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August 29, 2019|Auer deference, Auer v. Robbins, Chevron deference, Gundy v. United States, John Roberts, Kisor v. Wilkie, nondelegation, Planned Parenthood v. Casey, Stare Decisis

Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference

by Mike Rappaport|

The U.S. Supreme Court (Jer123 / Shutterstock.com).
Chief Justice Roberts gets the best of both worlds—the Court narrows Auer, but is not seen as overturning a precedent dear to progressives.

August 9, 2019|Administrative Law, Auer deference, Chevron deference, Clarence Thomas, EPA, Neil Gorsuch

Replacing Chevron with a Sounder Interpretive Regime

by Mike Rappaport|

The U.S. Supreme Court in 2018 (Olivier Douliery/Pool via CNP /MediaPunch/Alamy.com).
Chevron deference should be replaced with a system that accords weight to both contemporaneous and customary interpretations.

August 1, 2019|Administrative State, Auer deference, Commerce v. New York, Gundy v. United States, John Roberts, Kisor v. Wilkie, Skidmore deference

Judicial Strategies to Contain the Administrative State

by John O. McGinnis|

U.S. Courthouse for the Southern District of New York in New York City (mariakray / Shutterstock.com).
It is hard to overemphasize the importance of lower court judges in making the most of what the Court has begun this term.

December 20, 2018|Anthony Kennedy, Auer deference, Brett Kavanaugh, Chevron deference, Clarence Thomas

Diverging Supreme Court Trends May Leave Some Conservatives Out In the Cold

by Derek Muller|

Supreme Court poses for their official group portrait, November 30, 2018 in Washington, DC Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito, Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. Credit: Kevin Dietsch/ Zuma / Alamy Stock
December 10, 2018, revealed something about the Court: It will be conservative in some ways, but probably not on social issues.

January 5, 2018|Auer deference, Bureaucracy, Chevron deference, expertise, FCC, judicial deference, Justice Robert Jackson, Skidmore deference

Against Skidmore Deference

by Mike Rappaport|

Skidmore deference purports to be about recognizing expertise, but it operates to confer an advantage on agencies. 

November 3, 2016|Auer deference, G.G. v. Gloucester County School Board, Title IX

Previewing the Jurisprudence of Empathy

by Greg Weiner|

Whatever may be said about Gavin Grimm’s legal case, the plaintiff in Gloucester County School Board v. G.G.—which the Supreme Court on Friday agreed to hear—should be credited with handling the lawsuit with the dignity and courage required for a teenager to assert a public position on an intimate matter. One only wishes Grimm and the advocates pursuing the case showed similar empathy for those who are, with equal sincerity, maintaining competing views—views that transgender advocates are using the courts to delegitimize.

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January 13, 2016|Administrative State, Auer deference, Chevron deference, Congress, Executive Power, Informal Rulemaking, Separation of Powers

Congress Derailed: A Conversation with Christopher DeMuth

by Christopher DeMuth, Sr.|

Christopher DeMuth, the great conservative authority on regulatory policy, comes to Liberty Law Talk to discuss his recent work on the institutional decline of congress and how it can return to its place of constitutional prominence.

January 6, 2015|114th Congress, Administrative State, Auer deference, REINS Act

Constraining the Adminstrative State in the 114th Congress

by John O. McGinnis|

Today Republicans will take control of both houses of Congress, and the House of Representatives will have more Republicans than at any time since the New Deal. Given their party’s emphasis on limiting federal government, it is important for these lawmakers to consider transformations of administrative procedure that bring back some limits.  In the long run structural reform can be more powerful than discrete policy changes.

Since the New Deal, administrative government has become a dominant force in political and social life. Executive branch agencies– not Congress– are responsible for most of the federal obligations imposed on individuals and companies. To be sure, executive agencies are operating under statutes Congress passed, but these delegations are often broad and, in some cases, almost unbounded. Moreover, the Supreme Court has permitted agencies to put their own gloss on  the ambiguities in their statutes and even on the regulations that they write. This kind of executive power undermines democratic accountability and liberty,  particularly because bureaucracy generally has inherent tendencies to expand government.

But Congress can cut back on the enormous discretion of the administrative state. Here are four measures that the new Republican Congress should consider:

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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