TO: Head of the State’s Department of Air Quality
FROM: Jane Doe
DATE: November 24, 2020
SUBJECT: Administrative Discretion
The Supreme Court uses the Chevron’s deferential framework to rule on an agency’s application of its discretion and statutory authority. An agency’s interpretation of a statute is subject to the following two-step process. First, the applicable court must review the statute’s interpretation against the intent made by Congress (Barnett & Walker, 2018). If the intent is unambiguous, the agency must carry out the strictly express intent of Congress. On the other hand, ambiguous intent provided by Congress are common. Therefore, the federal court must decide is the agency’s interpretation of the statute is based on a permissible construction. The second step pertains to what the federal court should do based on the agency’s reasonable construction (Sharkey, 2017). If Congress was explicit in its decision, the statutes are binding on the federal court. On the other hand, a federal court can replace its statutory interpretation to supersede the agency’s construction if Congress’s decision was implicit.
Sources of Law that Might Constrain a State Agency’s Actions
There are four sources of law that might constrain a state agency’s actions. First, the US Constitution is the supreme law of the territory and everything is entails is binding (Panevina & Galiullina, 2016) . All the other sources of law draw from the Constitution, but cannot override it. Apart from expressing the fundamental rights and freedoms every US citizen is entitled to, the Constitution also establishes the rules by which the government and its agency must abide. Secondly, federal and state statutes, also known as statutory law are passed through a legislative session and published in the United States Code (Parolari, 2018). The Clean Air Act (CAA) is an example of a statutory law passed by Congress that all states must abide. State laws, however, are applicable only within a given state. However, in case of conflicts, federal statutes have the power to override state laws.
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Thirdly, administrative regulations issued by federal and state agencies, such as the contested regulations issued by the Environmental Protection Agencies on the classifications of different air pollutants and the regulations that limit emissions. Lastly, case law, or common law, are issued by the courts to provide clarifications when federal and state statutes and administrative regulations are ambiguous (Black et al., 2016). Case law is applicable to specific contexts and are made when new issues come up. Otherwise, the courts will make rulings on the principle of stare decisis.
Accountability Institutions that might Impact Agency Discretion
The first accountability institution are the state and federal courts. Through common law, these institutions might override and limit an agency’s discretion on how it should regulate emissions. The only condition for these institutions to have the authority is if Congress was ambiguous in its intent when authorizing the creation of the agency. Therefore, the interpretation of the statutes by the agency can be contested by external stakeholders through the judicial process. The second accountability institution is Congress. An agency’s mission and administrative discretion should be within the limits of Congress’s intent. If the agency is evaluated to violate its discretion, Congress might create a subcommittee that will hold hearings on the agency’s enforcement actions. The hearings might also be a standard process explicitly required by Congress when it created the agency and issued administrative discretion.
Procedural Constraints that need to be Considered
The first constraint that need to be considered is time. When exercising administrative discretion, agency can follow the procedure for informal rulemaking, where the proposed rules, policies, and regulations are passed to the public and other stakeholders for review. Through written comments, the agency will take the feedback and decide on the final policy. This process takes time and resources to collect, analyse, and synthesize the comments. On the other hand, if the agency creates a regulation through the formal process, it is strictly exercising its administrative discretion. Therefore, its actions will be constrained under the procedural requirements set by the Administrative Procedure Act. For instance, the Act requires that the agency, as a proponent for a regulation, carry the burden of proof that all steps have been complied with. However, this process is both costly and takes time to finalize the regulations.
Accountability Institutions that should be taken into Consideration
Federal and state courts should be taken into consideration, especially when the agency’s discretion is subject to interpretation since Congress’ intent is ambiguous. For instance, the agency’s interpretation of its discretion should be reasonable to its statutory construction. As a result, any conflict that arises will increase the likelihood of the federal and state courts ruling in the agency’s favor.
Technical and Political Rationalities
However, the agency should always remember that its administrative discretion is not explicit authorization from Congress. Instead, it is a permit to apply the agency’s expertise. Therefore, the line between politics and expertise is thin as an agency exercising its discretion is thin and is highly likely to create tensions. When agencies apply their technical expertise in decision and policymaking processes, they affect who gets the resources, when, and how. Furthermore, when the agency approves an organization’s actions, it signals to the rest about the acceptable code of conduct, thus driving actions to a particular direction.
In other words, the exercise of administrative discretion is legitimized by the virtual guarantee that its application of expertise is free from political influence. The tension, therefore, comes from the most common rationale in support of the Chevron Doctrine: there is nothing wrong with the presidential administration of executive branch agencies, which are politically motivated (Hill & Lynn, 2015). Therefore, the agency’s politically inflected discretion will free it from political pressures of its opponents. This is an exposition of an older rivalry between expertise and politics.
References
Barnett, K., & Walker, C. J. (2017). Chevron Step Two's Domain. Notre Dame L. Rev. , 93 , 1441.
Black, R. C., Owens, R. J., & Brookhart, J. L. (2016). We Are the World: The US Supreme Court's Use of Foreign Sources of Law. British Journal of Political Science , 46 (4), 891.
Hill, C. J., & Lynn Jr, L. E. (2015). Public management: Thinking and acting in three dimensions . CQ Press.
Panevina, A., & Galiullina, E. (2016). Sources of law in the US. Humanities in the 21st century: scientific problems and searching for effective humanist technologies [L 21] .
Parolari, S. (2018). From a formal to a substantial approach: sources of law and fiscal federalism. In Comparing Fiscal Federalism (pp. 22-39). Brill Nijhoff.
Sharkey, C. M. (2017). Cutting in on the Chevron Two-Step. Fordham L. Rev. , 86 , 2359.
