CONSTITUTIONAL AND LEGAL CHALLENGES IN THE ADMINISTRATIVE STATE

2021 ◽  
Vol 38 (1) ◽  
pp. 6-24
Author(s):  
Ronald J. Pestritto
Keyword(s):  
New Deal ◽  
Executive Branch ◽  
Federal Courts ◽  
Central Feature ◽  
Administrative State ◽  
American Government ◽  
Judicial Practice ◽  
Legal Challenges ◽  
Judicial Scrutiny ◽  
Near Future

AbstractFollowing the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

scholarly journals Zivotofsky v. Kerry and the Balance of Power

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 16-21 ◽  
Author(s):  
Jean Galbraith
Keyword(s):  
Balance Of Power ◽  
Executive Branch ◽  
Federal Courts ◽  
Foreign Affairs ◽  
Country Of Birth ◽  
Distribution Of Power

Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed with broader questions. Does the President have the exclusive constitutional authority to undertake the international legal act of recognition? Does the President have further exclusive constitutional authority to control the content of executive-branch communications with foreign nations? What powers does Congress have in foreign affairs? And are these justiciable issues for the federal courts to resolve?

Part IV Separation of Powers, Ch.22 The Administrative and Regulatory State

2016 ◽  
Author(s):  
Somanathan TV
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Administrative State ◽  
Regulatory State ◽  
Judicial Decisions ◽  
Regulatory Bodies ◽  
Regulatory Functions ◽  
Constitutional Jurisprudence

This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.

Nine The Fall of the Original Ninth Amendment and the Rise of New Deal Constitutionalism

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
Progressive Era ◽  
New Deal ◽  
Federal Courts ◽  
Present Discussion ◽  
Ninth Amendment ◽  
The New Deal

This chapter begins with a fairly exhaustive account of the use of the Ninth Amendment in state and federal courts prior to the New Deal. There is nothing new here in terms of theory: one finds the same analysis of the Ninth Amendment already developed in prior chapters repeated over and over again in state and federal courts throughout the Progressive era. There is a purpose, however, to including this history. One of the most durable myths about the Ninth Amendment is that it attracted little attention prior to the modern Supreme Court's discovery of the Ninth in Griswold v. Connecticut. The present discussion puts this myth permanently to rest. The second half of the chapter helps explain how the myth arose in the first place.

Franklin Roosevelt and the Modern Presidency

1992 ◽  
Vol 6 (2) ◽  
pp. 322-358 ◽  
Author(s):  
Stephen Skowronek
Keyword(s):  
New Deal ◽  
Presidential Leadership ◽  
The Political ◽  
American Government ◽  
Modern Presidency ◽  
Political Foundations ◽  
Franklin Roosevelt ◽  
The Relationship ◽  
The New Deal

The political foundations of the modern presidency were laid during the New Deal years. Franklin Roosevelt was the New Deal president. The relationship between these two facts is a matter of some consequence. On it hinges our understanding of presidential leadership and modern American government generally, not to mention the political significance of Roosevelt himself.

scholarly journals Cerco à liberdade: a complexa dinâmica do poder nos EUA

2018 ◽  
Vol 4 (2) ◽  
pp. 197
Author(s):  
Cecilia Azevedo
Keyword(s):  
Twentieth Century ◽  
New Deal ◽  
American Government ◽  
Princeton University ◽  
The New Deal

<em><span>Liberty and Coercion: The Paradox of American Government from the Founding to the Present</span></em><span>, publicado em 2015 pela prestigiosa Princeton University Press, se impõe como uma obra fundamental para todos os interessados em História dos Estados, como também o são dois livros anteriores do autor - <em>The rise and fall of the New Deal Order</em> (organizado em conjunto com Steve Fraser) e <em>The American Crucible: Race and Nation in the Twentieth Century.</em> Atualmente na Universidade de Cambridge, na Inglaterra, Gary Gerstle é sem dúvida nenhuma um dos maiores nomes da historiografia dos EUA, laureado com os mais relevantes prêmios ao longo de sua trajetória acadêmica no país. Após se notabilizar na História Social, enveredando por questões também caras à História Cultural, como a das identidades coletivas, Gerstle, com o livro em tela, contribui para o ímpeto recente da História Política, especificamente dos estudos sobre as instituições governamentais, tema que não despertou muito entusiasmo nos historiadores de sua geração. </span>

scholarly journals Opening the State House Doors

2019 ◽  
Vol 1 (2) ◽  
pp. 17-44
Author(s):  
Ryan Mulvey ◽  
James Valvo
Keyword(s):  
Executive Branch ◽  
The State ◽  
Public Access ◽  
Freedom Of Information ◽  
Administrative State ◽  
Clear Trend ◽  
Legislative Branch ◽  
Comprehensive Survey ◽  
Basic Level

Freedom of Information (“FOI”) laws apply principally to the executive branch of government and the administrative state. Yet many state FOI statutes also provide access to legislative records, whether they have been created or obtained by individual legislators, committees, or legislative-branch agencies. A comprehensive survey of state FOI laws reveals trends in how such legislative records are treated. A minority of states, for example, categorically excludes legislative records from the scope of disclosure.  The remaining states provide at least some basic level of access, either in explicit terms or implied though judicial or executive-branch interpretation.  In the latter case, the interpretation of an FOI statute often involves consideration of broader context and the interplay of various provisions, including exemptions applicable only to legislative records.  Regardless, the data suggest a clear trend of interpreting state FOI laws to resolve any ambiguity in favor of public access.

Health Policy by Litigation

2020 ◽  
Vol 48 (3) ◽  
pp. 443-449 ◽  
Author(s):  
Katie Keith ◽  
Joel McElvain
Keyword(s):  
Health Policy ◽  
Affordable Care Act ◽  
Executive Branch ◽  
Executive Power ◽  
Future Health ◽  
Legal Challenges ◽  
History Of ◽  
Potential Impact ◽  
The Law ◽  
Trump Administration

Since its enactment, the Affordable Care Act (ACA) has faced numerous legal challenges. Many of these lawsuits have focused on implementation of the law and the limits of executive power. Opponents challenged the ACA under the Obama Administration while supporters have turned to the courts to prevent the Trump Administration from undermining the law. In the meantime, Congress remains gridlocked over the ACA and many other critical health policy issues, leaving the executive branch to adopt its preferred policy approach and ultimately leading to lawsuits. This article briefly discusses the history of litigation over the ACA and some reasons why this litigation has been so enduring. The article then identifies other areas of health policy that are or could be future targets for litigation. Finally, the article comments on the potential impact of the courts on future health reform efforts.

Sign in / Sign up

Export Citation Format

Share Document