Law Commons^™

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the …

The Turn Toward Congress In Administrative Law, Jack M. Beermann

Faculty Scholarship

Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for …

Congressional Administration, Jack M. Beermann

Faculty Scholarship

In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …

A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions …