Ain't it the truth!

Thanks, David. I appreciate it.

The best thing I've seen on this tension: bclawreview.bc.edu/articles/3117. Personally, I think the unitary executive and MQD work as a tag-team that permits the Court to choose a preferred outcome: presidentialism in most cases, invalidation of "major questions" when the policy is disfavored.

(5/5) But, we argue, the Roberts Court’s version lacks guardrails and meaningful theoretical limits. We offer a critique of the MQD's application and a theory of administrative review that suggests a way forward.

Feedback on either/both pieces is appreciated and welcome!

(4/5) “Legality” shows that, surprisingly, the controversial MQD, recently used by the Roberts Court to invalidate “major” actions by agencies, has near-exact analogues in other global jurisdictions like Germany, Israel and the UK, playing a critical role in reining in executive branch overreach.

(3/5) For many reasons, I argue, we must push back on this project.

(2/5) “Lochnerism” argues that, like Lochner, the Roberts Court invokes self-made higher-law principles—this time, to build a new separation of powers: a dominant president, a constrained Congress, subordinated agencies, and a judiciary as the final umpire of what the separation of powers means.

Ofc the giant question is whether decisions like Loper Bright construing the APA and limiting agencies will affect SCOTUS’s reading of Article II to limit presidential power. Good news: Most statutes delegate their implementation to agencies. Bad news: civil service laws delegate directly to Prez.

What this means, in today’s terms: much of what we are used to thinking of as “inherent” or “natural” powers of the President were, in fact, put there by Congress. So efforts by today’s Supreme Court to wall off the President from control by Congress and statutes are ahistorical and dangerous. (3/3)

That included things like control over foreign policy, land use/conservationism, antitrust, tariffs, immigration, the military, and other facets of domestic policy. Consider it a period of interbranch cooperation, not Congress rolling over. (2/3)