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Hereby Neutering—The Doctrines That Serve to Subject Administrative Agencies to the Rule of Law
HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 42, NUMBER 3 SUMMER 2019 ARTICLES MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM Mark L. Movsesian ................................................................. 711 THE SICKNESS UNTO DEATH OF THE FIRST AMENDMENT Marc O. DeGirolami ................................................................ 750 YAKUS AND THE ADMINISTRATIVE STATE James R. Conde & Michael S. Greve. ....................................... 807 CORPUS LINGUISTICS AND “OFFICERS OF THE UNITED STATES” James C. Phillips, Benjamin Lee & Jacob Crump. ................... 871 NOTES GIVE VETERANS THE BENEFIT OF THE DOUBT: CHEVRON, AUER, AND THE VETERANS CANON Chadwick J. Harper .................................................................. 931 THE ORIGINAL MEANING AND SIGNIFICANCE OF EARLY STATE PROVISOS TO THE FREE EXERCISE OF RELIGION Branton J. Nestor ..................................................................... 971 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board VINCENT LI BEN FLESHMAN GRANT NEWMAN Notes Editors ANASTASIA FRANE DAVID RICHTER AARON GYDE JOSHUA HA SAM WILLIAMS BRANTON NESTOR JAMES -
No Law to Apply”: Uniting the Current Court in the Context of Apa Reviewability
BEYOND “NO LAW TO APPLY”: UNITING THE CURRENT COURT IN THE CONTEXT OF APA REVIEWABILITY In back-to-back Supreme Court Terms, § 701(a)(2) of the Administrative Procedure Act1 (APA) has returned to the forefront. While the APA generally allows anyone “adversely affected or aggrieved by agency action” to seek judicial review,2 the APA makes agency action unreviewable under § 701(a)(1) if the organic statute “preclude[s] judicial review,”3 or under § 701(a)(2) if the “agency action is committed to agency discretion by law.”4 Two recent cases, Department of Commerce v. New York5 and Department of Homeland Security v. Regents of the University of California,6 featured a divide between Chief Justice Roberts, who held that the relevant agency actions were unlawful be- cause they were “arbitrary and capricious” under § 706 of the APA, and Justice Alito, who contended that the agency actions were not reviewa- ble at all because of § 701(a)(2).7 The now-recurring dispute between Chief Justice Roberts and Justice Alito on the scope of § 701(a)(2) exemplifies broader divisions on the Court. While some scholars have claimed that the “conservative” Justices share a unified approach that achieves conservative political victories,8 such analysis ignores meaningful differences among the Justices in their understandings of the proper role of the judiciary. Specifically, Professor Adrian Vermeule has helpfully distinguished “Ar- ticle II conservatives” from “Article III conservatives.”9 On Vermeule’s view, Article II conservatives are generally “deferential to presidential ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 5 U.S.C. §§ 551, 553–559, 701–706. -
The John M. Olin Fellowships and the Advancement of Conservatism in Legal Academia
THE JOHN M. OLIN FELLOWSHIPS AND THE ADVANCEMENT OF CONSERVATISM IN LEGAL ACADEMIA “[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics.”1—F.A. Hayek INTRODUCTION In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven M. Teles stated, “It is still too early to tell whether the [John M.] Olin Fellows2 program has been effective, and in any case it is very difficult to disentangle the impact of the program from the influence of a changed le- gal culture or greater willingness of law schools to consider hir- ing conservatives.”3 The fellowship program, which provides conservatives or moderates interested in entering the legal academy with a one to two year, fully-funded position at a law school,4 is a joint venture of sorts between the Federalist Society and the John M. Olin Foundation, an organization better known in law schools for its advancement of law and econom- ics programs. Since 1997, the John M. Olin Fellowship has sought to encourage and assist conservatives and libertarians in becoming law professors.5 In investigating the theory that a changed legal culture at least partially explained the John M. Olin Fellows’ placement success- es in the academy, Professor Teles looked to Harvard Law School and cited then-Dean Elena Kagan’s hiring of three con- servatives to the law school faculty—Professors John F. Man- ning, Jack Goldsmith, and Adrian Vermeule.6 During her tenure, 1. F.A. Hayek, The Intellectuals and Socialism, in THE INTELLECTUALS: A CONTRO- VERSIAL PORTRAIT 371 (George B. -
The Death of Judicial Conservatism
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2009 The Death of Judicial Conservatism David A. Strauss Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David A. Strauss, "The Death of Judicial Conservatism," 4 Duke Journal of Constitutional Law and Public Policy 1 (2009). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE DEATH OF JUDICIAL CONSERVATISM DAVID A. STRAUSS* If we are talking about what happened during the Bush Administration, 'The Death of Judicial Conservatism" looks like it is either a misprint or the deluded ramblings of a liberal who did not get the memo. But I think it is fair to say that one of the lessons we have learned in the wake of the Bush Administration's appointments to the Supreme Court is that judicial conservatism no longer exists in any significant form. Or at least so I argue here. To say that judicial conservatism has died is not to say that its opposite, judicial liberalism or progressivism, has flourished. It is clearer than ever that people who hoped for the revival of the Warren Court-a court that had an agenda to be at the forefront of what it considered to be social reform in a generally liberal direction-had better give up that hope for at least a generation. -
