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Full-Text Articles in Law

The Life Of Administrative Democracy, Joshua Ulan Galperin Apr 2020

The Life Of Administrative Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected ...


The Life Of Administrative Democracy, Joshua Galperin Jan 2020

The Life Of Administrative Democracy, Joshua Galperin

Articles

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected ...


Reconstructing An Administrative Republic, Jeffrey A. Pojanowski Jan 2018

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid ...


Category Errors And Executive Power, Jonathan Adler Jan 2016

Category Errors And Executive Power, Jonathan Adler

Faculty Publications

In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and their potential ...


Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger Jan 2015

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 ...


Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger Jan 2015

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

Faculty Scholarship

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss’s most germinal writings, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies. Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these ...


Avoiding Independent Agency Armageddon, Kent H. Barnett May 2012

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for ...


Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese Feb 2010

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

Faculty Scholarship at Penn Law

No abstract provided.


Deconstructing Nondelegation, Cynthia R. Farina Jan 2010

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly ...


Regulatory Adjudication, Marcia L. Mccormick Jan 2010

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the ...


The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss Jan 2010

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.


On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss Jan 2010

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

The Supreme Court’s decision last June in Free Enterprise Fund v. Public Company Accounting Oversight Board is torn between general principle and particularity in considering important questions of separation of powers in American constitutional law – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey’s Executor v. United States. The Supreme Court has a long history of reaching sensible results in its ...


The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo Jan 1997

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

Faculty Scholarship at Penn Law

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such ...


Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts Jan 1993

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


The Concept Of Independence In Public Law, Brian C. Murchison Jan 1992

The Concept Of Independence In Public Law, Brian C. Murchison

Scholarly Articles

None available.


The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen May 1991

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

Scholarly Works

A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting ...


Retaining The Rule Of Law In A Chevron World, Michael A. Fitts Jan 1990

Retaining The Rule Of Law In A Chevron World, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil Jan 1986

The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil

Faculty Publications

No abstract provided.