Law Commons^™

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Joel Hood

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are …

The Paradox Of Parliamentary Supremacy: Delegation, Democracy And Dictatorship In Germany And France, 1920s-1950s, Peter Lindseth

Peter L. Lindseth

No abstract provided.

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Toward A Less Adversarial Relationship Between Chevron And Gardner, James Ridgway

James D. Ridgway

In twenty-five years of judicial review of veterans benefits claims, the courts have failed to reconcile the interpretive canons of veteran friendliness and deference to the agency’s policy making role. This article argues that the courts must develop a coherent relationship between these doctrines by recognizing that each are core values of veterans law. First, it explores the history and nature of these two doctrines that are central to veterans law. Then, It considers how the canons are situated in the spectrum of fact- and value-based judicial review. Ultimately, separation-of-powers principles and the legislative history of the Veterans Judicial Review …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

North Carolina’S Superintendent Of Public Instruction: Defining A Constitutional Office, Andrew P. Owens

Andrew P. Owens

In 2009 a superior court case determined the fate of the Governor’s initiative to streamline education leadership by promoting a State Board of Education member while greatly reducing the Superintendent of Public Instruction’s powers. The judge’s decision in favor of Superintendent Atkinson turned on “the inherent constitutional authority” of her office; yet no one really knows what authority is inherent to the office, where that authority derives, or how to go about analyzing the office’s constitutional role. In short: what does it mean to be the Superintendent of Public Instruction? This paper explains the origins and meaning of the Superintendent …

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

Principles-Based Securities Regulation In The Wake Of The Global Financial Crisis, Cristie L. Ford

Cristie L. Ford

This paper seeks to re-examine, and ultimately to restate the case for, principles-based securities regulation in light of the global financial crisis and related developments. Prior to the onset of the crisis, the concept of more principles-based financial regulation was gaining traction in regulatory practice and policy circles, particularly in the United Kingdom and Canada. The crisis of course cast financial regulatory systems internationally, including more principles-based approaches, into severe doubt. This paper argues that principles-based securities regulation as properly understood remains a viable and even necessary policy option, which offers solutions to the real-life and theoretical challenge that the …

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …

The History Of School Trust Lands In Nevada: The No Child Left Behind Act Of 1864, Christopher J. Walker

Christopher J. Walker

This Article details the history of the federal school lands grant program in Nevada - the first federal initiative to support public education in the new state. After providing a brief overview of federal land management history in the West, the Article presents the story of school lands in Nevada - tracing its birth in Congress and at the Nevada Constitutional Convention in 1864; analyzing the changes made by state constitutional amendments and court decisions; exploring Congress's attempts to adapt the program to Nevada's needs in the form of the two-million-acre grant of 1880 and the 30,000-acre exchange of 1926; …