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Presidential Supremacy Over Administrative Agencies
No full textIn the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.
In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as ‘unitary executive theory’ which, in its pure form, holds that the President has the inherent power to fully control all federal agencies, regardless of statutory design. Such presidential supremacy, in a break with history, converts ‘independent’ agencies into ‘executive’ agencies, significantly increasing the role of White House staff in their operations. It also changes how all departments and agencies operate, with less insulation for their adjudicatory proceedings and less protection for civil servants.
In this chapter, we examine what these changes may mean for the economy. We build on the broad economic research consensus on the value of agency autonomy in central banking (a consensus that is generally shared by political observers and policymakers in both parties). While that research focuses on monetary policy, we think it also bears on how increased presidential control may affect other economic agencies and, in turn, the economy
\u3cem\u3eSkrmetti\u3c/em\u3e Beyond Scrutiny
No full textIn United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care. For the first time, the Court considered a fundamental question in civil rights law: How does the Fourteenth Amendment regard transgender people? The Court gave little guidance. It did not sort out principles for deciding when anti-transgender discrimination classifies by sex, nor whether transgender people are a suspect class. Instead, the Court held that “[i]n the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny.” It turned a question of equality into an exercise in deference
Redefining Law in China
No full textAlthough there is a growing body of literature on the role of law under authoritarian regimes, scholars have paid little attention to authoritarian legal ideology or conceptions of legality in contemporary authoritarian states. This Article presents the first in-depth study of the Chinese Communist Party’s recent novel attempt to introduce and implement an official legal ideology under the banner of “Xi Jinping’s Thought on the Rule of Law,” one which aims both to create a definitive theory of law and to offer a guide to China’s legal development. We examine four principal components of this legal ideology: the theoretical definition of the relationship between law and the Party; the push towards Party-led non-litigation dispute resolution that de-emphasizes courts; efforts to increase the extraterritorial reach of Chinese law and to boost China’s influence in transnational law and legal institutions; and attempts to integrate both Party-defined morality and the Party’s own internal rules and regulations into the legal system and the definition of legality. Through these efforts, the Party is attempting to provide a new definition of legality, one that is coextensive with Party authority and derives from the Party’s internal normative sources. As a result, legality becomes a vehicle for the Party to consolidate its legitimacy and assert its supremacy. Examining contemporary Chinese legal ideology carries methodological implications, highlighting the importance of understanding how authoritarian systems conceive of and define law so as to better evaluate the functions of law under authoritarianism. Understanding this new legal ideology also reveals how the definition of law is increasingly contested, in particular as liberal conceptions of legality encounter new challenges both within liberal democracies and globally
BU S4E4
No full textPhoto of Mary Jo White, litigation partner and senior chair at Debevoise & Plimpton.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1045/thumbnail.jp
Beyond Unprecedented S4 Ep4: Trump 2.0: Anticipating the Future of the SEC
Full text linkFormer chair of the U.S. Securities and Exchange Commission (SEC) and current Debevoise & Plimpton partner Mary Jo White ’74 discusses what to expect from the SEC in the second Trump administration — including the changes that a more conservative commission might make to existing rules and enforcement policies and the relationship between the SEC and U.S. Department of Justice.https://scholarship.law.columbia.edu/beyond_unprecedented_4/1004/thumbnail.jp
Regionalism and the Federal Reserve Banks
Full text linkRegionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape monetary policy, produce original research, respond to local economic concerns, understand regional economic conditions, and connect local banks, households, and businesses to policymakers in Washington.
This Essay examines the regional aspect of the FRBs, highlighting their strengths and identifying areas in need of reform. It distinguishes between three types of regionalism: regional policy variation, in which federal policy differs region to region; regional policy formulation, in which regional voices contribute to setting federal policy; and regional policy implementation, in which regional bodies carry out federal policy. Today’s financial system is national and interconnected. As a result, regional policy variation makes less and less sense. The trend of shifting decisions that once belonged to the FRBs to national bodies (such as the Board of Governors of the Federal Reserve or the Federal Open Market Committee) should be continued, and Congress should clarify that it is these bodies that have final say over matters such as access to the payment system. At the same time, regional voice and implementation should be retained. The Open Market Committee, on which the presidents of the FRBs serve, is a critical mechanism for incorporating regional perspectives into the development of uniform, national policy, and the FRBs carry out these policies at a regional level in ways that enhance legitimacy, improve efficacy, and promote resiliency
\u3cem\u3eLoper Bright\u3c/em\u3e and the Great Writ
Full text linkChevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.
“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.
How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.
This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.
Constitutional text and history make the wrongness even clearer. The Framers wrote the Constitution precisely to quell the “violence of faction” that the States exhibited under the Articles of Confederation. They understood faction to produce “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.” So the Framers resolved to bind “the judges in every State” to treat the Constitution as the “supreme Law of the Land”; and the Framers gave federal judges — protected by life tenure and irreducible salaries — the “judicial Power” to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions. Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress’ or state courts’ reasonable-but-wrong constitutional judgments as “treason to the Constitution.”
New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect “small” businesses and “the citizenry” against politics and special interests. The test of their bona fides is whether they will take the same course in cases of individuals like William Packer and Joshua Frost, both convicted and sentenced to prolonged imprisonment through “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.
Completing ICWA’s History
Full text linkWhen the Supreme Court, in Brackeen v. Haaland, upheld the Indian Child Welfare Act (ICWA) — federal legislation making it harder for child family regulation (a.k.a. child protection) agencies to separate Indigenous children from their parents — it centered Congress’s effort to remedy a long history of unwarranted separations of Indigenous families
Beyond Issuers: The Future of Private Securities Litigation
Full text linkPrivate securities litigation has traditionally been viewed as a subfield of corporate governance, reducing agency costs by disciplining wayward management. In this brief Symposium essay, I argue that the future of private securities litigation lies beyond issuers. I discuss how a fraud claim under Rule 10b-5 can be understood as a kind of economic tort, and set out, in broad strokes, an economic analysis of claims against non-issuer defendants. I then consider emerging trends in the case law against non-issuers in social media and market manipulation cases. I conclude by identifying some challenges and opportunities for securities litigation in a “beyond issuer” era
Igniting Action to Reduce Gas Flaring: Real Opportunities. Real Projects. Real Results.
Full text linkGas flaring is a major global challenge. Despite bold commitments from governments, national oil companies (NOCs), international oil companies (IOCs), and leading independents, global flaring levels have stagnated at around 140–150 BCM per year, emitting up to 1 billion tonnes of CO2-equivalent greenhouse gases annually, while representing as much as $30 billion per year in potential lost revenue.
Numerous studies have outlined how flared gas can be captured and monetized – through power generation, fertilizers, petrochemicals, LNG and pipeline exports, among other use cases. Substantial reductions in flaring are not only technically achievable but can often create significant commercial value with attractive returns. Compared with other levers, reducing gas flaring is a material decarbonization “quick win.”
This report, co-authored with Capterio and generously supported by the Grantham Foundation, illustrates the potential to reduce flaring with six case studies, going beyond analyzing the “what” and “why” of flaring, and focusing on the “how” to unlock and accelerate delivery. Three project-based case studies present projects that have successfully captured and utilized associated gas in countries and regions that are not among the global leaders in flare reduction (Angola, the Kurdistan Region of Iraq, and Argentina - links coming soon). Three country-based case studies (Federal Iraq, Egypt, and Algeria - links coming soon) highlight not only where modest progress in flare reduction has been observed, but also where opportunities to do more can and should be developed