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The Limits of Judicial Control and the Nondelegation Doctrine
Abstract
The nondelegation doctrine has been fought over for decades, yet scholars have not examined a foundational question: Can judicial doctrine materially shape legislative drafting practices Even if a strong nondelegation doctrine provides legislators an incentive to draft narrow statutes, they would have many reasons to persist in broad delegations, and it is not clear whether the doctrinal incentives predominate. Here, I examine the relationship between the nondelegation doctrine and lawmaking behavior at the state level using several novel datasets, including a collection of state session laws between 1990 and 2010, and a comprehensive survey of state nondelegation judicial decisions over the last 20 years. Contrary to the common assumption, I find that the robustness of the nondelegation doctrine appears essentially unrelated to legislative drafting practices. This pattern suggests the limited extent to which judicial doctrine can control legislative practices; it also suggests a revived nondelegation doctrine at the federal level is unlikely to effectuate the hopes of proponents or the fears of opponents.
... 12 Hence, we can identify all agencies (if any) that drew statutory authority for their rules and regulations from each law in our dataset. 13 This approach, which follows Stiglitz (2018), is conservative in 9 Both studies use their estimates to assess other aspects of delegation-for Farhang and Yaver, the extent to which laws that delegate fragment authority across agencies, and for Epstein and O'Halloran, the amount of discretion that Congress provides in laws that delegate. 10 Appendix B provides more details about this law. ...
Delegation is a well-known feature of policymaking in separation of powers systems. Yet despite the importance of this activity, there is little systematic evidence about how many major laws in the United States actually delegate policymaking authority to administrators in federal agencies. Using a database of agency regulatory activity along with text searches, we examine significant US federal enactments from 1947 to 2016 to see which of these laws delegate to agencies. We find that nearly all major laws—more than 99 percent—contain delegation. We also find that the number of agencies receiving delegation in each law has increased over time.
... Sekalipun pada dasarnya esensi dari nondelegation doctrine tumbuh dan berkembang pada negara federal, sebenarnya doktrin ini berkembang dibanyak negara lain. (Stiglitz 2018). Sehingga, asas ini memang tidak dapat diingkari oleh pemangku kekuasaan. ...
Penelitian hukum ini menggunakan statute approach dan conseptual approach. Sehingga, dalam penelitian ini dilakukan analisa, pembahasan serta telaah kritis terhadap berbagai peraturan perundang-undangan yang berkaitan dengan pendelegasian wewenang yang dilakukan oleh Kepala Daerah. Penelitian hukum ini bertujuan untuk menganalisia antinomi dalam Peraturan Bupati Bandung Nomor 17 Tahun 2018 tentang Pendelegasian Wewenang Penyelenggaraan Pelayanan Perizinan dan Non Perizinan Kepada Kepala Dinas Penanaman Modal dan Pelayanan Terpadu Satu Pintu Kabupaten Bandung (selanjutnya disebut dengan Perbup No. 17 tahun 2018) bertentangan dengan asas delegata potestas non potest delegari serta implikasi dari tidak diterapkannya asas delegata potestas non potestas delegari dalam Perbup No. 17 tahun 2018. Untuk itu, penelitian hukum ini memiliki manfaat teoritis dan praktis. Manfaat teoritis penelitian hukum ini berkaitan dengan pengembangan Hukum Administrasi Negara serta Hukum Tata Negara. Manfaat praktis penelitian hukum ini diharapkan berguna dalam penerapan asas delegata potestas non potest delegari terhadap peraturan perundang-undangan, serta sebagai referensi bagi organ pemerintah serta masyarakat luas dan pemerintah yang berkaitan dengan penyelenggaraan pelayanan perizinan dan Non Perizinan. Hasil penelitian hukum ini menyatakan bahwa upaya meratakan Pelayanan Terpadu Satu Pintu (PTSP) yang dilakukan oleh pemerintah berawal dari diberlakukannnya UU Pemda I, yang sebagaimana telah diubah menjadi UU Pemda II. Selanjutnya, pelaksanaan PTSP delegasikan oleh UU Pemda I dan UU Pemda II kepada Kepala Daerah melalui Perpres No. 97 tahun 2014. Setelah itu, munculah Peraturan Bupati Bandung Nomor 17 Tahun 2018. Dalam pelaksanaannya, dilakukan dengan pelimpahan wewenang kepada Kepala Dinas Penanaman Modal dan Pelayanan Terpadu Satu Pintu. Pelimpahan wewenang PTSP tersebut ditengarai melanggar asas delegata potestas non potest delegari (wewenang yang telah didelegasikan tidak dapat didelegasikan kembali). Meskipun demikian, pelimpahan wewenang ini tetap berlaku secara sah. Hal tersebut didasarkan dengan adanya asas praesumptio iustae causa yang artinya suatu keputusan pemerintah harus selalu dianggap benar dan sah sebelum ada keputusan hukum tetap yang menyatakan bahwa keputusan itu tidak berlaku. Implikasi dari tidak diterapkannya asas delegata potestas non potest delegari adalah sejak berlakunya keputusan yang baru (ex nunc).
