VOLUME I: SOURCES OF POWER AND RESTRAINT
CHAPTER 4:
THE CONSTITUTION AND THE MODERN ADMINISTRATIVE STATE
Chapter Overview
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem (for Classroom Discussion or Essay Examination)
Introduction of Topic in Lecture
Questions for Website
CHAPTER OVERVIEW:
The Delegation of Legislative Power
Additional Separation of Powers Concerns
Congressional Control of Administrative Actions
Presidential Control of the Bureaucracy
Judicial Oversight over the Administrative State
NOTES ON EXCERPTED CASES:
J. W. Hampton Co. v. United States (1928). In this case the Supreme Court sustained
“contingency” tariff legislation that not only allowed presidential discretion as to when to
apply a tariff but also granted the President the power to alter the tariff rate. The Court
expanded the permissible scope of legislative delegations by holding that: “If Congress
shall lay down by legislative act an intelligible principle to which the person or body
authorized to fix such rates is directed to conform, such legislative action is not a
forbidden delegation of legislative power.”
Schechter Poultry Corporation v. United States (1935). In this case the Supreme Court
invalidated a provision of the National Industrial Recovery Act of 1935 that allowed the
executive branch to promulgate “codes of fair competition” for a broad range of
industries. These codes, developed in some cases in cooperation with targeted industries,
were enforceable by criminal and civil penalties established by Congress. The Schechter
Poultry Corporation was convicted on several counts of violating the Live Poultry Code
Bowsher v. Synar (1986). Congressed adopted the Balanced Budget and Emergency
Deficit Control Act of 1985, popularly known as the Gramm-Rudman-Hollings Act, in an
effort to eliminate the national deficit over a period of years. The legislation required
automatic spending cuts in order to achieve a balanced budget. The Act required the cuts
to be made by the Comptroller General if Congress proved unwilling or unable to
legislate such cuts within a given timetable. Within hours of the President’s signing of
the Act, Congressman Synar, who had voted against the Act, filed a complaint seeking
declaratory relief that the Act was unconstitutional. Eleven other Members later joined
Congressman Synar’s suit. A virtually identical lawsuit was also filed by the National
Treasury Employees Union. The Union alleged that its members had been injured as a
result of the Act’s automatic spending reduction provisions, which suspended certain
Whitman v. American Trucking Associations (2001). In this case the American
Trucking Associations and other business interests challenged new EPA limits on ozone
Immigration and Naturalization Service v. Chadha (1983). This case involved a
resolution adopted by the House of Representatives reversing a deportation decision
reached by the INS. This veto resolution was based on authority given to both houses of
Congress by the Immigration and Nationality Act of 1952. As allowed under the Act, the
House veto resolution was neither submitted to the Senate nor presented to the President
for approval. In Chadha, the Supreme Court majority chose to view the veto as a
legislative act subject to the requirements of Article I. In adopting this approach, the
Court not only invalidated the INS veto provision actually before it but rendered some
two-hundred similar statutory provisions presumptively unconstitutional. Reacting to the
breadth of the majority opinion, Justice Powell wrote a concurring opinion in which he
Gonzales v. Oregon (2006). In 2001, Attorney General John Ashcroft issued a rule
interpreting the federal Controlled Substances Act (CSA) to the effect that doctors would
be prohibited from prescribing lethal doses of drugs to terminally ill patients who wished
to end their lives. Ashcroft’s rule was an effort to counter Oregon’s Death with Dignity
Act, which permits doctor-assisted suicide within a state regulatory framework. The
Supreme Court found that the CSA did not confer on the Attorney General the authority
to issue this rule. The Court further found that the CSA does not prohibit doctors from
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (1978).
