Taylor Maas (Yale Law School) has posted The Absent Branch: Reclaiming Congress’s Role in Executive Reorganization on SSRN. Here is the abstract:
Since the last grant of presidential reorganization authority lapsed on December 31, 1984, Congress has largely disappeared from its constitutional task of organizing the administrative state. In its place, the structure of government is remade through executive orders, budget and personnel decisions, and interagency workarounds, each policed, if at all, by the federal courts. While scholars have called upon Congress to reauthorize reorganization powers, this paper argues that those powers alone are insufficient. Historically, reorganization commissions accompanied these powers, and revisiting the successes and failures of these commissions can lend valuable lessons for developing a modern commission despite current instability. This paper thus revisits these reorganization commissions of the twentieth and twenty-first centuries that existed before, during, and after presidential reorganization authority that molded the administrative state. In doing so, the intent is to identify the reasons why certain reorganization commissions prevailed while others fell victim to the political system, and to prescribe a modern reorganization commission consistent with Supreme Court doctrine.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum