Law Commons^™

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton

Public Land & Resources Law Review

The Ninth Circuit Court of Appeals affirmed the District Court of Arizona’s decision to deny a proposed mining plan becuase the operations exceeded the boundaries of a valid mining claim. The issue the court addressed is whether a permanent occupancy of waste rock and tailings on land, absent the discovery of valuable minerals, is a reasonable use related to mining activities. The Ninth Circuit decision effectively prevented mining companies from amending the 1872 Mining Law on the administrative record. Motions for a rehearing and a rehearing en banc were denied.

Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov

West Virginia Law Review

Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

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 …

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 …

Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf

Catholic University Law Review

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …

The Return Of A Judicial Artifact? How The Supreme Court Could Examine The Question Of The Nondelegation Doctrine’S Place In Future Cases, Dalton Davis

Helms School of Government Undergraduate Law Review

No abstract provided.

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.

The Religious Freedom Restoration Act, Trinity Lutheran, And Trumpism: Codifying Fiction With Administrative Gaslighting, Robin S. Maril

Northwestern Journal of Law & Social Policy

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years.

Despite …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Administrative Balance, David Russell

Arkansas Law Review

Two of the most discussed administrative-law theories in contemporary discussion are executive preemption and big waiver. Executive preemption is the idea that agency regulations preempt state law by extension of the federal statutes the agencies are charged with enforcing. Big waiver is the idea that Congress delegates, to administrative agencies, the power to waive statutory provisions. The constitutional questions raised by executive preemption and big waiver can be put in the following terms. Executive preemption raises constitutional issues as regulatory agencies go farther and farther away from the “clear statement” of a given statute. Thus, one wonders whether agencies are …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Texas A&M Law Review

The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …

The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Administrative Constitutionalism And The Unity Of Public Law, Matthew Lewans

Osgoode Hall Law Journal

Public law scholarship in the common law tradition often aims at elucidating a connection between law and constitutional values like equality, due process, and the rule of law. However, in their quest to reveal the morality of public law, common lawyers often focus their attention on judicial interpretations of constitutional values to the exclusion of other sources of constitutional jurisprudence. The author argues that the traditional fascination with courts as the primary or exclusive arbiters of constitutional values should be tempered and supplemented by recognizing the valuable contributions of administrative officials who interpret and enforce constitutional norms when exercising statutorily …

Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan

Maine Law Review

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to challenge …

The Intelligible Principle: How It Briefly Lived, Why It Died, And Why It Desperately Needs Revival In Today's Administrative State, Meaghan Dunigan

St. John's Law Review

(Excerpt)

This Note addresses the flaws in the current intelligible principle standard and proposes a new three-part standard that would better revitalize the intelligible principle as it was first articulated almost a century ago. This Note concedes that while legislative delegation in any form is a violation of the original meaning of the nondelegation doctrine, our society and the growth of administrative agencies removed any chance of having our laws created solely by Congress. What can happen, and what this Note proposes, is for the Supreme Court to adopt a new intelligible principle standard that scales back the amount of …

The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian

Journal of the National Association of Administrative Law Judiciary

While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.

The Presidential Statutory Stretch And The Rule Of Law, Peter M. Shane

University of Colorado Law Review

No abstract provided.

Optimal Abuse Of Power, Adrian Vermeule

Northwestern University Law Review

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule—misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing …

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …

Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker

West Virginia Law Review

No abstract provided.

Resolving The Alj Quandary, Kent Barnett

Journal of the National Association of Administrative Law Judiciary

Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …

The Active Administrative Law Judge: Is There Harm In An Alj Asking?, Allen E. Shoenberger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

This Alj Said Too Much: Prison Hearing Officer Charges Michigan Department Of Corrections With First Amendment Violations And Race Discrimination, Carolyn Amadon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

October Term, 1999: The Supreme Court's Last Term Of The Twentieth Century, Increasing Deference To Administrative Agencies , Allen E. Shoenberger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.