The Credible Executive
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2007 The Credible Executive Eric A. Posner Adrian Vermeule Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Eric Posner & Adrian Vermeule, "The Credible Executive," 74 University of Chicago Law Review 865 (2007). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Credible Executive Eric A. Posnert andAdrian Vermeulett Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold authority that they would have preferred to grant, making all concerned worse off We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commis- sions within the executive branch; bipartisanshipin appointments to the executive branch,or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateralaction in foreign policy; increasingthe transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. The main tradeoff or cost is that increasingcredibility tends to diminish the President'scontrol; in light of this tradeoff we examine the conditions under which these mechanisms succeed or fail, with historicalexamples. -
The International Protection of Cultural Property: Some Skeptical Observations
University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2006 The nI ternational Protection of Cultural Property: Some Skeptical Observations Eric A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Eric Posner, "The nI ternational Protection of Cultural Property: Some Skeptical Observations" (University of Chicago Public Law & Legal Theory Working Paper No. 141, 2006). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 141 THE INTERNATIONAL PROTECTION OF CULTURAL PROPERTY: SOME SKEPTICAL OBSERVATIONS Eric A. Posner THE LAW SCHOOL THE UNIVERSITY OF CHICAGO November 2006 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=946778 The International Protection of Cultural Property: Some Skeptical Observations Eric A. Posner1 Abstract. Cultural property is subject to two international legal regimes, one of which protects cultural property during wartime, and the other of which regulates the international trade in cultural property. -
Reply: the Institutional Dimension of Statutory and Constitutional Interpretation
Michigan Law Review Volume 101 Issue 4 2003 Reply: The Institutional Dimension of Statutory and Constitutional Interpretation Richard A. Posner United States Court of Appeals for the Seventh Circuit Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, Judges Commons, Jurisprudence Commons, Legal Writing and Research Commons, and the Supreme Court of the United States Commons Recommended Citation Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 MICH. L. REV. 952 (2003). Available at: https://repository.law.umich.edu/mlr/vol101/iss4/3 This Response or Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. REPLY: THE INSTITUTIONAL DIMENSION OF STATUTORY AND CONSTITUTIONAL INTEPRETATION Richard A. Posner* I. Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions1 that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point2 has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic3 to the point of being immodest,4 is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better than it has been by their predecessors. -
Interring the Nondelegation Doctrine
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2002 Interring the Nondelegation Doctrine Eric A. Posner Adrian Vermeule Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Eric Posner & Adrian Vermeule, "Interring the Nondelegation Doctrine," 69 University of Chicago Law Review 1721 (2002). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Interring the Nondelegation Doctrine Eric A. Posnert Adrian Vermeulett A large academic literature discusses the nondelegation doctrin4 which is said to bar Con- gress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literatureaccepts the existence of the doctrine and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine:A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power.Agents acting within the terms of such a statutory grantare exercising executive power,not legislative power. Our argumentis based on an analysis of the text and history of the Constitution, the case law, and a cri- tique offunctional defenses ofthe nondelegationdoctrine that have been proposed by academics. INTRODUCTION One of the most exhaustively analyzed topics in public law is the "nondelegation doctrine," which holds that Congress must supply an "intelligible principle" to guide its agents' exercise of statutory author- ity.' Our excuse for writing this brief essay on delegation is that we have come to hold a far cruder, less nuanced view than any currently found in the literature. -
The Bounds of Executive Discretion in the Regulatory State
