On May 3, 1996, then-Secretary of Agriculture Glickman began soliciting public comments on whether a compelling public interest existed to justify the Compact.[1] On August 28, he published a short finding that such an interest existed in the Federal Register, together with a press release asserting authority to continue to supervise the Commission and to revoke its authority to operate if he later found revocation to be in the public interest.[2] The Milk Industry Foundation, a trade association of milk processors and distributors, sued the Secretary, claiming both that Congress’ direction to the Secretary was an unconstitutional delegation of legislative power and that the Secretary’s finding violated the Administrative Procedure Act (APA).
In Milk Industry Foundation v. Glickman,[3] the District Court for the District of Columbia denied the Foundation’s motion for a preliminary injunction, which would have barred the Commission from operating until the end of the trial. Judge Friedman concluded that the Foundation was unlikely to show successfully that Congress’ direction to the Secretary was unconstitutional;[4] moreover, although the court found the Foundation more likely to succeed on its claim under the APA,[5] the court concluded the Foundation had not successfully shown any threatened irreparable injury of the sort required to justify a preliminary injunction.[6]
Concerned by the court’s apparent receptivity
to the plaintiffs’ APA claims, the Secretary requested that the court stay its proceedings so that the Department
could reconsider the issue.[7]
The court did so, and on March 20, 1997, the Secretary issued a new, longer finding that set out the Department’s reasoning in detail and
addressed the policy issues raised by supporters and opponents of the Compact.[8]
This time, the Secretary expressed at length the arguments in favor of price regulation by the
Commission, and concluded on balance that a compelling public interest did
support the Commission’s operations.[9]
Judge
Friedman accepted the Secretary’s reasoning, and granted summary judgment for the Secretary and the Commission.[10]
On appeal, the Court of Appeals for the D.C. Circuit affirmed.[11]
Like Judge Friedman, Chief Judge Edwards writing for the Court of Appeals found little merit in the Foundation’s constitutional
arguments. Because Congress had provided an intelligible principle to guide the Secretary’s
discretion, its action raised no constitutional concerns about delegation of that power.[12]
The Court then held that the Secretary’s
finding was subject to judicial review under the APA, and concluded that the finding
was reasonably supported by the following key factors: (1) a principal objective of the Compact is to preserve family farms in the Compact region; (2) family dairy farmers in the region are under severe financial stress; (3) the Compact will effectively preserve family dairy farms during the transitional period pending reform of the national scheme for regulating milk prices . . . .[13]
Judge Rogers wrote a concurring opinion, which Judge Henderson joined.[14] She emphasized the importance of the Interstate Compacts Clause to the case in light of the Foundation’s non-delegation argument:
[I]t is clear that the process of consent in the instant case fully realized the purpose of the Compact Clause. The New England states appropriately sought congressional consent to the dairy compact, which will affect the federal regulation of milk prices pursuant to the Agricultural Marketing Agreement Act of 1937. They obtained that consent from Congress and its delegate, the Secretary of Agriculture. Both Congress and the Secretary were capable of vindicating the federal power protected by the Compact Clause . . . .[15]
[1]61 Fed. Reg. 19,904 (1996).
[2]61 Fed. Reg. 44,290, 44,290–91 (1996).
[3]949 F. Supp. 882 (D.D.C. 1996). The Commission intervened as a defendant in this case.
[4]Id. at 889–92.
[5]Id. at 892–95.
[6]Id. at 895–97.
[7]Milk Indus. Foundation v. Glickman, 967 F. Supp. 564, 565 (D.D.C. 1997)
[8]62 Fed. Reg. 14,879 (1997).
[9]Id. Secretary Glickman’s March 20 finding contained language suggesting that his decision to find a compelling public interest in the Commission’s existence depended on his asserted power to revoke that finding if conditions in the New England regional fluid milk market changed. A week later, he issued a clarification; although he continued to assert that power, he did not wish to make his finding of a compelling public interest contingent on that assertion. Milk Indus. Foundation, 967 F.Supp. at 567.
[10]Milk Indus. Foundation, 967 F.Supp. at 571.
[11]Milk Indus. Foundation v. Glickman, 132 F.3d 1467 (D.C. Cir. 1998).
[12]Id. at 1473–75.
[13]Id. at 1477–78. Judge Edwards, like Judge Friedman, doubted the Secretary’s claim of power to revoke authorization for the Compact if economic circumstances changed. See id. at 1478; Milk Indus. Foundation, 967 F. Supp. at 570 n.6.
[14]Milk Industry Foundation, 132 F.3d at 1478–79 (Rogers, J., concurring).
[15]Id. at 1479.