The stages of determining election results have important characteristics; because it determines the party who wins the election and, at the same time, proves the legality and legitimacy of holding the election. Nevertheless, there are various problems regarding the formulation of policies in criminal acts related to the determination of election results. This research on the formulation of criminal acts associated with election results is normative research with a statutory approach, a conceptual approach, and a comparative approach. This legal research aims to discuss the formulation of the crime of 'late setting election results' and 'not determining election results; while at the same time reviewing future projections by formulating an ideal formulation regarding the formulation of the criminal act of determining election results. The results of the study state that the formulation of criminalization policies in illegal acts related to the determination of election results is regulated to meet various legal problems, including the dimensions of action, the dimensions of criminal responsibility, and the dimensions of criminal sanctions. Then, by taking references from Canada and Kenya, the projections of the formulation are prepared by specifying two objects of action, namely the act of not determining the election results and the act of being late in determining the election results as a crime. Completing the formulation was followed by a complete determination of the subject of a criminal offense accompanied by intentional errors and the formulation of flexibility-based sanctions oriented to avoiding sentencing disparities. KEYWORDS: Criminalization, Criminal Act, Determination of General Election Result
The purpose of this legal research is to analyze the relevance of the discretion of government officials during the COVID-19 pandemic with the concepts and legislation related to legal issues; as well as analyzing the existence of a Circular to legitimize the handling of COVID-19 with statutory regulations. This legal research is carried out by making an inventory of various primary and secondary legal materials, so as to obtain relevant and critical studies of the legal issues discussed. The results of this legal research are that the discretion made by government officials can be justified legally if it is relevant to several provisions contained in legislation for the realization of good emergency governance; and the existence of a circular letter is legally valid if it is in accordance with the laws and regulations and the General Principles of Good Governance, by understanding that a circular is not a product of rules that are in the order of national legislation. Thus, a circular does not have strong and binding legal legitimacy. Therefore, the researcher recommends the criteria and classification of the parameters of discretion in the form of a circular as outlined in the form of a Supreme Court Regulation. This should be done so that there is no abuse of authority in implementing discretionary power by government officials and general legal principles.
The digitization of legal texts and advances in artificial intelligence, natural language processing, text mining, network analysis, and machine learning have led to new forms of legal analysis by lawyers and law scholars. This article provides an overview of how computational methods are affecting research across the varied landscape of legal scholarship, from the interpretation of legal texts to the quantitative estimation of causal factors that shape the law. As computational tools continue to penetrate legal scholarship, they allow scholars to gain traction on traditional research questions and may engender entirely new research programs. Already, computational methods have facilitated important contributions in a diverse array of law-related research areas. As these tools continue to advance, and law scholars become more familiar with their potential applications, the impact of computational methods is likely to continue to grow.
Expected final online publication date for the Annual Review of Law and Social Science, Volume 16 is October 13, 2020. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.
Of all constitutional puzzles, the nondelegation principle is one of the most perplexing. How can a constitutional limitation on Congress’s ability to delegate legislative power be reconciled with the huge body of regulatory law that now governs so much of society? Why has the Court remained faithful to its intelligible principle test, validating expansive delegations of lawmaking authority, despite decades of biting criticism from so many camps? This Article suggests that answers to these questions may be hidden in a surprisingly underexplored aspect of the principle. While many papers have considered the constitutional implications of what it means for Congress to delegate legislative power, few have pushed hard on the second part of the concept: what it means for an agency to have legislative power.
