Clarence, just finished the article (and remember this was pre Seila Law and Collins and ACB appointment), I learned quite a bit, and one of the most thorough indictments of the 4th Branch of Government I have ever read! Thanks again, recommend any others?
"In short, by traveling from Schechter to Chevron, the Supreme Court has
profoundly undermined the democratic accountability central to the
Constitution’s conception of self-government. To be sure, there are
arguments for why lawmaking is best left in the hands of the unelected. Some
say bicameralism and presentment take too long. Some say elected officials
lack the necessary expertise.381 Some say the people are too likely to elect
poor policymakers.382 I do not agree with these arguments. More to the point,
I do not believe the Constitution allows for them. And the thesis of this
Article is that the Supreme Court no longer believes it either.
So what will the Court do? In short term, as described above, I expect the
Supreme Court to create exceptions to permissible delegation,383 exceptions to Chevron deference,384 and exceptions to Humphrey’s Executor.
385 Then,
over time, the exceptions will likely swallow the rules.
If so, major delegations will be limited to delegations that include detailed
guidance from Congress. Major rules will not receive Chevron deference and
may instead require a clear statutory statement authorizing them. Minor rules
will require authorization from the best reading of the statute, which may or
may not be read to delegate minor policy-making decisions to the agency,
depending on the statutory language and structure. And for-cause removal
restrictions will be limited to agencies like the Federal Reserve, where
reliance interests in Humphrey’s Executor’s stare decisis effect are unusually
strong.
Leading the way will be Justice Brett Kavanaugh, whose extensive
writings in these areas show an extreme sensitivity to the relation between
separation of powers, democratic accountability, and liberty. As Professor
Jonathan Adler recently wrote, “In Brett Kavanaugh, President Trump may
not have found a justice to ‘deconstruct the administrative state’—in Steve
Bannon’s formulation—but he has found one who will help bring it to
heel.”386
Of course, Justice Kavanaugh and his like minded colleagues will be able
to go only as far as the cautious Chief Justice John Roberts will travel with
them. His writings do not display Kavanaugh’s blatant disgust with what
makes the administrative state so democratically unaccountable. But
Roberts’s writings do reveal a skepticism of the administrative state’s
excesses, an openness to limiting the precedents that have fueled those
excesses, and, I believe, a willingness to severely cut back on each of those
precedents once they are ripe for reconsideration.
Their days are not over. But they are numbered. And with Justice
Kavanaugh’s ascension to the Supreme Court, that number looks smaller than
ever."
