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Full-Text Articles in Law
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Faculty Scholarship
The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …
Administrative Harms, Philip A. Hamburger
Administrative Harms, Philip A. Hamburger
Faculty Scholarship
Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.