Using game theory concepts to give meaning to the exercise of legislative power by an agency, this Article argues that nondelegation analysis is actually more complicated than it appears. As a point of basic construction, a delegation only conveys legislative power if it (1) delegates lawmaking authority that is sufficiently legislative in nature, and (2) gives an agency sufficient power over the exercise of that authority. But, again using game theory, this Article shows that an agency’s power to legislate is less certain than it first appears, making satisfaction of this second element a fact question in every case.
This more complicated understanding of the nondelegation principle offers three contributions of practical significance. First, it reconciles faithful adherence to existing theories of nondelegation with the possibility of expansive delegations of lawmaking authority. Second, it suggests a sliding-scale interpretation of the Court’s intelligible principle test that helps explain how nondelegation case law may actually respect the objectives of existing theories of nondelegation. Third, it identifies novel factors that should (and perhaps already do) influence judicial analysis of nondelegation challenges.
This article looks at the organization of democratic legislatures. It is argued that the lure of office supports the formation of legislative parties and coalitions. It is noted that much recent theorizing about legislatures start by suggesting a certain structure of agenda-setting powers, before conclusions about various legislative outcomes are derived. A review of related literature is provided, which stresses the differences between veto power and proposal power; and between centralized and decentralized agenda power.
Despite generating thousands of cases on important public issues, the single subject rule remains a source of uncertainty and inconsistency. The root of the problem lies in the inability to define the term "subject" using legal doctrine. This paper reexamines the single subject rule through the lens of public choice theory and finds that its purposes are wrongheaded. Logrolling is not necessarily harmful, and improving political transparency requires legislative compromises to be packaged together rather than spread across multiple acts. Riding is not a form of logrolling but an analytically distinct and more threatening practice. This analysis yields a precise, political definition of "subject" and a new framework for resolving single subject disputes.
With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process, administrative agencies have, in recent years, found themselves deluged in a flood of public comments. In this Article, we argue that this deluge presents both challenges and opportunities, and we explore how advances in natural language processing technologies can help agencies address the challenges and take advantage of the opportunities created by the recent growth of public participation in the regulatory process. We also examine how scholars of public bureaucracies can use this important new publicly available data to better understand how agencies interact with the public. To illustrate the value of these new tools, we carry out computational text analysis of nearly three million public comments that were received by administrative agencies over the course of the Obama administration. Our findings indicate that advances in natural language processing technology show great promise for both researchers and policymakers who are interested in understanding, and improving, regulatory decision-making.
Reports of the death of the nondelegation doctrine have been greatly exaggerated Rather than having been abandoned, the doctrine has merely been renamed and relocated. Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own. These canons forbid extraterritorial application of national law, intrusions on stare sovereignty, decisions harmful to Native Americans, and absolutist approaches to health and safety The nondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.
This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than judicial rules of interpretation. These factors range from the fragmentation caused by the committee system, to the centrality of nonpartisan professional staff in the drafting of statutory text, to the use of increasingly unorthodox legislative procedures each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider. Most of the structural, personnel, and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. The findings undermine the claims of both textualists and purposivists that their theories are most democracy enhancing, because neither makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism's operating assumption that text is always the best evidence of the legislative bargain and suggest more relevant but still formalist structural features that might do better. Our findings further reveal that, although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of the factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, our findings suggest that, for both types of theorists, Chevron now seems too text- and court-centric to actually capture congressional intent to delegate, although that has been its asserted purpose. In the end, our findings raise the question whether the kind of "faithful agent" approach to interpretation that most judges currently employ one aimed at effectuating legislative deals and often focused on granular textual details can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility's pronounced concern with legislative supremacy.
What institutional arrangements should a well-functioning constitutional democracy have? Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. This book moves beyond these debates, changing the focus to institutional design writ small. In established constitutional polities, the book argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, the book carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.
An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one of the legislature's more potent tools to control the administrative state. I focus in particular on lessons we can draw from the "laboratories" of the states. Using a novel dataset of state session laws, I demonstrate that legislatures respond to a judicial invalidation of the legislative veto by augmenting alternative tools of administrative control. I further show that after the loss of the legislative veto, control over administrative agencies seemingly shifted in favor of the legislature, not the executive-an outcome contrary to the expectations of a unitary executive theorist but consistent with a legislative "backlash" to the judicial decision. These findings question a foundation of the unitary impulse present in much recent judicial doctrine and advocate a dynamic perspective in separation of powers doctrine.
A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academics.
