Ashraf Ahmed, Lev Menand, & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131 (2024). Richard Murphy Ninety years ago, a unanimous Supreme Court thought it obvious that Congress has constitutional authority to restrict presidential removal authority over FTC Commissioners because, without such limits, the President would have unconstitutional power to direct the FTC’s quasi-legislative and quasi-adjudicative functions. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). These days, thanks in large part to [...] The post Wait a Second – Who Put The ..read more

Kate Andrias, Constitutional Clash: Labor, Capital, and Democracy, 118 Nw. L. Rev. 985 (2024). Edward Rubin The American labor movement has been revitalized in the past few decades. Detached at its outset by American exceptionalism from the ideology that supported European movements, and content to rest upon its success in obtaining the Wagner Act, it settled into a defensive mode following World War II, failing to move beyond its traditional strategies or build alliances with the progressive forces of civil rights [...] The post The Labor Movement’s Reconceptualization of Constitutional Right ..read more

Gabriel Scheffler & Daniel E. Walters, The Submerged Administrative State, 2024 Wisconsin L. Rev. 789 (2024). Margaret Kwoka Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely [...] The post Surfacing Agenc ..read more

Jonathan Petkun & Joseph Schottenfeld, The Judicial Administrative Power, 93 Geo. Wash. L. Rev. ___ (forthcoming), available at SSRN. Emily Bremer What is administrative power and where does it fit within the federal government’s tripartite structure?  These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative [...] The po ..read more

Neal Devins & David E. Lewis, The Independent Agency Myth, 108 Cornell L. Rev. 1305 (2023). Christopher Walker If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent [...] The post A World Without <em>Humphrey’s Executor< ..read more

Catherine Baylin Duryea, Emergency Oversight (May 20, 2024), available at SSRN. Jodi Short To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again? Cat ..read more

Lindsay Nash, Inventing Deportation Arrests, 121 Mich. L. Rev. 1301 (2023). Jack Beermann Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind? When I first encountered this set of related issues, I quick ..read more

Michael Asimow, Greenlighting Administrative Prosecution, 75 Admin. L. Rev. 227 (2023). Michael E Herz Administrative law scholarship comes in many shapes and sizes. One distinctive type is the law review article that began life as a consultant’s report for the Administrative Conference of the United States (ACUS) and then was published in revised (read: more compulsively footnoted and obsessively bluebooked) form in a law review. The ACUS lineage is always visible in the final product: these articles are grounded on and often provide an overview of current practice, they are even-handed, a ..read more

Rebecca Green, FOIA-Flooded Elections, 85 Ohio St. L.J. __ (forthcoming 2024); William & Mary L. Sch. Rsch. Paper No. 09-478, available at SSRN (Oct. 3, 2023). Margaret Kwoka The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continue ..read more

Adam Crews, The Executive Power of the Federal Courts, 56 Ariz. St. L.J. __ (forthcoming 2024), available at SSRN (September 5, 2023). Mila Sohoni As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s ph ..read more