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The Rise and [?] of Anti-Administrativism
No full textScholars have proclaimed the administrative state to be “Under Siege” or subject to a “Never-Ending Assault.” Was the election of President Donald Trump on November 5, 2024, the sixth, if not yet the seventh, day around the walls?
This seems an appropriate time to consider the present and future of opposition to the administrative state—something that has come to be dubbed “anti-administrativism.” The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this “anti-administrativism”? Without knowing the answer to that seemingly simple question, one cannot accurately describe, defend, critique, or bemoan it. Accordingly, my aim in this essay is to provide some clarity about the various strains of anti-administrativism and to offer some thoughts about the future of one specific strain within that broad family of ideas: the constitutional case against the administrative state.
Part I of this essay briefly surveys the history of the past thirty years regarding challenges to the administrative state.
Part II identifies three distinct strains of anti-administrativism, rooted in concerns about, respectively, the extent of the federal government, the form of the federal government, and the constitutionality of the federal government. These strains might well overlap in many cases, but they are conceptually distinct. One can endorse or critique one without endorsing or critiquing the others, and the kinds of arguments that one would make for or against claims within each strain might have no force, or even relevance, to claims within other strains. Thus, any clear discussion of anti-administrativism must pay close attention to which variety of anti-administrativism is on the table at any given moment.
Part III focuses on the constitutional case against at least some key features of the administrative state. The goal is not to rehash familiar arguments but to identify possible gaps in the besieging forces by highlighting some areas in which originalist scholarship needs additional work. I focus on subdelegation of legislative power, presidential control of executive administration, and the reach of judicial power, all of which raise questions that originalists have not wholly answered, in large part because they have not always been asking the right questions
Standing in the Dark
No full textDemonstrating standing for injunctive relief in § 1983 police misconduct cases is undisputedly difficult for civil rights plaintiffs. Under City of Los Angeles v. Lyons, plaintiffs seeking injunctions must present more than evidence of past misconduct; they must show a significant ongoing risk that they will experience the same misconduct again. Scholarly attention to Lyons has focused primarily on doctrinal errors in the Court’s legal analysis, and for good reason. But the case raises another important yet overlooked question: Can civil rights plaintiffs realistically demonstrate risk of future harm given (a) the limited data kept by law enforcement about their own activities, and (b) procedural barriers to obtaining that data, even with broad civil discovery?
The answer is, in most cases, no law enforcement record-keeping practices, combined with various procedural rules and doctrines that constrain discovery, make meeting the Lyons standard exceptionally difficult. The asymmetry between what plaintiffs must show to demonstrate standing for an injunction, on the one hand, and what evidence is practically available at various procedural stages, on the other, often results in dismissal of injunctive relief claims. Plaintiffs seeking institutional reform of the police through litigation are “standing in the dark:” They must attempt to prove standing without the information necessary to do so. Rather than promoting federalism, as Lyons claims, the decision diminishes the role of the judiciary as a check on state actors’ repeated abuse of power.
In this paper, I argue that the incongruence between equitable relief standing doctrine and the existence and availability of law enforcement records provides a practical, rather than doctrinal, reason for the Court to revisit Lyons and the rights-constraining impact that case has had. By introducing a typology of post-Lyons cases and exposing flaws in police record-keeping practices and various doctrinal rules preventing disclosure of the limited records that do exist, I set out exactly why the Lyons standard has proved mostly unobtainable, and what we can do about it. In the absence of complete abrogation of Lyons—an unlikely event—I propose other possible interventions, including state and federal legislative and rule reforms aimed at increasing documentation and transparency of police activit
Popular Originalism
Full text linkScholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the time of its ratification, popular meaning draws on sources of authority outside the courts to capture the constitutional views of the American people today. In this Article, I demonstrate how interpreters might draw on the Constitution’s popular meaning to help build an interpretive approach that bridges the divide between originalism and popular constitutionalism. While these theories may be in some tension—with originalism seeking to preserve the past and popular constitutionalism trying to realize popular self-governance today—I argue that it’s possible to be both an originalist and a popular constitutionalist. Building on new originalist scholarship (including Jack Balkin’s famous account of living originalism), one might agree to be bound by the Constitution’s original meaning, while still using popular meaning to craft a rule of construction when the Constitution’s legal meaning runs out. I refer to this approach as popular originalism. In response to some of popular constitutionalism’s most vocal critics, popular originalism represents one way to make popular constitutionalism work inside the courts
The BYU Advocate
Full text linkBYU Law prioritizes the development of both capacity and character. As our mission statement declares, \u27we seek to be and develop people of integrity who combine faith and intellect in lifelong service to God and neighbor.\u27
– David H. Moorehttps://digitalcommons.law.byu.edu/annual_reports/1015/thumbnail.jp
Religious Freedom as Freedom
Full text linkIn recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article will examine a current and highly visible set of convictions about the contents of human freedom, which together suggest that a thriving religious witness threatens freedom itself. These convictions often surface in the context of laws touching upon sexual expression. It will then contrast these convictions with those found in earlier and largely non-sexual-expression law, according to which religious witness enhances human freedom. Finally, it will offer four observations about these contrasting notions of freedom
Valuation Procedure for Condemnation: A Fifty State Survey
Full text linkThe Fifth Amendment requires statutorily authorized condemnors to provide just compensation to landowners for all takings. The procedural method used by states to determine just compensation varies widely among states and is often separate from the more standard procedures existing in traditional civil litigation. Regardless of their method, all fifty states and the District of Columbia each have their own unique procedure for determining just compensation. This Note distinctly classifies the procedural schemes currently used by states to initially value just compensation of condemned property into three general categories: (1) schemes that rely on commissioners to determine just compensation, (2) schemes that empower judges to valuate property, and (3) other schemes that are unique to only a few states. This Note also compares and contrasts the efficiency and justness of methods used in different states to initially determine what constitutes just compensation. Perhaps most importantly, this Note provides a series of graphics in the Appendix that will help both academics and practitioners understand state-to-state differences in procedurally determining just compensation
