Law Commons^™

The Dependent Origins Of Independent Agencies: The Interstate Commerce Commission, The Tenure Of Office Act, And The Rise Of Modern Campaign Finance, Jed Handelsman Shugerman

Faculty Scholarship

Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control.

The modern executive's design of unitary presidential control over most offices, alongside "independent" regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers and ending the Senate's power to protect those officers. …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Immigration Policy And The Rhetoric Of Reform: “Deport Felons, Not Families,” Moncrieffe V. Holder, Children At The Border, And Idle Promises, Terri R. Day, Leticia M. Diaz

Faculty Scholarship

No abstract provided.

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Reverse Nullification And Executive Discretion, Michael T. Morley

Faculty Scholarship

No abstract provided.

Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis

Faculty Scholarship

This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on the ground fact-finding by its consultants, who have usually been academics consulted at the beginning of careers that ever after would be marked by this encounter with the realities of the administrative process. As the mentee of Walter Gellhorn, who directed the remarkable empirical studies of federal agency procedures that underlay the eventual Administrative Procedure Act (“APA”) and who was a member of the ACUS Council from its initiation in 1964 …

The President And The Constitution, Peter L. Strauss

Faculty Scholarship

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.... The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.... With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Presidential Administration And The Traditions Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which emphasize that all relevant interests must be given an opportunity to express their views and agencies must explain their decisions in a public and articulate fashion. In the twentieth century, American administrative law achieved a grand synthesis of these two traditions, with the result that …