Suchergebnisse

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within agencies themselves; and the increasing judicial use of analytic techniques invoking the expectations of those who wrote the Constitution so long ago and in such different circumstances. Never easy, finding the appropriate balance between law and politics presents major challenges today.

La création et l'organisation des gouvernements américains relève de la loi et non de la constitution. Les brèves dispositions de la constitution fixant l'autorité du président à l'égard du gouvernement suggèrent que cette dernière est de l'ordre de la supervision, pas du commandement direct. Or, le présent article soutient toutefois que des présidents aussi divers que Reagan, Clinton et Obama ont tenté d'étendre leur autorité en termes de commandement et non de supervision. L'auteur, qui écrit un an après l'investiture du Président Trump, affirme que celui-ci a poursuivi de façon spectaculaire cette tendance. Il n'hésite pas à comparer son action à celle d'un monarque. Toujours selon l'auteur, l'autorité du président actuel n'est pas contrôlée et ne relève d'aucune interprétation communément partagée de la règle de droit constitutionnel.

This essay, written for an occasion celebrating the scholarship of Prof. William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents – statements of general policy and interpretive rules – that today one generally finds discussed under the rubric "guidance." These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. §553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes. The APA is explicit that in adopting these texts, agencies are not required to use the notice-and-comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party's disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world – hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency's political leadership for their adoption. Documents like these are common world-wide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency's political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are "practically binding." The basic arguments of this essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies "binding" on some agency staff) from what "binds" the public; and, second, that soft law instruments can often be found "final" for purposes of judicial review – if they are, in effect, the agency's internal law – and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about "Auer deference" now pending in the Supreme Court are also addressed.

Written for a French audience in 2017, this article sought to frame the explosive issues about the Trump presidency in relation to the American trend to strong views of the unitary executive, that in the author's view ignore the striking contrast between to propositions in Article II Section 2 of the Constitution, its only words defining presidential power. Made "Commander in chief" of the military, he is next given the power only to require the opinion in writing from the heads of the executive bodies Congress was expected to create how they intended to carry out the duties Congress had imposed on them. For the French audience, and subsequently published in France as Revue française d'administration publique no. 170, 2019, p. 433-446, the abstract read (also in translation): American domestic government is created and defined by statute, not by the American Constitution. The Constitution's limited text defining the American President's authority in relation to that government suggests that his authority is that of oversight, not direct command. In the last half century, this article reflects, Presidents as diverse as Reagan, Clinton and Obama have attempted to extend their authority in the direction of command. Written one year after President Trump's inauguration, the article argues that the current President has dramatically continued this trend, acting as if a monarch. Presidential authority is unchecked and ventures away from any commonly shared interpretation of the constitutional rule of law.

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the final form of the essays you have before you. If you have reached this symposium after publication of the commentary issue, please do read the comments prepared for the essay(s) you read.

Susan Rose-Ackerman's "Executive Rulemaking and Democratic Legitimacy: 'Reform' in the United States and the United Kingdom's Route to Brexit" insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies' production of the large volume of secondary legislation common, indeed inevitable, for both. Agreeing heartily with her conclusion that the weakness of parliamentary engagement with secondary legislation, and limited judicial review of its production, counsels greater provision for public participation and transparency of action at the agency level, there is little for me to add. Aware, too, as she remarks, that others have dealt more extensively with pending legislative proposals to amend American rulemaking processes and with questionable tactics of the Trump administration in relation to existing regulations of which it disapproves, the comments on American issues that follow have more the nature of supplement than critique. Her account of the tensions and hopes for future developments on both sides of the Atlantic are entirely persuasive.

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving "separation of powers" universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments would have structures of distinct elements performing distinct functions, is as readily ascribed to Aristotle and to the Roman Empire as to contemporary governments. For the drafters of the American Constitution, the writings of John Locke and Baron de Montesquieu gave the idea of separation normative force, as a prescription for government organization capable of offering protection against tyrannical rule and for human rights, and some assurance of an open, accountable and responsive government. Yet a contemporary account of "separation of powers" building on this normative commitment must reflect the transformations that have occurred since that time in governments, their ambitions and institutions. Moreover, associating "separation of powers" exclusively with presidential systems such as the American is mistaken. Its relevance today is accepted in parliamentary systems as well as presidential ones. Its meaning is cloudy and variable across political systems and contexts, with vertical elements as well as the conventional horizontal ones of legislature, executive, and court; today, international institutions such as the European Union as well as federal structures come into play. Particularly important, and threatening its success where they have been weakened, are the constraints to be found in norms of political behavior, not captured by legal doctrine or definitions of governmental structure and function. "Controlling the controllers" in the service of individual freedoms can only become the more important as the data revolution enhances the controllers' own means for controlling their populations, and as power is consolidated in fewer governments.