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Why the Modern Administrative State Is Inconsistent With the Rule of Law
Richard Epstein
What constraints, if any, does the elusive but vital conception of the rule of law place on the interpretation of the Constitution, particularly in its relationship to the rise of the administrative
state?
Neoclassical Administrative Law
Jeff Pojanowski
This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does.
The Origins of Judicial Deference to Executive Interpretation
Aditya Bamzai
The Article thus seeks to establish—contrary to the suggestion in Chevron and recent cases—that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic.
The Rise and Rise of the Administrative State
Gary Lawson
The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.
Consent of the Governed: a Constitutional Norm That the Court Should Substantially Enforce
David Schoenbrod
The Declaration of Independence proclaims that governments derive “their just powers from the consent of the governed.”1 To condition the federal government’s powers upon such consent, the Constitution vested responsibility for exercising certain basic powers, including the power to make rules of private conduct, in the branch of government most directly accountable to the governed, Congress.
Chevron Bias
Phillip Hamburger
Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges—questions concerning independent judgment and systemic bias that have not yet been adequately asked, let alone answered.
Early Prerogative and Administrative Power: A Response to Paul Craig
Philip Hamburger
What does English experience imply about American constitutional law? In his book, Is Administrative Law Unlawful?, Philip Hamburger argues that federal administrative power generally is unconstitutional. Eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past.
The Inversion of Rights and Power
Philip Hamburger