Separation of Powers and the Nature of Remand
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Administrative and Public Law Section of the State Bar of Texas Austin Bar Association Administrative Law Section The University of Texas School of Law Presented: 2009 Advanced Texas Administrative Law Seminar August 27-28, 2009 Austin, TX Separation of Powers and the Nature of Remand Kristofer S. Monson Author contact information: Kristofer S. Monson Office of the Attorney General Austin, TX [email protected] 512-936-1820 Continuing Legal Education • 512-475-6700 • www.utcle.org This paper highlights some of the structural issues raised in a recent series of interrelated decisions issued by the Third Court of Appeals. In the leading decision of the three, Motor Vehicle Board of the Texas Department of Transportation v. Freightliner Corp., the Court of Appeals opined that when a court issues a ruling in a suit for judicial review, its judgment “removes” the issue from the jurisdiction of the administrative agency.1 This is a bold proposition: that the act of judicial review transfers responsibility for administrative decision making from the executive department to the judicial department. This paper will briefly recite some of the background principles governing which types of administrative decision belong to which department of government and suggest a few ways to think about separation of powers issues in the context of judicial review. I. The Separation of Powers is an Important Issue in Administrative Law The most famous separation-of-powers issue in administrative law is the divide between administrative rulemaking and legislative authority. The United States Supreme Court has—albeit extremely rarely—struck down legislation authorizing administrative bodies to make particular determinations because the administrative body would be making policy as a general matter.2 Thus, to avoid a separation-of-powers issue, authorizing legislation must contain standards that are sufficiently specific that the agency is applying its expertise to a set of defined criteria, rather than making policy itself.3 An outgrowth of this doctrine is federal law’s Chevron doctrine, under which the courts (at least in formal rulemaking circumstances) will (1) look to a statute to see if it is unambiguous and then (2) if it is ambiguous, defer to the agency’s interpretation so long as it falls within the scope of the statute.4 The courts do not defer to such interpretations, however, if the decisions are not being made by a single decision-maker through a uniform decision-making process.5 These two intertwined doctrines—non-delegation and Chevron—focus on two variables: the identity of the decisionmaker, and the nature of the decision made. Non- delegation makes sure that the Legislature is not allowing administrative agencies to make policy decisions in place of the elected members of Congress, and as a result preserves political accountability. Chevron, in turn, makes sure that when Congress 1 255 S.W.3d 356 (Tex. App.—Austin 2008, pet. filed) 2 E.g., A.L.A. Schechter Poutlry Corp. v. United States, 295 U.S. 4955 (1935). 3 E.g., J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (requiring Congress to set out an “intelligible principle” to govern agency action). 4 E.g., Nat’l Cable & Telecommunications Ass’n v. Brand X Internet, 545 U.S. 967, 980-984 (2005) (applying Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66 (1984)). 5 United States v. Mead Corp., 533 U.S. 218, 227-28 (2001). elects to use the administrative rule making process its choice to allow the executive branch to decide federal policy is not impeded by the interference of the courts. Together, these two doctrines form bookends on the scope of agency power. An agency can only make particular delegated determinations, but when it does so under the unambiguous terms of a governing statute it exercises independent, executive-branch authority. III. The Texas Constitution and Common Law. A. The Common Law Presumption Against Judicial Review. The starting point for any treatment of Texas law governing judicial review is that there is a presumption against it.6 Unless a plaintiff has a vested property right, or a separate constitutional complaint, the courts have judicial-review authority only when authorized by statute.7 In the case of constitutional challenges to an agency’s authorizing statute, the courts have traditionally held that suit is available directly under the Constitution, because the agency’s authority to interpret its own authorizing statute does not extend to determining the statute’s constitutionality.8 But a corollary to this presumption is that a constitutional challenge against a matter within an agency’s exclusive jurisdiction must be resolved at the agency before the courts exercise jurisdiction. This presumption against judicial review goes hand-in-hand with sovereign immunity from suit. Sovereign immunity from suit bars all lawsuits either brought against state entities or for which the remedy would effectively control state actions, absent either a statutory or constitutional cause of action.9 Statutory judicial-review mechanisms thus effect a waiver of sovereign immunity, limited by the provisions of the 10 statute. 6 Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001) 7 Id. (“Texas law recognizes no right to judicial review of an administrative order unless (1) a statute provides the right, (2) the order adversely affects a vested property right, or (3) the order otherwise violates some constitutional right.”) (citing Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000) and Stone v. Tex. Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967)). 8 Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992) (recognizing that (1) exhaustion of remedies is required in non-constitutional cases and (2) constitutional cases where agency has been given exclusive jurisdiction by Legislature). 9 E.g., In re SW Bell Telephone Co., L.P., 235 S.W.3d 619, 624-25 (Tex. 2007) (orig. proceeding). 10 E.g., Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 123 (Tex. App.—Austin 2007, no pet.); but see Sefzik v. Tex. Dep’t of Transp., 267 S.W.3d 127, 134 (Tex. App.—Corpus Christi 2008, pet. filed). Sefzik is based on the presupposition that there is a general exception to sovereign immunity for suits seeking declaratory relief. The Supreme Court appears to have rejected the proposition that suits for declaratory relief are generally available against government entity and officials in City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009). .