A small but growing literature in experimental economics finds that principals can shift responsibility for blameworthy behavior to agents, even when those agents are effectively powerless. Prior work in this field measures blameworthy behavior only indirectly, however. It uses modified dictator games to measure attributions of blame for inequitable allocations of wealth. Yet participants might find inequitable allocations of wealth not blameworthy. Thus, such indirect measures leave open the possibility that prior work is not measuring blame shifting at all. This article corrects for a crucial shortcoming by providing a direct measure of blame-shifting behavior. It reports and discusses first-of-its-kind experimental evidence that shows that principals can delegate to powerless intermediaries in order to evade blame.
In this article, I explore the ramifications of a vetogates model of the legislative process. The vetogates model focuses on the many points in the legislative process where proposed
legislation can be stopped (vetoed). A political system where statutes must pass through a variety of filters, each motivated
by somewhat different incentives and interests, is one where (1) statutes are hard to enact; (2) statutes that are enacted
will tend to have compromises, logrolls, and delegations; and, (3) once enacted, statutes are hard to repeal. These consequences
represent a significant cost of the vetogates model to our system of governance, but they also carry some potential benefits.
I explore the ramifications of the vetogates model for legal doctrine. For example, the vetogates model supports judicial
consultation of legislative history in statutory cases and suggests the virtue of deliberation-rewarding canons for judicial
review of agency statutory interpretations.
Existing theories of legislative delegation to bureaucracies typically focus on a single legislature, often the U.S. Congress. We argue that this parochial focus has important limitations. If one contends that politicians respond rationally to their political environment when adopting strategies for controlling bureaucrats, then theories of control should be able to explain how differences in the political environment-and in particular in the democratic institutional arrangements that shape this environment-influence strategies for controlling bureaucrats. We offer such a theory about the conditions under which legislatures should rely on statutory control (i.e., detailed legislation) in order to limit the discretion of agencies. The theory focuses on the interactions of four factors: conflict between legislators and bureaucrats, the bargaining costs associated with choosing the institutions for controlling bureaucrats, the professional capacity of legislators to create institutions for control, and the impact of political institutions on the relative costs and benefits of statutory and nonstatutory strategies of control. We test our argument using legislation from 1995 and 1996 that affects Medicaid programs. The results show that legislatures are more likely to make use of statutory controls when control of government is divided between the two parties, the two chambers of the legislature are unified in their opposition to the executive, the legislature is more professionalized, and the legislature does not have easily available options for nonstatutory control.
In recent years, the failure of administrative agencies to implement congressional programs faithfully and effectively has called into question the wisdom of the central institutional innovations of the New Deal: the expansion of the regulatory state and the shift in power from the states to the federal government. In this Article, Professor Sunstein challenges the New Deal more fundamentally, examining not only the institutional changes themselves, but also the shift in constitutional commitments that underlay those reforms. Professor Sunstein identifies three aspects of New Deal constitutionalism: the rejection of the original constitutional commitment to checks and balances in favor of independent and insulated regulatory administration, the recognition of substantive entitlements beyond those protected at common law, and the abandonment of principles of federalism that vested regulatory authority in both the federal government and the states. Professor Sunstein argues that many of the present failures of regulatory administration - particularly the problems of agency capture and factionalism - can be traced to the New Deal's failure to incorporate the original constitutional commitment to checks and balances into regulatory administration. The remedy, he suggests, is to reinvigorate the commitment to checks and balances through a system of coordinated review of agency action that includes a strong supervisory role for each of the three branches of government - the executive, the judiciary, and Congress. In addition, Professor Sunstein maintains that the protection of new entitlements during the New Deal was a natural and justified outgrowth of the recognition by New Deal reformers that the common law itself favors some social interests over others. He suggests that this substantive aspect of the New Deal should be incorporated into modern public law, in which common law categories persist despite the insights of New Deal reformers. Finally, Professor Sunstein argues that the third aspect of New Deal constitutionalism - the emphasis on national rather than local control of regulatory issues - has been carried too far, depriving citizens of the opportunity to participate meaningfully in the debate over the terms of their social life.
To fully understand the motives for delegating a decision right, it is important to study responsibility attributions for
outcomes of delegated decisions. We conducted laboratory experiments in which subjects could either choose a fair allocation
or an unfair allocation or delegate the choice, and we used a punishment option to elicit responsibility attributions. Our
results show that, first, responsibility attribution can be effectively shifted and, second, this can constitute a strong
motive for the delegation of a decision right. Moreover, we propose a simple measure of responsibility and show that this
measure outperforms measures based on inequity aversion or reciprocity in predicting punishment behaviour.
