Constitutional Law
Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools
Environmental Economics: A Market Failure Approach to the Commerce Clause
116 Yale L.J. 456 (2006) Congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating economic activity. This Note proposes a market failure approach to guide the new economic inquiry. Under this approach, statutes that correct market failures should be understood as economic in nature. The proposed approach draws on the insights of environmental economics to explain how environmental regulation targets market failures, and it supports upholding environmental statutes--in particular, the Endangered Species Act--as a permissible exercise of Commerce Clause authority.
Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers
Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers
Beyond Marbury: The Executive's Power To Say What the Law Is
115 Yale L.J. 2580 (2006) Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, the most cited case in modern public law. Chevron is not merely a counter-Marbury for the executive branch, but also the Erie Railroad Co. v. Tompkins of the last half-century. It reflects a salutary appreciation of the fact that the law's meaning is not a "brooding omnipresence in the sky"--and that the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. The principal qualification has to do with certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient. Read Professor Sunstein's Debate with Professor Peter L. Strauss
Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive
115 Yale L.J. 2446 (2006) Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intrabranch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer.
Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System
This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.
Executive Branch Usurpation of Power: Corporations and Capital Markets
115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branches because it can respond faster to perceived emergencies. Congress is hampered more than the executive by gridlock caused by special-interest group pressures when it tries to act quickly. The legislative process is also inherently slower than the executive process because the executive can launch into unilateral action, as by filing a lawsuit. The executive's structural advantage over the judiciary is even more complete than its advantage over Congress because the judiciary has no power to initiate action. Executive action, particularly that of agencies, determines the course of law. This Essay argues that the ascendancy of the executive branch in policymaking is an unintended consequence of the modern administrative state. The emergence of the executive as the fulcrum of power within the administrative state upsets the traditional balance of powers among the three branches of government. This imbalance can be counteracted only by a concerted effort by the federal judiciary to rein in executive power that improperly usurps Congress's authority to make law.
Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of powers can be reflected within the executive branch when that branch, not the legislature, is making much of the law today. The first-best concept of "legislature v. executive" checks and balances must be updated to contemplate second-best "executive v. executive" divisions. A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial functions. It creates a civil service not beholden to any particular administration and a cadre of experts with a long-term institutional worldview. This Essay therefore proposes a set of mechanisms that can create checks and balances within the executive branch in the foreign affairs area. The apparatuses are familiar--separate and overlapping cabinet offices, mandatory review of government action by different agencies, civil-service protections for agency workers, reporting requirements to Congress, and an impartial decision-maker to resolve inter-agency conflicts. The idea is to create a more textured conception of the presidency than either the unitary executivists or their critics espouse.