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Full-Text Articles in Law
"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana
"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana
Faculty Scholarship
Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …
The Turn Toward Congress In Administrative Law, Jack M. Beermann
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 …
On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss
On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss
Faculty Scholarship
At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …
Combating Midnight Regulation, Jack M. Beermann
Combating Midnight Regulation, Jack M. Beermann
Faculty Scholarship
The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. Whatever the reason for midnight regulation, there seems to be a general consensus that something has gone wrong when an outgoing administration takes important action while the incoming administration is essentially waiting to take over. Most late term action is subject to the obvious question of "if this action was so important, why didn't the administration take it in the last seven and three-quarters years or so?" Even though the Constitution leaves the incumbent in office for …
Rulemaking And The American Constitution, Peter L. Strauss
Rulemaking And The American Constitution, Peter L. Strauss
Faculty Scholarship
A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …