Separation of Powers

King v. Burwell - Post-Decision SCOTUScast

SCOTUScast 6-26-15 featuring Jonathan Adler and Josh Blackman
Jonathan H. Adler, Josh Blackman June 26, 2015

On June 25, 2015, the Supreme Court issued its decision in King v. Burwell. The question in this highly anticipated case is whether the Affordable Care Act authorizes the Internal Revenue Service to offer tax credit subsidies for individuals purchasing health insurance through federal exchanges.

In an opinion delivered by the Chief Justice, the Court held by a vote of 6-3 that the tax credit subsidies authorized by section 36B of the Affordable Care Act for individuals purchasing health insurance through state exchanges are also available to individuals in states that have a federal exchange.  The judgment of the Fourth Circuit was affirmed.

Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed a dissenting opinion which Justices Thomas and Alito joined.

To discuss the case, we have Prof. Josh Blackman, who is an Assistant Professor of Law at the South Texas College of Law and Prof. Jonathan Adler who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

“The Case of the Speluncean Explorers" -- The Classic Law Review Article Revisited - Podcast

Professional Responsibility & Legal Education Practice Group Pocast
James Allan, James A. Haynes, Dan Priel, Frederick Schauer June 24, 2015

It is the year 4300 in an imaginary jurisdiction named Newgarth. Old questions dominate the deliberations of the Supreme Court as Chief Justice Truepenny and his four colleagues present their opinions in the appeal of a notorious murder verdict. Each Justice presents and defends his analysis and disposition of the appeal. The opinions offer considered views of law, justice, judges' work and larger public opinion. No pale pastels for the Truepenny Court, as its members alternately resort to the broad brush and the fine scalpel. The final effect is one of a well written teaching tool and also an essay on our flawed human condition.

Prof. Lon L. Fuller, in his article, “The Case of the Speluncean Explorers,” presented his ideas in the form of a dialogue, without footnotes. The Harvard Law Review published it in February 1949. In a sense it is a work of moral imagination. In another sense it is so dated as to be almost antiquarian. The members of Supreme Court of Newgarth are male and the legal analysis they offer and the language they use are distinctly old-fashioned. In some quarters it would be regarded as a discredited tool of oppression. That said, Prof. Fuller still entertains and teaches the reader, 65 years later. The questions and worries that lawyers and judges share with the Justices of Newgarth still loom in the 21st century.

Our discussion panel was composed of legal scholars from Canada, Australia, and the United States. In a real sense, its diversity shows the continuing relevance and appeal of this legal classic.

  • Prof. James Allan, Garrick Professor of Law, University of Queensland, TC Beirne School of Law
  • James A. Haynes, Attorney and Alternate Judge, U.S. Department of Labor, Employees Compensation Appeals Board
  • Prof. Dan Priel, York University Osgoode School of Law
  • Prof. Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

Congressional Oversight - Audio/Video

Third Annual Executive Branch Review Conference
Jonathan H. Adler, Michael D. Bopp, Sally Katzen, Adam J. White, Todd F. Gaziano June 24, 2015

After delegating significant power to the administrative state, is Congress properly discharging its oversight role? Are there tools available to Congress that are underutilized? Would a proper annual budget process help? Are Congress’ oversight hearings meaningful, well-run, and properly focused? Should Congress be requesting more information from agencies through other avenues?

This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference.

Plenary Panel: Congressional Oversight
2:00 p.m. – 3:30 p.m.
Promenade Room

  • Prof. Jonathan H. Adler, Case Western Reserve University School of Law
  • Mr. Michael D. Bopp, Gibson Dunn and Crutcher
  • Prof. Sally Katzen, New York University School of Law
  • Mr. Adam J. White, Boyden Gray & Associates
  • Moderator: Hon. Todd F. Gaziano, Pacific Legal Foundation

June 18, 2015
Washington, DC

The Incentives Behind Congressional Delegation - Audio/Video

Third Annual Executive Branch Review Conference
Jack Beermann, Gillian E. Metzger, Neomi Rao, Dean A. Reuter June 24, 2015

In administrative law the focus has primarily been on how to constrain executive discretion. It may, however, be equally important to consider how to constrain the delegations that create that discretion—not just by telling Congress to “do its job,” but by thinking about how to shift the incentives that members have for delegation. This panel will consider what Congress gains by delegating policymaking authority to the executive. The conventional view holds that delegations only expand the power of the executive, ignoring the myriad reasons that Congress chooses to delegate its power. Members of Congress may realize a variety of benefits from delegation, including control over how agencies exercise their discretion. Panelists will discuss the reasons why Congress delegates so broadly and consider what legal and political solutions might curb such delegations.

Luncheon Panel: The Incentives behind Congressional Delegation
12:30 p.m. – 2:00 p.m.
State Room

  • Prof. Jack M. Beermann, Boston University School of Law
  • Prof. Gillian E. Metzger, Columbia Law School
  • Prof. Neomi J. Rao, George Mason University School of Law
  • Moderator: Mr. Dean A. Reuter, The Federalist Society

June 18, 2015
Washington, DC

Should Federal Law Enjoy a Presumption of Constitutionality? - Audio/Video

Third Annual Executive Branch Review Conference
David M. McIntosh, Clark Neily, M. Edward Whelan, Thomas B. Griffith June 24, 2015

Does the judiciary owe Congress presumptive deference in reviewing and considering challenges to federal statutes?  If so, what standards should courts impose on those making such challenges?

The historical practice of such presumptive deference, the canon of constitutional avoidance, has been reflected in decades of judicial decisions upholding much Congressional legislation.  However, some believe that, in light of courts' observance of the canon of constitutional avoidance, Congress correspondingly enacts legislation without taking care that such legislation is actually constitutional.

In recent years, Congress is increasingly likely to pass acts that run to hundreds or even thousands of pages.  The bills are typically drafted by staffers, sometimes hastily written and amended at the last moment, and often not read by legislators before votes are cast.  Some bills are passed at the midnight hour, sometimes with provisions for expedited judicial review of the bill's constitutionality, as if Congress is leaving wholly to the judiciary the assessment of a law's constitutionality

Some now assert that, given how Congress enacts legislation, courts should rethink the canon of constitutional avoidance.

Our panel will consider this question and the proper applicability of the canon of constitutional avoidance.

This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference.

Plenary Panel: Should Federal Law Enjoy a Presumption of Constitutionality?
11:20 – 12:20 p.m.
East Room

  • Hon. David M. McIntosh, Club for Growth
  • Mr. Clark Neily, Institute for Justice 
  • Mr. M. Edward Whelan III, Ethics and Public Policy Center
  • Moderator: Hon. Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit

June 18, 2015
Washington, DC