Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Scholarly Works
In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. …
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Scholarly Works
The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.
This Article defends the right of private parties to assert justiciable structural …
Resolving The Alj Quandary, Kent H. Barnett
Resolving The Alj Quandary, Kent H. Barnett
Scholarly Works
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …