A blatant violation of the separation of powers
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny." James Madison wrote these words in The Federalist 47 in 1788 after the Constitutional Convention had deliberately divided the three main powers of government among thr ...
Washington Examiner : Backdoor rulemaking— The government’s obsession with guidance
Federal agencies repeatedly govern Americans through documents that are not supposed to carry the force of law. In theory, these "guidance documents" should merely explain how an agency is interpreting existing statutes and regulations. In practice, however, they often function as a shortcut around the lawmaking and rulemaking processes. That sh ...
Yale Journal on Regulation : Doomsday Predictions About Jarkesy Just Don’t Add Up
In response to the U.S. Supreme Court's 2024 decision in Securities and Exchange Commission v. Jarkesy, a NYU Law Professor wrote in The Atlantic, "Jarkesy continues the Court's attack on the federal government's capacity to do many of its most basic jobs." This captured the sentiment among many who felt that this decision, which affirmed the ri ...
With Jarkesy’s dire consequences unfounded, restoring due process is now both essential and manageable
In 2024, the Supreme Court handed down its ruling in SEC v. Jarkesy and held that when federal agencies seek to punish Americans, those Americans have the right to have their case heard by a real judge and jury—not the agency's own in-house tribunal. Some legal commentators predicted catastrophe. And some law professors warned the decision thr ...
Notice & Comment : Regulation by Adjudication Gives Agencies Maximum Flexibility in Wielding Their Powers
An e-cigarette manufacturer follows an arduous set of standards to get its market applications approved by the Food and Drug Administration (FDA). The company completes the process as outlined, but the FDA still denies its applications. Why? The FDA changed the rules on a dime after the fact, without public input, without following the rulemaking p ...
Sharing administrative judges is prevalent, and it undermines the Constitution
There's an entire quasi-judicial system of administrative law judges (ALJs) within the federal bureaucracy who hear cases brought by agencies against defendants. Often these judges are employees of the very agencies bringing the cases before them, but sometimes they're on loan from other agencies. Very little is known about how this works or how pr ...
A database to track the administrative state like never before
As long as people have governed each other, leaders have passed the mantle of responsibility to others. As far back as 1689, John Locke wrote, "The legislative can have no power to transfer their authority of making laws, and place it in other hands." In other words, legislatures—not bureaucrats—should make laws. But that's been much more of ...
The president’s removal authority is key to the separation of powers
On Monday, the Supreme Court allowed President Trump to fire a member of the Federal Trade Commission (FTC) while lower courts continue to review the firing's legality. This is the latest in a series of firings as the president tests whether he can remove members of independent boards and commissions until a case officially reaches the Court. Co ...
Regulatory oversight with the Congressional Review Act is not enough
If the goal was to restore the constitutional separation of powers, the Congressional Review Act (CRA) has not lived up to expectations. Pacific Legal Foundation research found that for the nearly three decades since it was passed, Congress has used it to overturn just 0.04% of the more than 91,000 rules it's received from federal agencies. Mean ...