The Abuse of Executive Power: Getting Beyond the Streetlight Effect .
01 Jan 2016-FIU Law Review (Florida International University)-Vol. 11, Iss: 2, pp 289
TL;DR: The authors discusses several categories of such actions, while providing examples from the Obama administration and discusses regulations disguised as guidance, with specific reference to the U.S. Department of Education Office of Civil Rights' “Dear Colleague” letter regarding sexual assault on campus.
Abstract: While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.
TL;DR: The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism as mentioned in this paper, which is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norm.
Abstract: The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.