Administrative Law at a Turning Point
Administrative law faces a critical juncture. Settled doctrines ranging from deference to agency interpretations of statutes to delegations of executive power have been destabilized. And earlier this year, Justice Breyer—himself an administrative-law scholar—retired from the Supreme Court. We publish this Collection as a tribute to his judicial legacy.
Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine
This Essay examines the major questions doctrine’s relationship to the administrative-law jurisprudence of a man who helped develop it: Justice Breyer. Born of Breyer’s proposal to bring nuance into judicial review of agency action, the doctrine has taken on a life of its own much different than what he imagined.
The Jurisprudence of “Degree and Difference”: Justice Breyer and Judicial Deference
Justice Stephen Breyer’s context-specific approach to judicial deference has prevailed in Supreme Court’s decisions to an underappreciated extent. Now the conservative majority is moving toward a no-deference rule. But they are unlikely to ultimately succeed because institutional pressure that then-Judge Breyer observed will drive courts to nevertheless consider context-based factors.
The Binary Executive
The Supreme Court is inventing a new brand of administrative law, in which the President holds all executive power, but the Court restricts and countermands agencies’ policymaking discretion. The Court thus takes a share of the executive power it assigns exclusively to the President. The result is constitutionally unsound.