Showing papers by "Keith E. Whittington published in 2016"

The Myth of the Nondelegation Doctrine

Abstract: For much of the nineteenth and early twentieth century, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940 — more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.

Sober Second Thoughts

Abstract: Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.

Much Ado About Nothing: Signing Statements, Vetoes, and Presidential Constitutional Interpretation

Abstract: During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in the new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This paper argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional position adopted in any given signing statement, signing statements as such are mostly unobjectionable. Although it might be preferable for presidents more often to veto constitutionally problematic legislation, modern legislative practices have made the veto power less useful and rendered signing statements more useful.

Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court

Abstract: Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.

Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court

Abstract: Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.