In 1973 the Court of Appeals for the D.C. Circuit reviewed a decision of the Atomic
Energy Commission (AEC). AEC had initiated an informal rulemaking proceeding to
determine the manner in which potential environmental damage resulting from disposal
of spent nuclear fuel should be reflected in deciding whether to license nuclear power
plants. The agency refused to grant the Natural Resources Defense Council’s request to
cross-examine witnesses. The Court of Appeals reversed the agency’s ruling because the
agency had failed to adopt procedures that would assure a “thorough ventilation of the
issues.” The Supreme Court entered the picture to clarify an agency’s procedural
Goldberg v. Kelly (1970). During the 1960s the New York City Department of Social
Services followed the procedure of furnishing a welfare recipient a seven-day notice
before it terminated federally assisted welfare benefits. A welfare recipient who objected
was permitted to file a written statement in protest; however, no provision was made for a
pre-determination evidentiary hearing. A welfare recipient filed suit contending that lack
of a pre-determination hearing before termination of his welfare benefits denied him due
process of law. The Supreme Court framed the issue as follows: “[W]hether a State that
Matthews v. Eldridge (1976). Here the Court upheld procedures under which social
security disability benefits could be initially terminated without a prior evidentiary
hearing. George Eldridge, who was originally disabled due to “chronic anxiety and back
strain,” was informed by an official letter that, according to medical reports, his disability
no longer existed and that benefit payments would be terminated. Although agency
procedures required ample notification and an evidentiary hearing prior to final
termination, the payments could be stopped initially without any hearing. Provision was
also made for retroactive payments to any recipient whose disability was later determined
QUESTIONS FOR THOUGHT AND DISCUSSION:
1. Is the federal bureaucracy a virtual fourth branch of government?
2. What would James Madison say about the rulemaking, investigatory and adjudicatory
powers of regulatory agencies like the Securities and Exchange Commission?
3. Does the modern administrative state make a mockery of the constitutional doctrine
of separation of powers?
4. How does the modern administrative state comport with the Framers’ notion of
limited government?
5. What is the most effective means by which the president can control the behavior of
agencies within the Executive Branch?
6. How can the Supreme Court be so permissive with regard to the delegation of
congressional lawmaking power to executive agencies and so strict in striking down
the legislative veto?
7. Do the Supreme Court’s decisions dealing with the federal bureaucracy manifest a
coherent constitutional theory?
8. What legitimate constitutional means do Congress and the president have at their
disposal to control the federal bureaucracy?
9. Have Congress and the courts given sufficient attention to the requirements of
procedural due process relative to administrative decision making?
10. Should administrative agencies responsible for regulating hazardous industries be
held to the same Fourth Amendment search and seizure standards that apply to police
officers enforcing the criminal law?
11. Consider the perspectives on the modern administrative state and the nondelegation
doctrine expressed by various Supreme Court justices, scholars and legal
practitioners. Which perspective do you believe is the most accurate? Have we
reached a point in our governance that congressional delegation to the bureaucracy is
almost a necessity of the times?
MULTIPLE CHOICE QUESTIONS:
government envisaged by the Founders began to evolve in the direction of ever
more complex and intrusive regulation.
a. Interstate Commerce Act
b. Sherman Anti-Trust Act
c. Pure Food and Drug Act
d. Pendleton Civil Service Act
ideal of individual freedom, liberal theorists of the 20th century, such as _______,
envisaged a much broader role for government.
a. Thomas Hobbes
b. John Dewey
c. Milton Friedman
d. Henry James
state poses serious questions of constitutional law-questions involving the rule of
law, separation of powers, federalism, and _______.
a. individual liberty
b. separation of church and state
c. public policy
d. eminent domain
transferred to the federal bureaucracy much of the responsibility for making and
enforcing the rules and regulations deemed necessary for a technological society.
a. usurpations
b. resolutions
c. exercises
d. delegations
constitutional problems raised by legislative delegation.
a. William Howard Taft
b. Melville Fuller
c. Charles Evans Hughes
d. none of the above
power in __________________ (1813).
a. Chisholm v. Georgia
b. Adair v. United States
c. Hampton v. Hollins
d. Brig Aurora v. United States
Court accorded broad deference to delegations of legislative power to the
president in the field of ________.
a. domestic policy
b. foreign affairs
c. federalism
d. civil rights
_________________________.
a. constitutionality of administrative regulations
b. constitutionality of statutes
c. rules of federal judicial procedure
d. qualifications of members of Congress
struck down provisions of the __________________.
a. Agricultural Adjustment Act
b. National Industrial Recovery Act
c. National Labor Relations Act
d. Pure Food and Drug Act
Balanced Budget and Emergency Deficit Control Act of 1985, popularly known
as the _________.
a. Price-Anderson Act
b. Smith Act
c. Manson-Brady-Harlan Act
d. Gramm-Rudman-Hollings Act
measures as ____________________________.
a. attaching riders to appropriations bills
b. conducting oversight hearings
c. reducing agency budgets
d. all of the above
Chadha (1983), Justice ________ defended the legislative veto as an innovation
in keeping with an evolving system of checks and balances.
a. Lewis Powell
b. William Brennan
c. John P. Stevens
d. Byron White
a. Supreme Court’s decision in the Chadha Case
b. the Administrative Procedure Act
c. Due Process Clause of the 5th Amendment
d. Freedom of Information Act
decision making: rule-making and ________________.
