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May 17, 2018|Due Process, judicial deference, Judicial Power, Originalism, Separation of Powers

Does Administrative Agency Adjudication Violate the Vesting of Judicial Power in the Courts (and Due Process)?

by Mike Rappaport|

Zolinerek/Shutterstock.com
While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.

January 30, 2018|Administrative Law, Auer, Chevron, Classical Liberalism, judicial deference, Separation of Powers, Skidmore

Enabling Congress to Control the Administrative State

by Mike Rappaport|

View of Washington, DC from Washington Monument. Shutterstock.com
Moderating the power of the administrative state means giving power back to Congress and eliminating judicial deference.

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. 

January 3, 2018|Administrative State, Auer, Bureaucracy, Chevron, judicial deference, Separation of Powers, Skidmore

Eliminating Chevron and Auer Deference

by Mike Rappaport|

Chevron and Auer undermine the rule of law. 

November 6, 2017|judicial deference, judicial engagement, Judicial Review

The Dangers of an Engaged Judiciary

by James R. Rogers|

The puzzle is why judges review the constitutionality of (some) laws deferentially. Last week I considered one of the most often provided reasons for deference, that the judges are “unelected,” and so, in a republican political system, should be careful when striking down the enactments of popularly elected legislators. Yet in the American constitutional system, national-level courts are fully republican institutions. They are immunized from direct electoral supervision to make them and the system more republican, not less republican. They are selected by the people’s representatives, and serve only during “good behavior.” This makes courts republican institutions according to the “rigid definition” that James Madison provides in Federalist No. 39. So, too, at the state level, many judges are elected directly, or at least undergo retention elections. It’s hard to maintain at either the state or national level that the judiciary is a non-republican branch of government.

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November 1, 2017|judicial deference, Judicial Review, Rationality Review, Strict Scrutiny

Why Judicial Deference?

by James R. Rogers|

Judges do not treat all constitutional rights the same.

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March 2, 2017|Administrative State, Chevron, judicial deference, judicial engagement, Judicial Restraint, Neil Gorsuch

Gorsuch Gets Judicial Deference Right

by David McDonald|

Paragraf, Fragezeichen, Urteil, Recht, Gesetz,  in dubio pro reo, Urteilsfindung, Rechtsprechung, Justiz, Symbol, Gericht, Gerechtigkeit, Ungerechtigkeit

As the confirmation battle over 10th Circuit Judge Neil Gorsuch—Donald Trump’s nominee to fill the late Antonin Scalia’s Supreme Court seat—takes shape on cable news shows and across newspaper opinion pages, phrases like “judicial restraint” and “judicial activism” dominate much of the discussion.

While anyone you ask will agree that restraint is good and activism bad, and that judges should be careful not to usurp lawmaking authority from the people’s duly elected representatives, it’s often difficult to figure out exactly what people mean when they give their opinion on this subject. All too often, calls for judicial restraint or deference are not about dispassionately applying the law and leaving the policy decisions to Congress; they are calls for blind rubber-stamping of governmental action.

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March 29, 2016|Alan Gibson, Alexander Hamilton, Article III, Evan Bernick, Federalist 78, James Madison, judicial deference

Constitutionalism by Word Association: A Reply to Evan Bernick

by Greg Weiner|

The doors of the Supreme Court

At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”

This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.

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December 20, 2015|duty of clarity, James Iredell, James Wilson, judicial deference, judicial engagement, United States v. Ravara

More Evidence for the Judicial Duty of Clarity

by John O. McGinnis|

In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.

My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.

Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.

The case in which the duty of clarity appeared to be decisive was United States v. Ravara.

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July 9, 2015|Damon Root, Federalism, Fourteenth Amendment, judicial deference, Judicial Review, Libertarianism, Overruled, Privileges or Immunities Clause

Fighting Federalism: Damon Root’s Overruled (Part One)

by Kurt T. Lash|

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

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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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