- Mr. Thomas G. Hungar, Gibson Dunn & Crutcher LLP and former U.S. Deputy Solicitor General
- Mr. Noel J. Francisco, Jones Day
- Moderator: Mr. Douglas R. Cox, Gibson Dunn & Crutcher LLP
The Mayflower Hotel
The Mayflower Hotel
In a case decided on Tuesday, July 22, 2014 by the D.C. Circuit Court of Appeals, the court ruled that subsidies can be granted only to those people who bought health insurance in exchanges run by an individual state or the District of Columbia, and not to people who purchased health insurance on the federally run exchange, HealthCare.gov. How did the court reach its conclusion, and is the court’s reasoning sound? Will the ruling make the Affordable Care Act financially unworkable? Is a final ruling by the U.S. Supreme Court inevitable?
In his new book, Is Administrative Law Unlawful?, Professor Philip Hamburger answers the provocative question posed in his title in the affirmative. Rather than accepting administrative law as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative and traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the United States Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Professor Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the U.S. Constitution — and constitutions in general — were designed to prevent.
Professor Hamburger joined us on a Teleforum conference call to discuss his new book, with additional commentary from Adam White. Mr. White’s recent review of the book for the Wall Street Journal is available here.
On June 26, 2014 the U.S. Supreme Court issued its opinion in NLRB v. Noel Canning. In a unanimous decision authored by Justice Breyer, the Court holds that recess appointments made in pro forma sessions are invalid. Our experts discussed the decision and its implications.
Mr. Chief Justice Burger, Mr. Chief Justice Rehnquist, members of the Court, and ladies and gentlemen: Today we mark one of those moments of passage and renewal that has kept our Republic alive and strong -- as Lincoln called it, the last, best hope of man on Earth -- for all the years since its founding. One Chief Justice of our Supreme Court has stepped down, and together with a new Associate Justice, another has taken his place. As the Constitution requires, they've been nominated by the President, confirmed by the Senate, and they've taken the oath of office that is required by the Constitution itself -- the oath "to support and defend the Constitution of the United States . . . so help me God.''