Chevron Meets Youngstown: National Security and the Administrative State

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after 9/11: Chevron-backers argue that the Court failed to accord sufficient deference to the President, while Chevron-detractors argue that the Court failed to clarify the scope of individual liberties. However, neither side appreciates the role that Justice Jackson’s seminal Youngstown concurrence has played in the Court’s resolution of recent national security cases. Youngstown makes congressional legislation – not Executive power or individual rights – the central judicial concern in cases pitting individual liberty against Executive power. The post-9/11 Supreme Court, following Justice Jackson, has used judicial review to catalyze congressional action by remanding to Congress policy questions lacking joint political branch support. This dual-branch theory of governance preserves a critical rule-of-law basis for judicial review of national security decisionmaking that Chevron’s backers and its detractors overlook

The incomplete transformation of institutions of economic policy: from clientelism to competition?

Economic policy in Turkey has gone through significant amount of transformation in the last three decades. While Turkey used to be a closed economy governed by an import-substitution industrialization strategy, starting in the early 1980s it went through substantial liberalization and privatization, and the market mechanism has gained increased importance in the allocation o

The role of fiscal delegation in a monetary union: a survey of the political economy issues

Current proposals to address the European sovereign debt crisis envision some sort of fiscal union to complement the Economic and Monetary Union, backed by stronger sanctions against countries that deviate from budget balance. We argue that sanctions are an indirect approach to balancing budgets, and that member states, and Europe as a whole, could instead consider delegating effective fiscal instruments with a direct budgetary impact to an independent authority. Outside of a fiscal union, a solvent country could establish an independent fiscal authority at the national level, with a mandate to maintain long-term budget balance. Delegating a few powerful fiscal instruments to an institution of this type could cut off speculation about fiscal sustainability without ceding sovereignty to a supranational body. Inside a fiscal union, delegating one or more fiscal levers of each Eurozone member state to a national or European fiscal authority could eliminate moral hazard without relying on sanctions per se. Many fiscal instruments can serve to balance budgets, but in the context of a monetary union the chosen instrument should ideally be one that increases competitiveness when recession looms. The instrument should also be one that is quick and simple to adjust, with a large budgetary impact and minimal redistributional consequences. For consistency with these criteria, we argue that fiscal adjustments should operate on the spending side, rather than the revenue side, and that spending adjustments should affect the prices the government pays, instead of the quantities of goods and services it purchases. We discuss in detail how a system of this sort could be implemente

Fiscal Rules and Fiscal Performance in the EU and Japan

Fiscal rules specify quantitative targets for key budgetary aggregates. In this paper, we review the experience with such rules in Japan and in the EU. Comparing the performance of fiscal policy in the 1980s and 1990s until 2003, we find that the fiscal rule of the 1980s exerted some but not much disciplinary influence on Japanese fiscal policy. The fiscal rule of the Maastricht Treaty had a significant impact on political budget cycles in the EU, but did little to constrain fiscal policy in the large member states. Since the start of the European Monetary Union, the disciplinary effect of the fiscal rule in the EU has vanished. Next, we discuss the importance of budgetary institutions for the effectiveness of fiscal rules. In Europe, a number of countries adopted strong fiscal rules, i.e., a fiscal rule combined with a design of the budget process enabling governments to commit to the rule. We find that strong fiscal rules have been effective. We conclude with some suggestions for the design of a strong fiscal rule in Japan

The new EU economic governance: vertical and horizontal power shifts

The euro crisis made visible the omitted stage in the European integration process. The EU jumped from the common market straight to the monetary union, neglecting the formation of the economic union. The new EU economic governance is a combination of a vertical shift of competences, i.e. from one level of government to another level, and a horizontal shift of powers and competences, i.e. from elected governments to unelected government bodies entrusted with (parts of) government policies, from discretionary policy towards rules. In both types there is a risk of accountability problems, although of a different kind. The purpose of this paper is to analyze the new EU economic governance within the conceptual framework of these vertical and horizontal shifts. This two-dimensional approach offers a better analytical tool than the more traditional one-dimensional fiscal federalism approach. In the first part of the paper the focus is on the policy domains that are the objects in the shifting process. Budgetary policy mainly is at stake, but also banking regulation and monetary policy are partly involved. The second part of the paper deals with the relevant aspects of the theories on the division of powers along vertical and horizontal lines. The fiscal federalism approach to vertical separation and the time consistency theory on the horizontal distribution of power are briefly exposed. In the third part the power shifts occurring within the new EU economic governance are presented and defined in terms of our framework of vertical and horizontal power shifts. Finally the accountability problems of these shifts are analyzed

Refinement for Administrative Policies

Flexibility of management is an important requisite for access control systems as it allows users to adapt the access control system in accordance with practical requirements. This paper builds on earlier work where we defined administrative policies for a general class of RBAC models. We present a formal definition of administrative refinnement and we show that there is an ordering for administrative privileges which yields administrative refinements of policies. We argue (by giving an example) that this privilege ordering can be very useful in practice, and we prove that the privilege ordering is tractable

Constraint through Delegation: The Case of Executive Control over Immigration Policy

This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law\u27s core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set visa policy-an avenue increasingly contemplated by reformers. Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime\u27s dysfunction, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel that is helpful in thinking through what it would mean to delegate ex ante admissions power to the executive