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Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Faculty Scholarship
To some, the very idea of the constitutional law of the administrative state is an oxymoron. On this view, core features of the national administrative state — broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only removable on narrow grounds — are fundamentally at odds with both constitutional separation of powers principles and due process. To others, no such conflict between contemporary administrative governance and the Constitution exists, and assertions of the administrative state’s unconstitutionality rest on basic misunderstandings of what separation of powers and …
Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger
Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger
Faculty Scholarship
The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered …