Recently, in FCC v. Consumers’ Research, the Supreme Court rejected a challenge to a congressional delegation of power to the FCC to assess payments from telecommunications companies to subsidize communications services in underserved communities, missing another opportunity to return to a strict prohibition on Congress’s delegation of its legislative power to the executive branch.[1] However,…

It has been almost a year and a half since the Supreme Court overruled Chevron, and its requirement that courts sometimes “defer to ‘permissible’ agency interpretations of” statutes. In doing so, the Supreme Court unqualifiedly stated that, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.” One would…

Does Congress actually have the power to spend? One looking only at the Constitution’s text would be hard-pressed to find any language that grants Congress a general spending power. Yet modern-day Spending Clause jurisprudence has given Congress an expansive spending power that cuts through other constitutional constraints.     The Spending Clause, art. I, § 8,…

The United States Supreme Court will hold oral argument in early December in Trump v. Slaughter,to decide whether the President of the United States has the authority to remove a Commissioner of the Federal Trade Commission. In agreeing to hear the case on an expedited time frame, the high court also directed the parties to…

“No one is above the law,” we say—“we” being those of a basically republican frame of mind, and “republican” being the belief (as relevant here) that governmental actors are those who exercise delegated authority with the majority consent of the governed, but who are otherwise no different from the rest of us.  But who is…

Courts are in the business of saying what the law is, not what the law should be. Congress is in charge of writing statutes that are understandable and don’t leave holes where agencies—or courts—decide to put their creative touch on the wording. But Congress is not perfect, and statutes get passed that look like a…