a. adjudication
b. enforcement
c. licensure
d. policy making
doctrine was reaffirmed in _____________, where the Court upheld Congress’
creation of the United States Sentencing Commission and recognizing the
constitutionality of detailed Sentencing Guidelines promulgated by the
Commission.
a. Mistretta v. United States (1989)
b. United States v. Curtiss-Wright Export Corporation (1936)
c. Immigration and Naturalization Service v. Chadha (1983)
d. Whitman v. American Trucking Associations (2001)
constitutionality of the _____________ Act of 1978.
a. Clean Air
b. Ethics in Government
c. National Security
d. Freedom of Information
to reorganize executive agencies, set their agendas, and even alter their
procedures.
a. TRUE
b. FALSE
only if “the potential benefits to society for the regulation outweigh the potential
costs to society” was issued by President _____.
a. Bill Clinton
b. Ronald Reagan
c. Jimmy Carter
d. George W. Bush
asserted that the separation of powers principle had been violated, concluding that
the new Sentencing Commission amounted to a “junior varsity Congress with
extensive lawmaking power.”
a. Lewis Powell
b. Anthony Kennedy
c. Antonin Scalia
d. Clarence Thomas
(2000), the Supreme Court held that the FDA lacked statutory authority to
promulgate regulations designed to limit young people’s access to tobacco
products.
a. TRUE
b. FALSE
argued for the restoration of the ____________ rule.
a. Theodore Lowi; Schechter
b. Mancur Olson; free rider
c. V.O. Key; informed consent
d. Lief Carter; Chevron
Amendment Due Process Clause required a state agency to provide a ________
before terminating a person’s welfare benefits.
a. grace period
b. written justification
c. hearing
d. lawyer
______ benefits could be initially terminated without a prior evidentiary hearing.
a. unemployment compensation
b. worker’s compensation
c. social security disability
d. Aid to Families with Dependent Children
without a warrant, had employed a commercial aerial photographer to take
pictures of a chemical plant from an altitude of 1200 feet.
a. Federal Bureau of Investigation
b. Occupational Safety and Health Administration
c. Bureau of Land Management
d. Environmental Protection Agency
constitutional right, Congress has created a statutory right of public access to
government information under the _____________.
a. Freedom of Information Act
b. Price-Anderson Act
c. Civil Rights Act of 1964
d. Administrative Procedure Act
(1983), Chief Justice _________ stated, “ The Constitution sought to divide the
delegated powers of the new federal government into three defined categories,
legislative, executive and judicial, to assure, as nearly as possible, that each
Branch of government would confine itself to its assigned responsibility. The
hydraulic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must be
resisted.”
a. Warren Burger
b. Earl Warren
c. William Rehnquist
d. John Roberts
proliferation of Government, State and Federal, would amaze the Framers [of the
Constitution], and the administrative state with its reams of regulations would
leave them rubbing their eyes.”
a. John Paul Stevens
b. William Rehnquist
c. Antonin Scalia
d. David Souter
administrative state can be found publicly in __________________________.
a. The United States Code Annotated
b. The Code of Federal Regulations
c. The Official Compilation Rules & Regulations
d. none of the above
to independent agencies include _________________.
a. checks and balances and separation of powers
b. checks and balances and representative government
c. separation of powers and representative government
d. separation of powers and political authoritarianism
policy requiring drug tests for persons seeking positions as customs inspectors.
a. Field v. Clark (1892)
b. National Treasury Employees Union v. Von Raab (1989)
c. J. W. Hampton & Company v. United States (1928)
d. none of the above
grant of power to the Court to _________________.
a. determine the Court’s own rules of procedure
b. determine the Court’s own docket
c. determine the Court’s structure
d. none of the above
Corporation v. United States (1935), the Court struck down provisions of the
_______________on grounds of nondelegability.
a. Ethics in Government Act
b. Budget and Accounting Act
c. Federal Power Act
d. National Industrial Recovery Act
which established the Office of Price Administration and vested it with wide
latitude to control prices and rents.
a. Yakus v. United States (1944)
b. Wayman v. Southard (1825)
c. Panama Refining Company v. Ryan (1935)
d. none of the above
authorized construction of the Hoover Dam, and gave the Secretary of the Interior
almost unlimited discretion to allocate the water of the Colorado River among
seven states.
a. Yakus v. United States (1944)
b. Arizona v. California (1963)
c. American Textile Manufacturers Institute v. Donovan (1981)