On January 1, 2022, the Arizona Supreme Court announced the most radical change to the American jury in nearly thirty-five years: the elimination of peremptory strikes. Arizona’s move is part of a broader trend of states experimenting with new ways to counter racial exclusion in the selection of juries after decades of federal inaction. Perhaps as noteworthy as the reforms themselves is the way in which many have come about: Rather than announcing...
Separation of Powers
In a series of recent cases, the Supreme Court has reconfigured the administrative state in line with a particular version of Article II. According to the Court’s scheme, known as the theory of the “unitary executive,” all of the government’s operations must be housed under one of three branches, with the head of the executive branch shouldering unique and personal responsibility for the administration of federal law.
Guiding the...
This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws...
As James Madison famously wrote, the power of the purse is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” But the Constitution does not outline specific procedures for how Congress should use that weapon. Over time, Congress has developed a set of norms—the two-step authorization-appropriations process—to effectively execute its power under the Appropriations Clause....
In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”
The...
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting...
Contemporary scholarship and jurisprudence concerning the Constitution’s separation of powers is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation of powers system as abiding in a stable equilibrium or as enthralled by transformative...