Law Commons^™

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Amicus Brief In Sec V. Jarkesy On Original Public Meaning Of Article Ii & Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

In holding that the SEC’s administrative law judges’ protections against removal were unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.

To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

Scholarly Works

Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference - American Revival: Citizenship & Virtue

No abstract provided.

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

Comments On Executive Ruilemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Brexit Bt Susan Rose-Ackerman, Nicholas Almendares

Chicago-Kent Law Review

No abstract provided.

Administrative Law: Whose Job Is It Anyway?, Allison Mather

Pepperdine Law Review

This Note examines the current state of judicial deference to administrative agencies and suggests modifying the doctrine to better comport with the Constitution. It examines the history of administrative agencies and the rise of judicial deference. The Note explores the present-day applications of judicial deference and analyzes whether the current doctrine is consistent with both its initial underlying policies and the Constitution. Ultimately, judicial deference to administrative agencies raises serious separation of powers concerns and should be modified to remain faithful to the nation’s founding principles.

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

Dimensions Of Delegation, Cary Coglianese

All Faculty Scholarship

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

League Of Conservation Voters V. Trump, Adam W. Johnson Mr.

Public Land & Resources Law Review

A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram

Journal of the National Association of Administrative Law Judiciary

The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

Administrative Adjudication And Adjudicators, Jack M. Beermann

Faculty Scholarship

The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators …

The Semi-Autonomous Administrative State, Cary Coglianese

All Faculty Scholarship

Conflicting views about presidential control of the administrative state have too long been characterized in terms of a debate over agency independence. But the term “independent” when used to describe administrative agencies carries with it the baggage of an unhelpful and unrealistic dichotomy: administrative agencies that are (or should be) subservient to presidential control versus those that are (or should be) entirely free from such influence. No agency fits into either category. This essay proposes reorienting the debate over presidential control around agency “autonomy,” which better conveys that the key issue is a matter of degree. Contrary to some proponents …

Blank Checks: An Analysis Of Emergency Actions Warranting Unilateral Executive Action, Megan E. Ball

Notre Dame Law Review

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor’s suit. Specifically, this Note analyzes the federal government’s approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA’s reliance upon President Obama’s executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the decision in Mexichem Fluor v. …

Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett

Scholarly Works

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

This chapter discusses the separation of powers. The point about traditions, or shared social norms, is a central one for this chapter. At a time of growing pessimism about the fate of democracy worldwide, adherence to norms of political behaviour may have an importance transcending formal provisions for the allocation of governmental power. As such, this chapter first presents a brief account of ‘separation of powers’ under American presidentialism; then the contrasting system of Westminster parliamentarianism; third, the increasingly prevalent mixed regimes, often semi-presidential, that can be described as ‘constrained parliamentarism’; and, finally, international institutions. As the chapter shows, in …

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped …

Neither Fish Nor Fowl: The Separation Of Powers And The Office Of Administrative Hearings, Ann E. Cohen, Elise Larson

Mitchell Hamline Law Review

No abstract provided.