On Dollars and Deference: Agencies, Spending, and Economic Rights

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands. This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States

On Dollars and Deference: Agencies, Spending, and Economic Rights

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands. This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States

Notice and the New Deal

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas—federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice—which includes the doctrines of vagueness, retroactivity, and the rule of lenity—evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks. Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court\u27s notice jurisprudence—Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state. Like much of the New Deal settlement, the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates—and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines

Control design and simulation of systems modeled using ADAMS

A technique for control design and simulation using the ADAMS software and a control design software package is presented. For design of control systems ADAMS generates a minimum realization linear time invariant (LTI), state space representation of multi-body models. This LTI representation can be produced in formats for input to several commercial control design packages. The user can exercise various design strategies in the control design software to arrive at a suitable compensator. The resulting closed loop model can then be simulated using ADAMS. This procedure is illustrated with two examples

Perceptions of Immigrant Criminality: Crime and Social Boundaries

Researchers studying the relationship between immigration and crime frequently note the discrepancy between actual rates and public perceptions of criminal behavior by immigrants. Analyzing staff‐ and reader‐generated texts in a local newspaper, we find that this connection is maintained through a conflation of key terms, assumptions of the legal status of immigrants, and a focus on high‐profile criminal acts. We argue that the discourse of immigrant criminality has been critical in constructing social boundaries used in recent immigration legislation. Our analysis helps explain why current scholarly findings on immigration and crime have had little influence in changing public opinion