Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
In one of the Consumer Financial Protection Bureau’s first strategic plans, the then-new agency highlighted Congress’s decision to vest it with a completely independent source of revenue: “providing the CFPB with funding outside of the congressional appropriations process,” Congress had “ensure[d] full independence” for the agency. The agency’s declaration of independence from future congressional appropriations […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
For this holiday week, there was one item on the menu at the D.C. Circuit: the extraordinary remedy of mandamus. The EPA’s violation of law, it turned out, was clearer than crystal. In re Center for Biological Diversity granted the writ to force EPA to do something that the D.C. Circuit told it to do […]
The news of Judge Laurence Silberman’s passing on October 2 spurred a wave of remembrances from colleagues, admirers, former proteges, Supreme Court justices, and many more. Some of my AEI colleagues contributed writings of their own: Robert Doar, Yuval Levin, and John Yoo. His contributions to the law—particularly in respecting and reinforcing the Constitution’s separation of powers—were immense, as many of his […]
Next week, the Supreme Court will hear arguments in United States v. Texas, a suit challenging the Biden Administration’s current immigration enforcement priorities. The Court should reject this challenge for reasons I outlined in a 2016 article. Although the administration’s policy may fall short of ideal faithful execution of federal law, its deficiencies present a […]
The D. C. Circuit issued only one decision this week. In Ohio Nuclear-Free Network v. Nuclear Regulatory Commission, the Court rejected a petition challenging the agency’s grant of a license to produce uranium for failure to prepare the analysis called for by the National Environmental Policy Act. In an opinion written by Judge Henderson (within […]
Yesterday (November 16, 2022), Yale Law School (YLS) announced that it would no longer be cooperating with U.S. News & World Report (USNWR) on law school rankings. Within a few hours, Harvard Law School (HLS) made the same announcement. Earlier today, Berkeley made a similar statement. My view on the merits is that the USNWR […]
*This is the sixth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. In The Reasoning State, Jed Stiglitz offers a novel argument for the necessity of the administrative state. It is not, as other scholars have argued, that Congress delegates power because it lacks the capacity […]
*This is the sixteenth and final post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. In Part 1 of my response to the wonderful set of fourteen essays commenting on my book, Democracy’s Chief Executive: Interpreting the […]
*This is the fifth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. In Jed Stiglitz’s important new book, he argues that legislators delegate policymaking authority to administrative agencies because of agencies’ ability to solve a trust problem between voters and elected officials. Voters confronted with an […]
*This is the fifteenth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. My first reaction to the just-ended three-week symposium on my book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency […]
*This is the fourth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. “[A]gencies do not have quite the prerogative of obscurantism reserved to legislatures.” This observation, one of my favorites in the widely taught United States v. Nova Scotia Food Products Corp., describes fundamental features of […]
*This is the third post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. I am delighted to participate in a symposium on Professor Jed Stiglitz’s new book, The Reasoning State. Stiglitz contends that the administrative state—and in particular, the transfer of authority from Congress to agencies—is justified […]
*This is the second post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. The Reasoning State presents a broadly interdisciplinary discussion and defense of the administrative state. Jed Stiglitz engages with history, political science, and psychology to argue that credible reasoning about policy matters, incentivized and enforced […]