Justice Scalia famously described the Lemon test as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried . . .” For many, this aptly describes the nondelegation doctrine—a ghoul that haunts the administrative state. Almost a century has passed since the Supreme Court invoked […]
In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. […]
The Supreme Court’s 1935 landmark decision, Humphrey’s Executor, is on the chopping block. In Trump v. Slaughter, scheduled for argument next month, the Court will consider whether President Trump lawfully removed Rebecca Slaughter from the Federal Trade Commission. It has directed the parties to brief and argue “whether the statutory removal protections for members of […]
There are probably other candidates, but the Supreme Court’s virtually unexplained order of November 6 in Trump v. Orr, allowing the Trump Administration to implement its decision to require trans citizens seeking new or renewed passports to use their gender at birth, instead of their current gender, seems to win the award as the most […]
In the summer of 2023, Professor Yoon-Ho Alex Lee of Northwestern Law School called Karen Crocco, my father’s assistant of forty years (and Executive Secretary of the American Law and Economics Association), to ask whether he might organize a Festschrift honoring George. My father, who had always insisted on keeping the focus on ideas rather […]
Despite the overwhelming concern over the use of artificial intelligence, one of the most promising use cases for AI is regulatory reform. Regulatory accumulation — the slow accumulation of rules, related guidance, case law, and specialized knowledge — has created a knowledge base that no human brain could contain, let alone comprehensively analyze. AI, on […]
Now that the Department of Justice has taken the dramatic step of indicting New York Attorney General Letitia “Tish” James, plenty of ink and pixels have been spent assessing the procedural missteps of the prosecution and the strength of the evidence. An important question was lost in the shuffle: was the investigation of James legal […]
A law can exist and not exist at the same time. One morning, it binds the U.S. government and reassures the public; by afternoon, it has been secretly rescinded without altering the official public record. On paper, it still stands. In practice, it is gone. That is the odd physics of America’s executive orders. Even […]
On October 21, OIRA’s Acting Administrator signed M-25-36, “Streamlining the Review of Deregulatory Actions.” I will leave it to others to comment more fully on many of its provisions, including: Instead, I want to focus on Part III, on deregulation’s purportedly unique benefits. The memo makes many claims that fly in the face of sound […]
The Supreme Court has enabled a dramatic expansion of executive power during the first nine months of the Trump Administration. Much of this has occurred with minimal or no explanation on the emergency docket, allowing the Administration to proceed without any consideration, much less a determination, of whether the challenged, ongoing activity is lawful. Examples […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. We agree with Sen. Eric Schmitt that “Congress must reclaim the habit of legislating.” While much of the senator’s report and commentary addresses the challenges posed by the administrative state, we hope he and […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. The Congressional Review Act is a congressional eraser that wipes agency rules clean—and prevents their future reenactment. President Trump is wielding the Act more effectively than ever before, with a Republican trifecta in control […]
One of the strongest arguments against the unitary executive interpretation of the Constitution is based on the Opinions Clause. If the President has constitutional authority to direct executive branch officials, why was a clause that authorized him to “require the Opinion, in writing, of the principal Officer in each of the executive Departments” needed? After […]
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here. The Post-Chevron Working Group Report reads less as a plan to improve Americans’ lives through streamlining agencies and achieving democratic accountability than as a broadside against the functionality of American governance that has risen […]