Term
| formalist ones views of separation of powers |
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Definition
| “Strong” views of separation of powers are formalist ones that require strict and technical separation |
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Term
| functionalist views of separation of powers |
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Definition
| look more forgivingly at whether the core power of a branch is being encroached upon unduly, and allow encroachments that the formalists would not. |
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Term
| DELGATION OF POWERS BY CONGRESS |
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Definition
| Congress can delegate quasi-legislative power to executive agencies, so long as the delegation contains an “intelligible principle” that constrains the agency’s discretion and provides a reviewing court with a way of knowing whether or not the agency is acting consistently with Congress’s desire |
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Term
| HOW MUCH GUIDANCE IS NEEDED TO DELAGTE POWERS? |
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Definition
| The more power is delegated, the more guidance must be given, up to “substantial guidance” for economy-wide legislation. |
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Term
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Definition
he Court rejected a non-delegation challenge to the Clean Air Act’s requirement that the agency regulate air pollution by imposing standards “requisite to protect public health” with “an adequate margin of safety.”
the doctrine required that the statute itself, rather than subsequent agency action, contain the requisite intelligible principle. |
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Term
| The Supreme Court has not used the non-delegation doctrine to strike down any legislation since the 1930s |
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Definition
| Court to narrowly interpret statutes to avoid constitutional problems, even if that means rejecting a more intuitive interpretation of the statute. |
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Term
| To find the “intelligible principle |
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Definition
| court may have to look to external sources such as statutory structure and legislative intent. |
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Term
| The delegation of final judicial authority to non-Article III decision makers |
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Definition
-potentially a violation of the separation of powers
-when such entities get the last word on matters of law and fact; Article III review, even if deferential, generally suffices to save the constitutionality of any structure. |
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Term
| public rights” can be handled completely by agency adjudicators |
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Definition
| Public-right cases are cases in which an agency-as-regulator is a party, or cases between private parties that arise entirely out of the workings of a regulatory scheme. |
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Term
| The bicameralism and presentment requirement is viewed strictly |
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Definition
| If an action is “legislative” in nature, it must be approved in identical form in both houses and approved by the President (or vetoed but then approved by 2/3 majorities in each house |
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Term
| INS v. Chadha, to be legislative in nature an action must have the “purpose and effect of altering . . . legal rights, duties and relations. |
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Definition
| Executive action that seemingly meets this definition, but which is pursuant to a congressional delegation of power with an intelligible principle, is still OK though. |
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Term
| Laws that give Congress the ability to efficiently review (and, if it wants, to overturn) rules are constitutional, so long as they require bicameralism and presentment to overturn the rule. The same is true of a law that would require |
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Definition
| Congress to affirm a rule before the rule could take effec |
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Term
| Giving some other part of the executive branch the power to affect passage is not a problem either |
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Definition
| because that can be considered just another part of the rulemaking process, which is OK because it stays solely in the executive branch. |
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Term
| Agencies have two main limits on their ability to perform searches and inspections, etc. |
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Definition
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Term
| two main limits on their ability to perform searches and inspections, |
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Definition
First, Congress must authorize the agency to do so, and Congress usually limits and specifically defines the bounds of an agency’s search powers
Second, the Fourth Amendment requires that searches be reasonable and that warrants (where they are required) be specific and based on probable cause |
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Term
| WHEN ARENT WARRANTS REQUIRED? |
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Definition
| where there is no expectation of privacy, or where there is consent to a search or seizure, among other exceptions. They are also not required for searches of “pervasively regulated” entities if the search has an important governmental purpose and the agency’s process offers other protections |
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Term
| For a more specific search (such as one arising out of a specific complaint), |
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Definition
| an agency must generally meet the Fourth Amendment’s probable cause and specificity requirements, and the warrant will be limited to that which is complained about |
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Term
| REMEDIES FOR AN UNCONSTITUTIONAL SEARCH OR SEIZURE BY AN AGENCY ARE THE SAME AS IN OTHER CONTEXTS |
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Definition
Bivens actions or the application of the exclusionary rule. Is very rare for the exclusionary rule to be used in the administrative, as opposed to criminal, context.
Use of exclusion must be an effective deterrent, and the violation must have been quite egregious |
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