Congress passes legislation allowing the president to set wage and price controls throughout the US. There was a time limit, but really no other limits.
The meatcutters challeng this: there must be some standards. Congress says yeah, he can't be "grossly inequitable." Meatcutters think this is way too vague.
So it's just a district court case, but it's so extreme that it is well known nevertheless.
Anyway, the EPA picks 8. Probably on the basis of cost-benefit analysis. Are they allowed to do this? American Trucking wants them to, but that's not their charter.
So on a textual basis, perhaps they have no such mandate. And if congress didn't say "cost benefit" here, then maybe they didn't mean it. Actually both sides have a textual argument, but the court takes the direct route: it's not mentioned here, therefore it's not wanted here. It's not allowed.
But, in a sense, of course everybody knows they have to be doing cost benefit analysis in the background, even if it's not explicit.
If we don't allow it, then we get the absurd result of decisions being made without any economic input.
Accountability is important to the constitution as well, and cost-benefit makes reasoning more transparent, and therefore makes review possible. And we want congress to be accountable as well-- it is delegating vast discretion to the EPA. If EPA has to explain the ingredients in the decision, people who are unhappy can go to congress and petition for change. And even if cost benefit does nothing for the rest of us, it at least requires the agency to do some responsible analysis. If they don't have to show their work, they might not do any work.
So why might we not want this? The analysis is time-consuming and expensive. (so what if the agency finds it inconvenient to explain itself and follow rules?) Still, it's possible to have things that are just too expensive: environmental impact statements, for example. Additionally, the cost side is monetary, but the benefit side might be intangible or abstract. Part of the benefit, for example, of reducing particulate matter in the air, is that the horizon will move farther away. How many dollars is that worth? What is the benefit of 10K fewer cases of asthma?
What else is wrong with cost benefit? Well, since you can't really quantify the benefit, it will all turn out to be a farce. Agencies will just manufacture benefits to justify whatever they want. And do we want the agencies to be accountable? They can't deliver perfect health, after all. Maye the public should be at least a little bit in the dark about the value of human life: they'll always want to spend to protect it. So, for example, about 1K people an hour die of starvation. So we don't spend too much on it in practice, but if an agency writes down a number, it will always seem way too small.
So, is delegation a good thing or a bad thing? Clearly there has to be *some* delegation-- no debate over that. But should there be some limits? Some states allow varying degrees (FL, for example, disfavors it). But at the federal level, almost anything can be delegated.
Why is this a good thing? On a textual level, all legislative power shall be vested in the congress. Maybe this means no delegation whatsoever. Or maybe the constitution is silent on the issue. What did the founders say? Basically nothing-- it wasn't an issue for them: the country was completely different, and nobody could have anticipated a government that spent $100K/second. Not much precedent, either: after court-packing, the court never struck down delegation. (previously: Schecter and Hot Oil). Every so often an individual concurring or dissenting opinion will mention that maybe delegation is making the justice slightly nervois. Overall, though, delegation gets upheld, so precedent favors delegation.
But maybe (Geo-Tech) we don't want congress making all these decisions, since they're accountable to the people, and the people aren't always in the right. And perhaps the point is moot: even if we said all policy decisions had to be made in congress, they'll just delegate it to their staffs. And there will be stalemate, because iterest groups will just give us deadlock (as in Mortier), and congress will just punt and we'll be left with confusion. The legislature will not make the decision, in other words: you can tell them they can't delegate, but somehow they will do it anyway. Agencies have good procedures, expertise, etc.
On the other side, maybe the agencies are getting way too powerful. Rebuttal: no, because congress controls their budget, and the president orders them what to do, and their acts are subject to review b ythe courts, and they're peopled by dedicated public servants, not would-be tyrants. And in a delegation district, like IL, maybe the courts have too much power: every so often, the courts will rear their heads and strike down some delegation statute or another (they just pick and choose, since they can't take them all on). The power to select one statute or another for striking-down is excessive: "too much delegation" just gives the court the ability to arbitrarily strike down whatever legislation they want.
OK, so contra delegation. All legislative powers are in the legislature. Art II § 1 says the executive power (not the legislative, not the policy-making power) is in the president. And the president shall take care to FAITHFULLY EXECUTE (not make) the law. Also, the guarantee of a republican form of government doesn't mean law by unelected unaccountable agencies. That undermines the whole of the constitution: nobody knows who in the EPA even decided that 8 was the right number. Or whether they are competent or incompetent, or whatever. But this was a decision with a $2-9B impact, in terms of health: that's a lot of money to be allocated by someone unaccountable.
And agencies get captured by the people that they regulate: there is squeezing and pressure on the side (see Sierra Club and Douglas). And legislatures aren't bound to heed whatever data they gather or hearings they have: they are unaccountable. And delegation enables unaccountability in the legislature: they give all the hard decisions to others. One of the reasons we don't have wide-open elections, in other words, is that legislators aren't obliged to make hard policy decisions.
Note that congress still exists, even after it delegates. And maybe interest groups can't easily get to the agencies, but they can lobby congress, and ask congress to call the EPA and threaten their budgets and power. So again, we have congress using power in an unaccountable way: this is all under the table.
But we've got agencies that both make and enforce the law, and that's a pure separation of powers problem. Maybe it's worse: agencies often ajudicte matters of law (at least at an initial level) as well. So instead of having power dispersed between branches that are jealous of one another, we've got a single branch doing it all.
So how are defenses against tyranny doing? Federalism is gone. Elections are untrustworthy. And now separation of powers is eroding.
Finally, if we do have this amount of delegation, somebody just has to review it. And the only ones left are the courts. So it turns out that 90% of some agencies' decisions are reviewed in court (it's about 80% for EPA). This is expensive, confusing, and conducted by a body that's not accountable.
The result: the president nominates the FEC, and the senate confirms. Yay.
Exactly the same thing happens when the feds relinquished control over National airport. It turns out when you delegate power, you still what to control it. Bad for separation of powers.
So the INS says Chadha can stay, but the legislature retains the power to veto the agency's decisions. The majority says legislative vetos are bad: once you delegate power, it's gone. Powell (a moderate) says wait, THIS legislative veto is a violation of due process, but maybe they're not all bad per se. The constitutionality of legislative vetoes is unclear at the moment, overall.
Many states, of course, allow line-item vetoes. WI was a caricature of this for some time.
The court says that as a rule the President gets power over the executive branch, but the FTC is "quasi-legislative and quasi-judicial." The statute creating the FTC says that it should be independent of executive authority (regardless of the fact that it's in the executive branch, so that's confusing). It's created by congress to carry out legilsative policies; congress says it's subject "only to the people." But that's odd, since they're not elected, so it's not as though they are actually accountable to the people-- this is just empty rhetoric. The statute also says FTC is not political, but it carries out legislative policies. Oxymoron. So congress, in short, hasn't really defined FTC's duties very well...
This case bugged Roosevelt more than any of the ones striking down New Deal legislation.
You can be fired for "inefficiency" or "malfeasance" or "neglect." All wholly ambiguous things. The court seems to say that the president can't fire someone, except for cause. So are these guys accountable *at* *all*?
In a way, then, this subdivides the executive branch. This is kind of maybe like a bicameral congress. Perhaps it's good to limit the president's policy a bit. But is congress usurping some of the executive power, then? The court basically says the agency isn't accountable to anyone (well, "the people," but there's no mechanism for making them accountable).
Perhaps we want experts running things, in which sense this is a good idea. But, on the other hand, we don't want dictatorial agencies. These guys might technically be controlled by congress, but that's pretty far removed. So on the bright side, they're independent from the interest groups and lobbyists. Or maybe, more cynically, they are a "headless fourth branch." When you add up all such agencies, there's a huge amount of power in the hands of agencies that are essentially unaccountable.
On the other hand, we also worry about the president having too much power. And this is FDR after all. The president says he's not actually all that mighty. Presidents can hardly accomplish anything-- they can't dictate policy to agencies regardless of whether they are accountable to the president or not. Presidents are accountable to elections, impeachment, congressional legislation and budget-passing, the press, world opinion, and so on. The president can hardly be a menace, in that context.
The president can also rely on separation of powers: this is the executive branch, after all. And if a president is elected on the basis of economic policy, and the agencies are all stacked against him/her, there's stagnation. We want to be able to break that deadlock.
Also, nobody has a contractual right to public power. This is like Marbury in that sense.
The constitution gives the power to nominate, and the senate the power to confirm, top-level appointments (that's about 3K; the other 997K of the executive branch are basic civil servants, whom it is very hard to fire). So in a sense, even if the president can fire the head of an agency, the president can't really control the agency: there are too many other un-firable people in there. And (as we saw in Vallejo) congress can't usurp the power to appoint. The president's power to dismiss is maybe more important than the power to appoint, since if you can't fire someone, you can't control them. So limiting that power is a serious restriction on the power of the president. The founders are split on whether the president should have the power to dismiss.
The president can fire his cabinet, but even that can get you in hot water-- if congress doesn't like it, as was the case with Johnson, there can be impeachment. Congress passed a statute, for example, that the president can't fire a postmaster general without congressional approval. Wilson takes this to court, and the court says 6-3 that this statute is unconstitutional.
And since this case, congress has generally rebuffed the president's ability to fire the heads of independent agencies-- so this case is pretty much still good law.
MacArthur (from MKE!) is doing a little too well in the war, and thinks he can take it all the way to the Chinese border: we have the bomb, after all. Truman suggests that perhaps he should take it easy.
Note that Truman was the guy who-- being president for only a few weeks-- signed off on the original atomic bombings. This maybe affected his thoughts. Anyway, MacArthur publicly questions Truman's character. So Truman has to fire him, and we get the "old soldiers never die, etc." And there were tickertape parades for him, and Truman's star waned greatly: a lame duck condemned in the public eye and facing up a republican congress headed by Robert "Mr Republican" Taft, son of W.H. Taft.
Robert gets the Taft-Hartley law passed: the president can stop unions from striking for 80 days if the strike would affect the national interest. Truman says he'd never use that power.
At that time, the steelworkers' union was the country's most powerful, and they hadn't had a raise in a couple of years, and the war was causing inflation. So they wanted a raise. The companies said fine, if we can raise the price of steel. But the US was under wage and price controls because of the war. That commission came down to a committee, headed by a WI labor law professor. The committee said that the steel companies could pay the wage increase without upping their prices. The companies said, ok no raise. Truman went to the union (he was friends with the union heads, as well as SCOTUS), and asked them please not to do this since there was a war on.
But after 100 days, with no progress, the union said it was strike time. So Truman issues his executive order and siezed the steel mills. Instantly, the mills filed suit, and things went to SCOTUS rather fastly. Prior to the seizure, Truman calls Chief Justice Vincent and says, "well, do you think there would be any troubles if I siezed some steel mills?" Vincent says it would be OK. Not supposed to do that, but maybe that's why Vincent is dissenting here.
The result was that steel wages went so high that US steel mills could no longer compete, and lots of those jobs went overseas.