In this article, I revisit a widely used measure of legislative professionalism that I developed over a decade ago (Squire 1992a). I argue that professionalism has different implications for legislators than for legislatures and that the concept is distinct from careerism. I then discuss the mechanics of compiling the measure, its reliability and validity, and potential criticism of the measure. Finally, I provide scores on the measure for 1979, 1986, 1996, and 2003, as well as scores for 1979 and 2003 for a revised measure that is theoretically appropriate for use in dynamic analyses.
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship. Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress. All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how "neutral" some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.
I know David Schoenbrod, and he is no Owen Fiss. Yet, if the United States Supreme Court were to resurrect the nondelegation doctrine as Professor Schoenbrod proposes, it would radically increase judicial power over vast areas of American life at the expense of the "political" branches (as we quaintly call them). Fiss, my beloved but occasionally misguided colleague, would probably applaud this change, but Professor Schoenbrod, usually so sensible about such things, would surely deplore it. Fortunately, the Court is most unlikely to adopt Professor Schoenbrod's perverse proposal. Besides, even if the Court did revive the nondelegation doctrine, it would surely want to neuter it. Like Buddy, our First Dog, the Court lacks the balls to do what the doctrine would require. So much the better for the Court-and for the rest of us (though not for poor Buddy).
William Eskridge's Dynamic Statutory Interpretation provided a foundation for a second generation of scholarship, which aims to assess the empirical basis for various interpretive methodologies, including Eskridge's own dynamic statutory interpretation. Many working in this second generation of scholarship have turned to studies of government institutions so that we can understand their capabilities and limitations and develop more satisfying theories of institutional choice and institutional design. One recent trend in the federal legislative process that has institutional implications for Congress and may therefore affect statutory interpretation is the rise of omnibus legislation. This essay provides a beginning assessment of this legislative process and relates omnibus lawmaking to Eskridge's analysis in Dynamic Statutory Interpretation. First, the essay briefly discusses the rise of omnibus legislation at the federal level. Second, it assesses how an awareness of unusual aspects of omnibus lawmaking might lead us to revise our view of certain tools of statutory interpretation, particularly the canons of construction. Finally, it concludes with some thoughts about whether the challenges posed by omnibus laws put too great a burden on the institutional capacities of courts, a question analyzed in a related context in the concluding pages of Dynamic Statutory Interpretation.
Among countries colonized by European powers during the past 500 years, those that were relatively rich in 1500 are now relatively
poor. We document this reversal using data on urbanization patterns and population density, which, we argue, proxy for economic
prosperity. This reversal weighs against a view that links economic development to geographic factors. Instead, we argue that
the reversal reflects changes in the institutions resulting from European colonialism. The European intervention appears to
have created an “institutional reversal” among these societies, meaning that Europeans were more likely to introduce institutions
encouraging investment in regions that were previously poor. This institutional reversal accounts for the reversal in relative
incomes. We provide further support for this view by documenting that the reversal in relative incomes took place during the
late eighteenth and early nineteenth centuries, and resulted from societies with good institutions taking advantage of the
opportunity to industrialize.
Scholars argue that electoral uncertainty is a crucial factor that influences policy implementation: current holders of public authority, nervous that they might lose their position, seek to insulate the agencies they create so that policies will survive their creators. These theories, however, ignore crucial variation in the electoral prospects of groups competing for public authority. In this paper, I examine the effect of electoral volatility on the degree to which groups in power will dismantle their opponent's agencies and programs and insulate their own policies from such destructive behavior. Through the analysis of two repeated games, I derive four propositions which fully characterize the conditions under which cooperative behavior can provide stability in the face of electoral uncertainty and instability. First, I show that if gains from cooperation are sufficiently large, compromise and cooperation can occur in the face of uncertainty. Second, I show that electoral uncertainty increases the possibility of cooperation, a result counter to the informal literature. Third, when electoral uncertainty is low, only one group—that with a low probability of electoral success—will insulate their programs. Finally, as electoral uncertainty increases, a wider set of the parameter values support the extreme cases of either both insulating or not insulating. I conclude by discussing some implications, examples and potential further extensions of the models.
In this path-breaking book, David Epstein and Sharyn O'Halloran produce the first unified theory of policy making between the legislative and executive branches. Examining major US policy initiatives from 1947 to 1992, the authors describe the conditions under which the legislature narrowly constrains executive discretion, and when it delegates authority to the bureaucracy.
An independent judiciary with the power to constrain the executive and legislative branches is commonly thought to be the foundation of government under the rule of law. However, it is not obvious why those with political power would ever tolerate the constraints imposed by an independent court. I offer an explanation for independent judicial review that is based on ongoing political competition between risk-averse parties. An independent judiciary is a mechanism through which these political competitors can enforce mutual restraint. But support for independent judicial review is sustainable only when (1) the political system is sufficiently competitive, (2) judicial doctrine is sufficiently moderate, and (3) parties are both sufficiently risk averse and forward looking. I employ a simple formal model to show how these variables influence the political sustainability of independent judicial review, and I also present the results of a preliminary empirical test that confirms the central hypotheses.
To understand and assess the impact that the law has on judicial decision-making on the U.S. Supreme Court, one must disentangle the effects of law and policy preferences. In this paper, we elaborate the fundamental character of this challenge, and then present a novel approach to measuring the effect - if any - of the law on justices' decisions. Key to our approach is the use of positions taken by political actors outside of the court who put less emphasis on legal considerations. The positions taken by these actors allow us to pin down policy elements of voting. We use these elements to identify statistically the effects of legal forces including adherence to precedent, judicial restraint in the form of deference to Congress and a strict interpretation of the First Amendment's protection of speech clause that may guide judicial decision-making. The evidence suggests that legal factors play an important role and that their effects vary across the justices in interesting ways.
This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with Federalist and Antifederalist separation of powers principles, respectively. Once the contrast is drawn, the Article develops a descriptive explanation for this divergence in jurisprudential approach. After discussing the pitfalls of common American heritage, textualism, and culture-based approaches to interpreting separation of powers in state constitutionalism, the Article presents institutional analysis as a better explanation for divergences in interpretive approach. Specifically, the Article discusses institutional design in the legislative and executive branches of states, and its interrelationship with faction and capture of the agency decisionmaking process. Attention to institutional design can explain adherence to the nondelegation doctrine in many states, and can also explain the explicit and sweeping presence of legislative vetoes in some states. In addition, attention to institutional design features and their interrelationship with faction in the decisionmaking process can help to shed light on doctrinal nuances of state court approaches to upholding and striking certain delegations, such as delegations to private boards and to federal agencies. Thus, an appreciation of the role of institutional design is a necessary predicate to the development of an independent state theory of separation of powers.
This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.
Of the American Constitution's three most distinctive features-federalism, judicial protection of individual rights and separation of powers-only the last has been held inapplicable to the states. First, federalism is, by its terms, a doctrine of power-sharing between the national and state governments. The distribution of authority between nation and states was the chief point of contention during the period of the Constitution's framing and ratification, and in recent years, the United States Supreme Court has vigorously enforced federalism norms. Second, although the original Constitution contained relatively few individual rights provisions applicable to the states, during the last half-century, the Supreme Court has interpreted the Due Process and Equal Protection Clauses of the Fourteenth Amendments as providing extensive protection for individual rights against state interference. Yet separation of powers remains aloof. Despite the Supreme Court's willingness to impose sometimes rigid formal rules on the branches of the federal government, the Court has not found justifiable limits on the states' choice of governmental structures.This article uses Rhode Island's current controversy surrounding legislative appointments to executive commissions as a vehicle for (re-)examining the role of the federal Constitution in state separation-of-powers disputes. Part I examines the United States Supreme Court's frequent claim that the separation-of-powers principle does not apply to the states. It shows that several provisions of the federal Constitution assume a significant difference between the branches of state government, and concludes that some measure of separation of powers in state government is therefore a structural requirement of the federal Constitution.
This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than continue to use nondelegation as a stalking horse.
Society can sometimes make itself better off by appointing a central banker who does not share the social objective function,
but instead places “too large” a weight on inflation-rate stabilization relative to employment stabilization. Although having
such an agent head the central bank reduces the time-consistent rate of inflation, it suboptimally raises the variance of
employment when supply shocks are large. Using an envelope theorem, we show that the ideal agent places a large, but finite,
weight on inflation. The analysis also provides a new framework for choosing among alternative intermediate monetary targets.
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