David Froomkin

@dfroomkin.bsky.social

5893 Followers 659 Following

Assistant professor, University of Houston Law Center. I write about democracy and the separation of powers. ssrn.com/author=3062912

"The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original intent of our country’s founders requires presidential control, including a power to remove federal officials from their posts for political reasons. Opponents of the theory rely on functional considerations and our practice of dispersing power more widely. But neither side examines developments abroad to see what light other countries’ experience might shed on the question of whether the Supreme Court should craft a new rule of constitutional law cementing presidential control over the executive branch of government. This Article examines that experience, primarily through case studies of recent democratic decline in Hungary, Poland, and Turkey. It shows that centralization of head-of-state control over the executive branch of government provides a pathway to autocracy. Indeed, unilateral presidential control of the executive branch constitutes a defining characteristic of autocracy. In all of these countries, authoritarian leaders secured legislation or constitutional amendments establishing effective head-of-state control over key bureaucracies that usually enjoy substantial independence in a well-functioning democracy, such as the prosecution service, the electoral commission, and the media authority. Autocrats use this power to shield their supporters from prosecution while persecuting political opponents, to tilt the electoral playing field in favor of the ruling party, and to shrink the public space for debate; thus, severely impairing democracy and the rule of law. Realization that the unitary executive paves the way for autocracy reframes the unitary executive debate. We must ask whether the Supreme Court should establish a practice by judicial fiat that authoritarians established through legislation and constitutional amendment...."
“The permanent regulation of the economic process by means of state intervention arose as a defense mechanism against the dysfunctional tendencies, which threaten the system, that capitalism generates when left to itself. Capitalism's actual development manifestly contradicted the capitalist idea of a bourgeois society,' emancipated from domination, in which power is neutralized. The root ideology of just exchange, which Marx unmasked in theory, collapsed in practice. The form of capital utilization through private ownership could only be maintained by the governmental corrective of a social and economic policy that stabilized the business cycle. The institutional framework of society was repoliticized. It no longer coincides immediately with the relations of production, i.e. with an order of private law that secures capitalist economic activity and the corresponding general guarantees of order provided by the bourgeois state. But this means a change in the relation of the economy to the political system: politics is no longer only a phenomenon of the superstructure. If society no longer "autonomously" perpetuates itself through self-regulation as a sphere preceding and lying at the basis of the state—and its ability to do so was the really novel feature of the capitalist mode of production—then society and the state are no longer in the relationship that Marxian theory had defined as that of base and superstructure. Then however, a critical theory of society can no longer be constructed in the exclusive form of a critique of political economy. A point of view that methodically isolates the economic laws of motion of society can claim to grasp the overall structure of social life in its essential categories only as long as politics depends on the economic base. It becomes inapplicable when the "base" has to be comprehended as in itself a function of governmental activity and political conflicts....”
Loper Bright prompted a tidal wave of reaction throughout the legal community when the Supreme Court announced it was overruling Chevron, the most frequently cited Court decision in administrative law. But Loper Bright cannot mean what it says. This article identifies three respects in which the majority opinion’s claim to have overruled Chevron distorts the real substance of the Court’s logic. First, we apply Loper Bright’s framework to the facts of Chevron and show that it would have produced the same outcome—if nothing else, an exceedingly curious result if Chevron were indeed overturned. Second, even as applied to other cases, the Loper Bright framework does not truly depart from the Chevron framework. Chevron’s premise was that Congress had delegated the authority to interpret an ambiguous statutory term in an agency’s enabling statute to the agency. Loper Bright may eschew the word “deference” but without changing the underlying analysis. We show that this kind of wordplay is of little value in making institutional decisions about the allocation of authority. Finally, the very craft of the Loper Bright opinion betrays the perils of the exercise that Loper Bright demands of reviewing courts. Loper Bright instructs judges to identify the “best reading” of administrative statutes, suggesting that an even-handed exercise in recovering semantic meaning can identify extant lines of authority in the administrative state. But the decision rests on an interpretation of the Administrative Procedure Act that is itself selective and slipshod. Ultimately, Loper Bright’s formalist rhetoric turns out to mask what is going on under the hood. When judges substitute their views of what is “best” for those of agencies, arguments about statutory meaning can quickly succumb to choices about policy. Avoiding such an outcome, of course, was one of Chevron’s core aims.
Consider, for instance, the provision of the Immigration and Nationality Act (INA) at issue in Trump v. Hawaii, which grants the President the authority to restrict the entry of aliens if the President finds that their entry “would be detrimental to the interests of the United States.” The finding required by this provision lacks any concrete substance; it confers pure, unbridled discretion upon the President. The Supreme Court in Trump v. Hawaii did not analyze the nondelegation problem (even as it noted that the provision “exudes deference to the President in every clause”), although the Fourth Circuit had observed that “[t]he INA provisions invoked by the Proclamation are similar in critical respects to the statute at issue in Panama Refining, which the Court invalidated on nondelegation grounds.” Indeed, the delegation disapproved in Panama Refining was more constrained, in that it imposed at least a numerical upper bound on the President’s authority to select a policy.201 Under INA section 1182, by contrast, the President could in principle restrict the entry of aliens entirely. Nondelegation analysis ought
Person A: My GAWD these Trump people are racist. Person B: That attitude is what's pushing me to be racist! A: Say what? B: Might as well! You say I'm a Nazi so, fine, I'll be a Nazi if that makes you happy. A: It ... doesn't. B (displaying Nazi uniform): I bought this Waffen SS uniform for Halloween. You'll cry 'offensive' so maybe I'll just wear it every day. B (shaving head and getting swastika tattoo): I just hate to do this. I feel bullied, really.
Once, he walked into the department lounge while I was arguing with several students over women’s ordination. One of the other students referred to Ordinatio sacerdotalis, and told me the question of women’s ordination is no longer permissible to ask. MacIntyre chimed in then, and said “Ah, yes, this question is closed.” (Queue nods and gestures of agreement from all of my interlocutors here.) But then he said, “However, the meta-question - should this question have been closed or should it be reopened - that is another matter.”
When Kieran Healy wrote “fuck nuance,” he understated his point. Nuance is not merely a weakness in theory. Nuance is the antithesis of theory as such. The essence of theory is reductionism. There is a continuum from theory to thick description. The more nuance an account has, the further it moves along the continuum from theory toward thick description. By the same token, all theories are incomplete—because to opt for a theory is to opt against a thick description. Because of the inherent incompleteness of theories, moreover, no theory will ever fully capture the underlying empirical reality. The nature of theory is that multiple theories will always have some fit with the data, because reductionism requires a choice about what features of the data to prioritize. That means that there will always be multiple theories with some empirical purchase. Because multiple descriptions can equally accurately capture important features of empirical reality, choice of theory is an essentially normative enterprise.
"What is the government doing when it 'protects' a property right"? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents."