Law Commons^™

Written Testimony Of Philip Hackney For The Hearing On Growth Of The Tax-Exempt Sector And The Impact On The American Political Landscape (U.S. House Ways & Means Subcommittee On Oversight, December 13, 2023), Philip Hackney

Testimony

In written testimony before the House Ways & Means Subcommittee on Oversight on December 13, 2023, Professor Hackney emphasized three points about tax-exempt organizations and politics: (1) a diverse nonprofit sector that fosters civic participation and engagement is a gem of the United States -- we should maintain that; (2) the IRS budget for Exempt Organizations continues to NOT be sufficient to ensure the laws are equally and fairly enforced; and (3) there are simple things the IRS could do to enforce the law that it is not doing.

Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit

Faculty Scholarship

Transforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much …

Antipolitics And The Administrative State, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …

Public Good Through Charter Schools?, Philip Hackney

Articles

Should nonprofit charter schools be considered “charitable” under § 501(c)(3) of the Internal Revenue Code and be entitled to the benefits that go with that designation (income tax exemption, charitable contribution deduction, etc.)? Current tax law treats them as such; the question is whether there is a good rationale for this treatment. In addition to efficiency and equity, I consider political justice as a value in evaluating tax policy. By political justice, I mean a democratic system that prioritizes the opportunity for more people to have a voice in collective decisions (political voice equality or PVE). Thus, a tax policy …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

Articles

United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …

Antipolitics And The Administrative State, Cary Coglianese, Daniel Walters

All Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …

Written Testimony Of Philip Hackney For The Hearing On Laws And Enforcement Governing The Political Activities Of Tax-Exempt Entities (U.S. Senate Finance Committee Subcommittee On Taxation And Irs Oversight, May 4, 2022), Philip Hackney

Testimony

Are tax laws and IRS enforcement up to the task of overseeing the tax issues associated with the political activities of tax-exempt organizations? Though the tax laws governing the tax-exempt realm are wanting, our overall legal structure is not bad. It is justifiable at least. Where we fall down as a nation in this space is in the enforcement. We do not allocate enough resources to this arena, and we do not institutionally offer the support necessary to enforce these laws. These failures do not favor one party over the other but favor those interests in the country with the …

Written Testimony Of Philip Hackney For The Hearing On Donor Disclosure And Campaign Finance Regulations: Reviewing Recent Legal Precedents (Pennsylvania House Of Representatives, State Government Committee, February 7. 2022), Philip Hackney

Testimony

The following is written testimony provided to the Pennsylvania House State Government Committee for a hearing entitled Donor Disclosure and Campaign Finance Regulations: Reviewing Recent Legal Precedents held on February 7, 2022. In 2021, the U.S. Supreme Court in Americans for Prosperity Foundation v. Bonta struck down as facially unconstitutional under the First Amendment a law in California requiring charities soliciting donations in the state of California to disclose substantial donors identified on Schedule B to the IRS Form 990. The Form 990 is the information tax return nonprofits must file annually to maintain their tax-exempt status. Schedule B collects …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

Presidential Primacy Amidst Democratic Decline, Arshaf Ahmed, Karen Tani

All Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

Legitimacy, Legality, Legacy, And The Life Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

The Trump Administration challenged notions of good governance. It challenged our expectation of majoritarian legitimacy to the extent only a minority of voters elected President Donald Trump in 2016. It challenged our demands for reasoned decision-making insofar as the President sought to dismantle the administrative state and govern by fiat. It challenged our expectation of checks and balances in the way it approached appointments and removals to accumulate power at the expense of congressional design. These challenges sound in different legal theories, but they all reflect shattered expectations of good governance. And yet, the most lasting legacy of the Trump …

Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney

Articles

The IRS ended a long-time practice of requiring most nonprofits to disclose substantial donor names and addresses on the nonprofit annual tax return. It is largely seen as a battle over campaign finance rather than tax enforcement. Two of the nonprofits involved, social welfare organizations and business leagues, are referred to as “dark money” organizations because they allow individuals to influence elections while maintaining donor anonymity. Many in the campaign finance community are concerned that this change means wealthy donors can avoid campaign finance laws and have no reason to fear being discovered. In this Article, I focus on whether …

Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney

Articles

In addition to valuing whether a tax policy is equitable, efficient, and administrable, I argue we should ask if a tax policy is politically just. Others have made a similar case for valuing political justice as democracy in implementing just tax policy. I join that call and highlight why it matters in one arena – tax exemption. I argue that politically just tax policy does the least harm to the democratic functioning of our government and may ideally enhance it. I argue that our right to an equal voice in collective decision making is the most fundamental value of political …

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 farmer-bureaucrats …

The Death Of Administrative Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Everybody agrees. Everybody is certain. There are no elected bureaucrats.

That pervasive certainty must come as quite a surprise to elected bureaucrats.

The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.

Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under the direct control …

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 farmer-bureaucrats …

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 …

Grasping For Energy Democracy, Shelley Welton

All Faculty Scholarship

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

Administrative Law: The U.S. And Beyond, Cary Coglianese

All Faculty Scholarship

Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

Of Dialogue--And Democracy--In Administrative Law, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

Articles

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …

Ub Viewpoint – Dissolving The Shadows, Eric Easton

All Faculty Scholarship

No abstract provided.

Privatization And The Democracy Problem In Globalization: Making Markets More Accountable Through Administrative Law, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …

Sustainability: Myth And Reality, Kai Lee

Sustainable Use of the West's Water (Summer Conference, June 12-14)

23 pages (includes illustrations).

Contains references.