Christopher J. Walker (University of Michigan Law School) has posted Delegation and Independent Judgment (Notre Dame Law Review, forthcoming) on SSRN. Here is the abstract:
In Delegation and Time, Jonathan Adler and I argued that Congress should revive a regular reauthorization process to address the temporal problem with statutory delegations to federal agencies. That is, Presidents and federal agencies use broad delegations in old statutes to address new problems in ways that the enacting Congress would not have contemplated and the current Congress would not authorize. In the six years since that article’s publication, the Article II “delegation and time” problem has been compounded by an Article III “delegation and independent judgment” problem. Perhaps in response to the temporal challenges of delegation, the Supreme Court has introduced the major questions doctrine and replaced Chevron deference with a command that courts exercise independent judgment to resolve ambiguities in statutes that agencies administer. While arguably aimed at reining in the President and federal agencies, these doctrines also make it harder for Congress to legislate. Worse, the doctrines introduce the significant risk that courts will exercise their independent judgment to interpret statutes in ways contrary to the will of either the enacting Congress, the current Congress, or both.
This Essay argues that, in this new era of Article III independent judgment in administrative law, it is all the more important for Congress to revisit statutes governing federal agencies. Congress must be able to address the Article II problem of Presidents and federal agencies attempting to use and misuse old statutes to address new problems. And now Congress must also be able to address the Article III problem of courts interpreting statutes incorrectly as an original matter or contrary to current congressional preferences. Critics of Article II overreach and those of Article III overreach—who often come from different sides of the aisle—should both embrace regular reauthorization and related tools that encourage Congress to revisit and update statutes governing the administrative state.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum