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Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Faculty Scholarship
In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of …
The Roberts Court And Administrative Law, Gillian E. Metzger
The Roberts Court And Administrative Law, Gillian E. Metzger
Faculty Scholarship
Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …