Admin Outline

Majority (Kavanaugh, Roberts, Thomas, Gorsuch, Alito)

INDS v Chadha (legislative power is vested in Congress)

Panama Refining gave “the President an unlimited authority to determine the policy and to lay
down the prohibition, or not to lay it down as he may see fit. And disobedience to his order is
made a crime punishable by fine and imprisonment”

A.L.A. Schecther Poultry

Court ruled the authority conferred on the President was an unconstitutional delegation of
legislative power because it delegated to the President “virtually unfettered” authority.

Whitman v. American Trucking Ass’ns

Court admitted it has “almost never felt qualified to second-guess Cognress regarding the
permissible degree of policy judgment that can be left to those executing or applying the law.”

- Counter: Dept of Trans v Assn of Am. Railroads (Thomas Concurrence) This abandons
the court’s role however, to enforce the structural separation of powers
- Dept. of Trans. (Alito Concurring) Constitutional structure is one upon which we rely as
a structural protection of individual liberty
- FCC v. Nat’l Citizens Comm. For Broad (Thomas Concurring) No pretense that the
agency is implementing a law enacted by Congress. Instead the executive is exercising
legislative power delegated by Congress. Law is made by the executive, not Congress
- Sessions v Dimaaya It “hand[s] off the job of lawmaking” to a prosecutor who is “free to
‘condem[n] all that [he] personally disapprove[s] and for not better reason than [he]
disapprove[s] it.’”
- Yakus: The proper division of labor between Congress and the Executive branch is
preserved “when Congress ... specifie[s] the basic conditions of fact upon whose
existence or occurrence ... it directs that its statutory command shall be effective,” even if
it is up to a given “administrative agency” to “ascer- tain[] from relevant data” when that
fact has oc- curred.”
- Armour v. City of Indianapolis: If that doctrine “is to retain any force,” Ar- mour v. City
of Indianapolis, 566 U.S. 673, 688, 693 (2012) (Roberts, C.J., dissenting), beyond a mere
canon of statutory construction, this Court must find a violation here.
- To put the matter slightly differently, just because the Court’s “precedents do not ask for
much from govern- ment in this area,” see Armour, 566 U.S. at 693 (Roberts, C.J.,
dissenting), does not mean they ask for nothing at all (analgous EPC challenge?)
- INS v. Chadha, 462 U.S. 919, 944 (1983). But “the fact that a given law or procedure is
efficient, convenient, and useful in facilitating functions of government, stand- ing alone,
will not save it if it is contrary to the Con- stitution. Convenience and efficiency are not
the primary objectives—or the hallmarks—of democratic government.”
- Dimaya, 138 S. Ct. at 1228 (concurring in part and concurring in the judgment)
(emphasis added). Rather, as Justice Gorsuch very recently rec- ognized, “[u]nder the
Constitution, the adoption of new laws restricting liberty is supposed to be a hard
 business, the product of an open and public debate among a large and diverse number of
elected repre- sentatives.” Given this fundamental truth, the proper course is to strike
down the statute.
- This Court has recognized that it might be appro- priate for a more searching
standard to apply in some circumstances. In particular, the Court previously re-
served the question whether a more searching stand- ard is required when the
authority Congress grants is the power to define crimes. See Touby,
- Loving Court relied heavily on the fact that the President pos- sessed significant Article II-based
authority in this area through his commander-in-chief power.
- A.L.A. Schechter Poultry Corp., 295 U.S. 495, Chief Justice Hughes “emphasized” the
fact that those cases “dealt with del- egation of a power to make federal crimes of
acts that never had been such before”
- See also Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980)
(“A construction of the statute that avoids this kind of open-ended grant should
certainly be favored.”).
- And at times, the Court has been able to interpret an ambiguous provision to
provide limiting standards so as to avoid an unconstitutional delegation, see Am.
Petroleum Inst., 448 U.S. at 646
- Determining a statute’s retroactive scope is principally the domain of Congress, such
that Congress is required to speak clearly when a law is to have retroactive effect.
See Landgraf v. USI Film Prods., 511 U.S. 244, 268 (1994); Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208-09 (1988).
- Bowen, 488 U.S at 208-09 (1988) (“[A] statutory grant of legislative rulemaking
authority will not, as a general matter, be understood to encompass the power to
promulgate retroactive rules unless that power is conveyed by Congress in express
terms.”)
- Gorsuch in oral argument: And I -- I'm having trouble thinking of another delegation
in which this Court has ever allowed the chief prosecutor of the United States to
write the criminal law for those he's going to prosecute. We say that vague criminal
laws must be stricken.
- We've just repeated that last term.
- Well, this is -- this is di erent in the sense that the Attorney General is deciding what
law applies, not whether a particular act or a particular exercise in commercial
activity is covered by an Act that certainly applies in a general sense. I mean, it's not
this -- in those instances, even in -- in -- in Touby, it's -- it's exercising fairly re ned
authority with respect to what activity is covered. Here, it's just saying are you going
to be -- it's not just covered by a law; does the law even apply to you?
-

Gov Args
As the Court has repeatedly observed, it has found only two statutes that lacked the necessary
“intelligible principle” -- and it has not found any in the last 80 years. Whitman v. American
Trucking Ass’ns, 531 U.S. 457, 474 (2001) (referring to A. L. A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935), and Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935)); see
Loving v. United States, 517 U.S. 748, 771 (1996) (same); Mistretta, 488 U.S. at 373 (same); see
also Mistretta, 488 U.S. at 416 (Scalia, J., dissenting) (explaining that the Court has “almost
never felt qualified to second-guess Congress regarding the permissible degree of policy
judgment that can be left to those executing or
applying the law”).

- Congress identified the Attorney General as its agent, see

34 U.S.C. 20913(d), and it “made virtually every
legislative determination in enacting SORNA, which has the
effect of constricting the Attorney General’s discretion to
a narrow and defined category.” Ambert, 561 U.S. at 1214;
- Touby v. United States, 500 U.S. 160, 165 (1991) (upholding
the Attorney General’s power to schedule controlled
substances on
- a temporary basis). Fu
- Schecther Distinction?
o No agency
o Delegaiton to pres who reviews industry codes
o Court cant make law
- Benzene
o Not invalidating but reading statute more narrowly than agency
o Congress sets basic policy
 Court reads in standard
 See also Whitman and court making law
Whitman v. Am. Trucking Assns: rejects DC Cir that statute unconst because ag failed to supply
intel princ for itself – if Cg doesn’t supply , statute simply invalid

o Use of aggressive statutory interpretation and canon of constitutional

avoidance
 Industrial Union Dept. v. Am. Petroleum Inst. [The Benzene Case] (1980):
Secretary shall promulgate standards “reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment.” OSHA had “carcinogen policy” → in the absence of proof
of a safe level, ANY level of the carcinogen above zero is bad → OSHA
made 1ppm of benzene maximum; rule carried high compliance cost.
Deep vertical delegation is OK.
 SCOTUS struck down the RULE but not the statute: statute gives
sweeping delegation without much guidance like Schechter
Poultry; but instead SCOTUS uses constitutional avoidance to
interpret statute aggressively to require OSHA to first make a
 determination that the workplace is not safe and that the
carcinogen poses a significant risk on health – EVEN THOUGH
words “significant risk” are not in statute
o Because OSHA’s interpretation verge on unconst violating
nondelegation doctrine, SCOTUS picks narrower
interpretation
o Low threshold for what satisfies the formal “intelligible principle” test:
 Whitman v. Am. Trucking Assns: “requisite to protect the public health”
enough of a standard for EPA to promulgate ambient air quality
standards in CAA

See American Power & Light Co. v. SEC, 329 U.S. 90, 104-06 (1946); J.W. Hampton, Jr. & Co.
v. United States, 276 U.S. 394, 406, 409 (1928); see also Yakus v. United States, 321 U.S.
414, 426 (1944) ("Only if we could say that there is an absence of standards for the guidance
of the Administrator's action, so that it would be impossible in a proper proceeding to
ascertain whether the will of Congress has been obeyed, would we be justified in overriding its
choice of means for effecting its declared purpose...."); Farina, supra note , at 486 (noting
that, after Yakus, the nondelegation inquiry shifted to the question of whether Congress had
supplied enough policy structure to control administrative discretion).

Loving This Court said we've upheld delegations whereby -- this is at page 768 of Loving --
we've upheld delegations where the executive de nes by regulation what conduct will be
criminal, so long as Congress has created the criminal o ense --

Concur (Ginsburg, Kagan, Breyer)

- Say agree in result but want more?
- Statutory interpretation often involves reading in limiting construction
- Comparison to other statutory cases and why can’t read in standard here
- Legislative History
Limiting factor is those convicted prior to July 27, 2006; thus, Congress unambiguously delineated
its general policy, public agency which was to apply it, and boundaries of delegated authority. United
States v Ambert (2009, CA11 Fla) 561 F3d 1202, 21 FLW Fed C 1596
-
Concur
- Maybe Ginsburg concur with liberals and say she does not think its okay here but limitee
because regulatory state needs this

gister pre-Act o enders to the maximum extent feasible, although, you know, as Justice
Rehnquist articulated in Industrial Union, the benzene case, there is still a question about
what feasibility means.

Dissent (Breyer?)

TBD: Kagan Soto

Justice Stephen Breyer and Kagan asked Baumgartel to address how to square Gundy’s argument with a
number of other situations in which the violation of agency-specified civil regulations can result in
criminal sanctions. Baumgartel ultimately appeared to concede that it “likely would be constitutional” if
the court concluded that the best interpretation of SORNA was that it commanded the attorney general to
register pre-act offenders to the maximum extent feasible — though she prudently hedged that concession
by stressing the important liberty interests at stake in this particular context when the attorney general
decides what is and is not feasible.

Kagan was concerned with whether a future attorney general could excuse pre-act offenders from
registering entirely. Wall suggested that the court should construe the statute to avoid leaving the attorney
general with that latitude.

Potential argument about whether the fact that AG never changed the position regarding
retroactivity