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.