends to agency adjudicatory proceedings. Examples of denials of due process could include the denial of a hearing or appeal to a court from adverse agency decisions.
3, Confiscation. An agency decision which takes property without just compensation would also be contrary to a constitutional protection. An example could be an agency setting rates for utility service below the costs of service.
4. Arbitrary or prejudicial action. Obviously, if an agency rejects uncontroverted, relevant evidence, a court may find its decision to be arbitrary and capricious.
5. Decisions contrary to the manifest weight of the evidence. While courts generally do not make new evidentiary decisions per se on appeal from agency decisions, they do review the agency's record to determine whether the decision may be contrary to the manifest weight of the evidence.
6. Failure to make findings of fact. Agency adjudicatory decisions generally are required to include the agency's findings of fact based upon the evidentiary record before the agency. The primary purpose of the findings requirement is to enable courts on appeal to determine whether the agency decisions are supported by the evidence. Courts have differed as to what makes findings sufficient and sufficiently specific.
7. Failure to follow agency rules. Courts have reversed agency decision in situations where an agency has failed to follow its own procedural or substantive rules in reaching a decision.
8. Misconstruing a statute or prior court decisions. In the event that an agency incorrectly interprets a relevant statute or court precedent, a reviewing court may reverse an agency decision as a matter of law.
How effective are such constraints in regulating the action by administrative agencies? As a practical matter, the recourse for a party adversely affected by an agency decision is to appeal to the courts or to accept the decision. Requests for rehearing generally not granted. Appeals can be costly, take time, and may not suspend the effectiveness of the adverse agency action. Appellants also may find that some reviewing courts tend to slant toward the agency, particularly where the subject matter may be technical or scientific. Thus, some courts simply defer to the alleged "expertise" of the agency.
Thursday, August 8, 2013
ADMINISTRATIVE AGENCIES, PART 3--REGULATION GONE WILD?
Is the American regulated state today what the signers of the U.S. Constitution had in mind for the country in 1787? Obviously, interpretations of its provisions have evolved with political and societal changes over the past 225 years. However, it would seem that the incredible growth of agency regulation, particularly over the past 80 years, could not have been foreseen or even approved back in 1787.
Writing in 1833 in his Democracy in America, Alexis de Tocqueville said he was impressed by the accomplishments of non-governmental associations in America. "Not only do they have commercial and industrial associations...but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fetes, to fund seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons and schools."
Today, Tocqueville would find that such associational organizations have declined immensely, to be replaced by governmental programs, agencies and regulations. Indeed, there are so many rules today that it seems that the United States may have switched to the continental cicl code system of law, where specific statutes embody every detail of regulated life.
In his book, Tocqueville warned about regulation usurping associational life and individual initiative:
"Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like the authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided that they think of nothing but rejoicing. For their happiness such a government willingly labors, but it choses to be the sole agent and the only arbiter of that happiness: it provides for their security, foresees and supplies their necessities, facilities their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
"Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things; it has predisposed men to endure them and often to look on them as benefits.
"After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of men is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."
Tocqueville also pondered why, in a democracy, an individual obeys society and what are the normal limits of such obedience. He concluded that a person obeys "because he recognizes the usefulness of his association with his fellow men and because he knows that this association cannot exist without a regulating power." For Tocqueville, the general truth is "that the individual is the sole and best placed judge of his own private concerns and society has the right to control his actions only when it feels such actions cause it damage or needs to seek the cooperation of the individual."
Do you agree with Tocqueville?
Writing in 1833 in his Democracy in America, Alexis de Tocqueville said he was impressed by the accomplishments of non-governmental associations in America. "Not only do they have commercial and industrial associations...but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fetes, to fund seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons and schools."
Today, Tocqueville would find that such associational organizations have declined immensely, to be replaced by governmental programs, agencies and regulations. Indeed, there are so many rules today that it seems that the United States may have switched to the continental cicl code system of law, where specific statutes embody every detail of regulated life.
In his book, Tocqueville warned about regulation usurping associational life and individual initiative:
"Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like the authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided that they think of nothing but rejoicing. For their happiness such a government willingly labors, but it choses to be the sole agent and the only arbiter of that happiness: it provides for their security, foresees and supplies their necessities, facilities their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
"Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things; it has predisposed men to endure them and often to look on them as benefits.
"After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of men is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."
Tocqueville also pondered why, in a democracy, an individual obeys society and what are the normal limits of such obedience. He concluded that a person obeys "because he recognizes the usefulness of his association with his fellow men and because he knows that this association cannot exist without a regulating power." For Tocqueville, the general truth is "that the individual is the sole and best placed judge of his own private concerns and society has the right to control his actions only when it feels such actions cause it damage or needs to seek the cooperation of the individual."
Do you agree with Tocqueville?
Thursday, August 1, 2013
ADMINISTRATIVE AGENCIES, PART 2--WHERE DO THEY COME FROM?
The "classic" judicial decision statement is that administrative agencies are a creature of the legislature. So, in the case of federal agencies, such as US EPA, they have been created by Congress. (Federal agencies will be the primary focus of this series, but one may generalize to state and local agencies as well).
What gives Congress the power to create agencies? The modern profusion of federal agencies, with their alphabet soup acronyms, goes back to the F.D. Roosevelt administration in the 1930s. Roosevelt proposed various agencies in reaction to Depression issues. Initially, the Supreme Court reacted by finding such efforts unconstitutional. In turn, Roosevelt reacted with his "court packing" plan to expand the number of justices. However, attrition on the Court enabled Roosevelt to appoint new justices with less unconstitutional inclinations. Since then, it has been a rare event for the Court to find a federal agency to be unconstitutional.
When is the last time you have read the US Constitution? If you read it, you will not find any language stating that Congress has the power to create administrative agencies. The enumerated powers of Congress, Article 1, Section 8, says nothing about agencies.
However, Section 8 does give Congress the power to provide for the "general welfare of the United States" and the power "to regulate commerce...among the several states". Then, the key provision becomes the "necessary and proper clause", which states that Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
So, how does Congress create administrative agencies, such as US EPA? The concept simply is that Congress delegates to an agency a portion of its power so as to implement and administer regulatory policies and laws enacted by Congress. Thus, for example, EPA is charged with establishing specific maximum contaminant levels for drinking water in accordance with delegations of responsibility under the Safe Drinking Water Act. The extent of an agency's power is determined by the scope of authority delegated to it by Congress in a statute. For example, see my posting of February 26, 2013 discussing a court ruling that EPA had exceeded its statutory authority when it sought to regulate non-pollutants as a surrogate for regulation of pollutants. Whether an agency may have exceeded its statutory authority is to be determined by the courts.
Bear in mind that agencies are charged with implementing policies stablished by Congress, as we explore additional issues in this ongoing discussion.
What gives Congress the power to create agencies? The modern profusion of federal agencies, with their alphabet soup acronyms, goes back to the F.D. Roosevelt administration in the 1930s. Roosevelt proposed various agencies in reaction to Depression issues. Initially, the Supreme Court reacted by finding such efforts unconstitutional. In turn, Roosevelt reacted with his "court packing" plan to expand the number of justices. However, attrition on the Court enabled Roosevelt to appoint new justices with less unconstitutional inclinations. Since then, it has been a rare event for the Court to find a federal agency to be unconstitutional.
When is the last time you have read the US Constitution? If you read it, you will not find any language stating that Congress has the power to create administrative agencies. The enumerated powers of Congress, Article 1, Section 8, says nothing about agencies.
However, Section 8 does give Congress the power to provide for the "general welfare of the United States" and the power "to regulate commerce...among the several states". Then, the key provision becomes the "necessary and proper clause", which states that Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
So, how does Congress create administrative agencies, such as US EPA? The concept simply is that Congress delegates to an agency a portion of its power so as to implement and administer regulatory policies and laws enacted by Congress. Thus, for example, EPA is charged with establishing specific maximum contaminant levels for drinking water in accordance with delegations of responsibility under the Safe Drinking Water Act. The extent of an agency's power is determined by the scope of authority delegated to it by Congress in a statute. For example, see my posting of February 26, 2013 discussing a court ruling that EPA had exceeded its statutory authority when it sought to regulate non-pollutants as a surrogate for regulation of pollutants. Whether an agency may have exceeded its statutory authority is to be determined by the courts.
Bear in mind that agencies are charged with implementing policies stablished by Congress, as we explore additional issues in this ongoing discussion.
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