Who Constrains Presidential Exercise of Delegated Powers?

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the Administrative Procedure Act (APA), leaving no extrinsic, enforceable obligation to avoid arbitrary action. Third, the Supreme Court has barred from review the correctness of any factual finding by the President that provides the statutory trigger for his own power. Finally, a new presidential attitude has ushered in a collapse of the voluntary or informal norms of self-restraint that once offered some modicum of constraint on presidential power. Developments in the Court’s separation-of-powers jurisprudence over decades have opened up a dangerous lacuna in the overall constitutional protection against arbitrary government action, ready to be exploited by any President who might show an inclination to read his or her power as unlimited and unchecked, undeterred by the norms of historical practice. When a President walks upon the stage thus set by prior doctrine, the combination creates a perfect storm for a threat to individual liberty. The following discussion will first examine each element of the problem in the case law as fleshed out by earlier scholars, and then examine the ramifications for the protection of rights today in the center of the storm. I will conclude by suggesting that the nondelegation doctrine should indeed be revived, but specifically for the purpose of limiting, constraining, and reviewing the actions of a President pursuant to direct delegated authority

Book Review: The Interpretable Constitution. by William F. Harris Ii.

Book review: The Interpretable Constitution. By William F. Harris II. Baltimore: Johns Hopkins University Press. 1993. Pp. xv, 208. Reviewed by: Rebecca L. Brown

Formal Neutrality in the Warren and Rehnquist Courts: Illusions of Similarity

I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a dog, I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent. Professor Sherry argues that in the defining areas of racial equality and freedom of speech, the Warren Court and the Rehnquist Court have adhered to identical views about the meaning of the Constitution. They have developed and consistently applied the same informing principle governing a state\u27s obligation with regard to treatment of the individual. That commonly recognized principle is formal neutrality. By requiring a state to remain neutral as between races and viewpoints, both Courts have embraced a common philosophy that renders them equally liberal or equally conservative, Professor Sherry contends. It is wrong, therefore, for the academy to revere the Warren Court as liberal and condemn the Rehnquist Court as conservative, in light of their equal recognition of the appropriate equality principle. She goes on to explain why the legal academy insists on these unfair characterizations despite what she calls the obvious identity between the two bodies of case law. In this Comment, I do not have occasion to consider the question of why the academy might persist in perpetuating an illusory distinction between the Warren and Rehnquist Courts. Instead, I intend to show that it is the asserted identity, rather than dichotomy, between the two Courts that is illusory. The claimed similarity be- tween the jurisprudence of the Warren Court and that of the current Court can be drawn only at the expense of giving full recognition to the deep ideological commitments of both Courts. The characterization of both Courts as endorsing formal neutrality overlooks the powerful philosophical leanings of both Courts and their respective places in prevailing political theory. Once considered in context, the decisions of the two Courts make clear that a theory of identity between them shares a common flaw with the canine/human equation: even if superficially plausible, it utterly fails to account for the soul. Professor Sherry has identified neutrality-defined to mean a state\u27s obligation to treat all races with equal solicitude and all views with equal tolerance-as the touchstone of a liberal, enlightened society. But the role of state neutrality in liberal political theory is itself a contestable and complex question. By turning to a more detailed examination of neutrality as a liberal precept, I hope to show that Professor Sherry has confounded two separate schools of liberal thought and has thus reached some inappropriate conclusions about the two Courts\u27 places in these schools of thought. This analysis leads me to conclude that the two Courts have less in common than Professor Sherry suggests and in fact hold to such different views of racial justice as to warrant fully the dichotomous labels they have received

Decriminalizing Mental Illness: The Need for Treatment Over Incarceration Before Prisons Become the New Asylums for the Mentally Ill

Currently, US prisons are home to 10 times more mentally ill individuals than state psychiatric hospitals. Instead of treating those with mental illness, an extremely vulnerable population is being thrown behind bars. Mental illness is often exacerbated during incarceration, leaving inmates much sicker than when they entered. Moreover, upon discharge mentally ill inmates have virtually no support, making recidivism almost inevitable. This lack of treatment has devastating consequences for the mentally ill as well as the community at large. Removing the mentally ill from jails and prisons would reduce recidivism, increase public safety and save money. The current research explores the circumstances that led to a vast number of mentally ill recycling through our nation’s correctional system. This paper also highlights current jail/prison practices in dealing with the mentally ill. Primary focus is on female inmate populations, who present unique circumstances, needs and concerns. My project has been inspired by 3 years of volunteer work educating inmates at Montgomery County Correctional Facility. This experience has been translated into a collection of vignettes. Stories about the women I have encountered provide concrete cases through which to consider various problems and solutions. My research and firsthand experience has been synthesized into one final piece: a draft for an intervention program for mentally ill female inmates. This program addresses the specific needs of women and introduces ideas for effective changes within our nation’s correctional system

A Government For the People

This essay proceeds in two parts. The first half presents the authors understanding of the major steps in Eisgruber\u27s argument. The second half of this essay will be devoted to discussing both the most troubling aspect of Eisgruber\u27s account, in my view, and its most valuable contribution to a better polity. Both center around his pervasive reliance on the concept of moral judgment

Book review: The Interpretable Constitution. By William F. Harris II.

Book review: The Interpretable Constitution. By William F. Harris II. Baltimore: Johns Hopkins University Press. 1993. Pp. xv, 208. Reviewed by: Rebecca L. Brown