The Bounds of Executive Discretion in the Regulatory State https://www.pennlawreview.com/symposium/bios/ Navigation Main Registration Schedule Bios Resources Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School and a scholar of U.S. foreign relations law and public international law. Her work focuses on the allocation of legal authority among U.S. governmental actors and, at the international level, between domestic actors and international regimes. She has published in the Cornell Law Review, the Virginia Law Review, and numerous international law journals. 1 of 14 2/9/2016 12:16 PM The Bounds of Executive Discretion in the Regulatory State https://www.pennlawreview.com/symposium/bios/ Michael Gerhardt is Samuel Ashe Distinguished Professor of Constitutional Law. He is a nationally recognized expert on constitutional conflicts and has participated in the confirmation proceedings for five of the nine justices currently sitting on the Supreme Court, including most recently as Special Counsel to Chairman Patrick Leahy and the Senate Judiciary Committee on the nominations of Sonia Sotomayor and Elena Kagan to the Supreme Court. During President Clinton's impeachment proceedings, he testified as the only joint witness before the House of Representatives and served as CNN's full-time impeachment expert, and he has advised Democratic Senate leaders on the constitutionality of the filibuster since 2003. Besides testifying in a number of hearings before the House and Senate, Professor Gerhardt has published dozens -
July 6: Final Formatted Thesis Copy
ABSTRACT A Plan For All Seasons: A Constitutional Framework That Secures The Blessings of Liberty David S. Klopfer Director: Steve A. Block, Ph.D. This thesis will examine the constitutional interpretation philosophies of Ronald Dworkin and Antonin Scalia. The “moral reading” (Dworkin’s interpretive framework) and “originalism” (Scalia’s interpretative framework) will be described and contrasted. The philosophical underpinnings of each method will be scrutinized. This thesis will start with Dworkin and also include a “conservative” who embraces the “moral reading” for his own purposes. We will critique this approach to constitutional interpretation. Finally, Scalia’s method (textualism or originalism) will be described and deeply analyzed. Originalism has a principled foundation and motivation that eschews judicial moral direction of society apart from applying what is found in the Constitution and law. The main contention of this project will be that there is no means of applying constitutional principles that will yield perfect results in every situation. It is a human system. However, originalism is the least imperfect method which is what its adherents claim. ` APPROVED BY DIRECTOR OF THE HONORS THESIS: ______________________________________________________ Dr. Steve Block, Department of Political Science APPROVED BY THE HONORS PROGRAM: _____________________________________________________ Dr. Elizabeth Corey, Director DATE:_________________________ A PLAN FOR ALL SEASONS: A CONSTITUTIONAL FRAMEWORK THAT SECURES THE BLESSINGS OF LIBERTY A Thesis Submitted to the Faculty of Baylor University In Partial Fulfillment of the Requirement for the Honors Program By David Klopfer Waco, Texas July 2021 TABLE OF CONTENTS Introduction . 1 Chapter One: The Moral Reading . 7 Chapter Two: The Problem With the Moral Reading . -
The Federalist Society Review
Volume 18 The Federalist Society Review fedsoc.org When a Pastor’s House Net Neutrality Without Is a Church Home: Why the FCC?: Why the FTC the Parsonage Allowance Can Regulate Broadband Is Desirable Under the Effectively Establishment Clause — Roslyn Layton & Tom Struble — Hannah C. Smith & Daniel Benson Blaine Amendments and Lions Under the Bureaucracy: the Unconstitutionality of Defending Judicial Deference Excluding Religious Options to the Administrative State from School Choice Programs — Evan Bernick, reviewing Law’s — Erica Smith Abnegation, by Adrian Vermeule Morally Innocent, Legally A Modest Proposal for the Guilty: The Case for Mens Reduction of the Size of the Rea Reform Federal Judiciary by Two-Thirds — John G. Malcolm — Brian M. Cogan The Federalist Society for Law & Public Policy Studies Directors & Officers Letter from the Editor Steven G. Calabresi, Chairman Hon. David M. McIntosh, Vice Chairman Gary Lawson, Secretary Brent O. Hatch, Treasurer T. Kenneth Cribb C. Boyden Gray Dear Friend, Leonard A. Leo, Executive Vice President Edwin Meese, III Eugene B. Meyer, President Michael B. Mukasey THE FEDERALIST SOCIETY REVIEW is Lee Liberman Otis, Senior Vice President Prof. Nicholas Quinn Rosenkranz the legal journal produced by the Board of Visitors Mr. Christopher DeMuth, Co-Chairman Hon. Orrin G. Hatch, Co-Chairman Federalist Society’s Practice Groups. Prof. Lillian BeVier George T. Conway III The REVIEW was formerly known as Hon. Lois Haight Herrington Hon. Donald Paul Hodel Hon. Frank Keating, II ENGAGE, and although the name has Hon. Gale Norton Hon. Theodore B. Olson changed, it still features top-notch Mr. Andrew J. Redleaf Hon. Wm. -
Adrian Vermeule the Literature on Constitutional Design Focuses on The
SELECTION EFFECTS IN CONSTITUTIONAL LAW Adrian Vermeule* The literature on constitutional design focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making “ambition counteract ambition”;1 justify negative liberties, such as free speech and free association, as necessary correctives to incumbent officials’ incentives to suppress political opposition; and so forth. In this experimental essay I sketch a different way of looking at constitutional design: through the lens of selection effects. Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question of which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, a selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power.2 This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove self-stabilizing: the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves.