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Full-Text Articles in Law
Delegation, Administration, And Improvisation, Kevin Arlyck
Delegation, Administration, And Improvisation, Kevin Arlyck
Notre Dame Law Review
Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …
Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh
Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh
Notre Dame Law Review
Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …
Updating The Federal Agency Enforcement Playbook, Aiste Zalepuga
Updating The Federal Agency Enforcement Playbook, Aiste Zalepuga
Notre Dame Law Review
This Note explores the relationship between equitable remedies and agency enforcement powers, arguing that federal courts are increasingly distinguishing between law and equity in remedies to impose limits on agency enforcement powers. Part I tracks factors driving the FTC’s broad reading of section 13(b) until AMG Capital. Part II analyzes developments in the SEC with a focus on Liu and suggest that federal courts are returning to traditional categories of equitable remedies. Part III concludes with two trends in determining the scope of agency enforcement powers. First, federal courts are requiring agencies to show that their use of equitable …
How Federal Agencies Sue On Victims' Behalf: Parens Patriae, Equitable Remedies, And Procedure, Collin Berger
How Federal Agencies Sue On Victims' Behalf: Parens Patriae, Equitable Remedies, And Procedure, Collin Berger
Notre Dame Law Review
This Note adds to the literature about federal agency actions on victims’ behalf by incorporating recent cases and comparing cases about courts’ power to parens patriae cases. Part I describes these two lines of cases: the parens patriae cases that define what states can do in federal court, and the cases on courts’ equitable powers in agency suits through Kokesh, Liu, and AMG Capital Management. Part II then considers potential practical issues with current agency processes, including a simple empirical analysis of the SEC’s records and how they might reflect the agency’s internal strategy and deadlines. Part III considers how …