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Scholarly Articles

Why the Modern Administrative State Is Inconsistent With the Rule of Law

Richard Epstein

Focus Area:

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.
Scope of Authority / Nondelegation

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?

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Neoclassical Administrative Law

Jeff Pojanowski

Focus Area:

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Judicial Deference

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.

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The Origins of Judicial Deference to Executive Interpretation

Aditya Bamzai

Focus Area:

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Judicial Deference

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.

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The Rise and Rise of the Administrative State

Gary Lawson

Focus Area:

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.

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Consent of the Governed: a Constitutional Norm That the Court Should Substantially Enforce

David Schoenbrod

Focus Area:

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

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.

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Early Prerogative and Administrative Power: A Response to Paul Craig

Philip Hamburger

Focus Area:

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Due Process Violations

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Judicial Deference

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

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.

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The Inversion of Rights and Power

Philip Hamburger

Focus Area:

Administrative Speech Controls

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Administrative Speech Controls

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Due Process Violations

Unreasonable Searches

The Fourth Amendment forbids warrantless searches and seizures of information, yet the Administrative State violates this right to privacy through administrative subpoenas and warrants, automated information collection devices, civil investigative demands, and “voluntary” requests for information.

Unreasonable Searches

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

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The Administrative Evasion of Procedural Rights

Philip Hamburger

Focus Area:

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Due Process Violations

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

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