Constitutional Law
Six Puerto Rican Congressmen Go to Washington
116 Yale L.J. 1389 (2007) Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment. Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress. Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
116 Yale L.J. 1116 (2007) Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster.
The Constitutional Foundations of Chenery
116 Yale L.J. 952 (2007) The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency’s action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency’s justification, Chenery’s settled rule enforces an aspect of the nondelegation doctrine that has been obscured by more recent decisions that understand nondelegation as involving only a demand for legislative standards, or “intelligible principles.” The neglected arm of the nondelegation doctrine, which Chenery enforces, holds that a delegation is constitutionally valid only if it requires the agency exercising the delegated authority to state the grounds for its invocation of power under the statute. Chenery’s enforcement of this norm polices the political accountability of agency action by ensuring that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency’s actions, and it promotes the regularity and rationality of agency decision-making by enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decision-making to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery in the enforcement of the nondelegation doctrine, this account also suggests that the President’s own exercise of statutory power is not immune from Chenery’s demands.
Sentencing Organizations After Booker
In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
The Corporate Origins of Judicial Review
116 Yale L.J. 502 (2006) This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution--what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.