Search results

Full-text available at SSRN. See link in this record. ; This is the second of two articles developing a "standards-based" approach to the rule of law in the context of administrative decisions concerning government benefits. We base our standards-based theory on two core principles. First, the rule of law attaches whenever government officials make decisions involving the application of legal standards - and hence the rule of law safeguards of due process and judicial review attach as well. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion. Because the availability of judicial review is tied to the existence of standards and the Constitution generally requires Congress to provide standards, it follows that Article III judicial review of administrative action is generally required to promote agency compliance with the rule of law. In a previous Article in the Administrative Law Review, Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process, 57 Admin. L. Rev. 107 (2005) we criticized the Court's current entitlement approach to procedural due process in government benefit cases. In the government benefit context, that approach leaves essential procedural safeguards, including notice and the right to be heard, contingent on legislative discretion. We argued that the current approach is the product of historical misunderstandings and doctrinal missteps, and we advanced the standards-based approach to the rule of law as a means of bringing coherence to due process doctrine and securing due process protections for government benefits. In this article, we offer a similar critique of the current doctrine concerning judicial review of government benefits, arguing that it too is the product of historical misunderstandings and doctrinal missteps and that a standards-based approach to judicial review ...

Full-text available at SSRN. See link in this record. ; This article argues that it is time to rethink the jurisprudence of "economic rights." For nearly twenty years, the United States Supreme Court has revisited economic rights doctrines that had lain dormant since the end of the Lochner era in the late 1930s. The Court's renewed concern for in economic rights has come at a time when various political and jurisprudential forces are conducive to a reconsideration of the appropriate role of economic interests in a jurisprudence of constitutional rights. Public distrust of and dissatisfaction with government has run high for a number of years, and tough economic times have focused public attention on the costs of government regulation. Likewise, prominent conservative scholars have argued on behalf of economic rights at the theoretical level, and even liberal scholars have begun to recognize that the total rejection of economic rights is difficult to square with constitutional text and history or with the jurisprudential underpinnings of individual rights doctrine. Against the background of these developments, and to some degree propelled by them, Republican presidents (particularly Presidents Reagan and Bush) have sought to reshape the Court through a series of conservative appointments. Although the rhetoric surrounding these appointments emphasized "judicial restraint" more than economic rights, some conservative justices appear to look more favorably upon economic interests than their liberal predecessors epitomized by the Warren Court. In a series of striking decisions, the reconfigured Court appeared to endorse enhanced protection of economic interests under a number of constitutional doctrines, including the Contract and Takings Clauses, separation of powers and federalism, and even the Equal Protection Clause. Despite the favorable climate, however, the Court was soon forced to retreat from the implications of these decisions. As a result, the Court has not only failed in its apparent effort to enhance ...

Full-text available at SSRN. See link in this record. ; This essay is part of a symposium on a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court's Lochner era jurisprudence of reserved state powers. The long term practical impact of the recent decisions remains unclear, even if the basic contours of the new doctrine are fairly discernable. Indeed, the new federalism raises more questions than it answers, and its final frontiers will depend on how the Supreme Court resolves this next generation of federalism questions. I focus on one subset of questions raised by the recent federalism decisions: their implications for the scope of "other" federal powers, particularly the power to enforce the Reconstruction Amendments and the spending power. Until recently, the commerce power has been the dominant focus of cases concerning the scope of federal authority, and the Supreme Court has paid relatively less attention to the scope of other federal powers. But many of the new federalism limits are specific to the commerce power and do not appear to apply to other federal powers. In light of new sovereignty-based limits on the commerce power, including the "no commandeering rule" and decisions denying Congress the authority to abrogate state sovereign immunity under the commerce power, the power to enforce the Reconstruction Amendments and the spending power are especially attractive and potentially expansive alternative bases of authority for federal action. It is therefore to be expected that the courts will increasingly confront questions concerning the scope of these other federal powers. How the courts resolve those questions will go a long way toward determining whether the new federalism effects a significant practical shift in the balance of federal and state authority. Beyond its practical significance, the ...

Full-text available at SSRN. See link in this record. ; This essay responds to the Foulston, Siefkin Lecture, delivered by Professor William Eskridge at the Washburn University School of Law. Professor Eskridge challenged not only the argument that political powerlessness is a requirement for heightened scrutiny under the Equal Protection Clause, but also the wisdom of applying heightened equal protection scrutiny to laws discriminating against groups that are truly politically powerless. This essay uses Professor Eskridge's argument to frame a more overarching issue in the Court's suspect classification jurisprudence. The political powerlessness issue highlights an important ambiguity in the Court's decisions analyzing whether classes or classifications are inherently "suspect" so as to require heightened equal protection scrutiny of government action that adversely affects those classes or is based on those classifications. Put simply, the cases leave unclear whether heightened scrutiny applies because laws targeting a "suspect class" are likely to be the result of a political process failure, or because the use of a "suspect classification" is unfair to those affected. Under the political process rationale, scrutiny is elevated because a history of discrimination and political powerlessness leads us to suspect that the law is the product of animus toward the class and its members. Under the individual fairness rationale, scrutiny is elevated because the classification is unlikely to reflect real differences that justify treating people differently under the law. The political powerlessness issue is highly relevant if the focal point of the inquiry is the existence of a political process failure, while it is not so relevant to the question of whether it is fair to treat individuals differently on the basis of the classification. I argue in the essay that the cases addressing whether a class or classification is suspect are ambiguous on this question, but other aspects of the Court's equal protection ...