ACSBlog: The Blog of the American Constitution Society

Jack Balkin comments on the significance of an Executive Order imposing more political appointee supervision on the federal rule making process:

As the federal bureaucracy has grown larger and its orders and advice more frequent and pervasive, the bureaucracy has also become increasingly independent of the political will of the White House. Presidents, realizing this, have sought to bring the bureaucracy under their control in various ways. The Reagan Administration tried to slow down bureaucratic initiatives it did not like. The Clinton Administration tried to harmonize regulations and require additional justifications. The difference in strategies makes some sense: The Reagan Administration ran against government regulation, and so tried to control it by impeding it. The Clinton Administration, by contrast, tried to impose various good government reforms on regulation, and, perhaps more important, tried to take credit for the work that the bureaucracy was doing, particularly after the Democrats lost Congress following the 1994 elections. Thus, the President would often make public statements and hold press conferences to announce decisions made in the bureaucracy, declaring them to be initiatives (and successes) of his Administration. Where Reagan sought to rain on regulation's parade and slow it down, Clinton sought to run ahead of the parade so that he could lead it. (For those who are interested, Dean Elena Kagan of the Harvard Law School wrote an important study in the Harvard Law Review in 2001 comparing the Reagan and Clinton Administrations' attempts to control the federal bureaucracy, and this post draws on her analysis.)

Interestingly, the Bush Administration has built on the Clinton model more than the Reagan model. Instead of trying to halt regulation, it has sought greater political control over advisory documents and required a greater showing that regulation addresses a genuine market failure. It seeks to use political appointees to act as gatekeepers for the content of advisory documents before they are published.

The reasons why Bush has followed Clinton more than Reagan flow from the rise of Bush's big government conservatism, a conservatism that happily uses all the levers of federal power to benefit his political allies, including most particularly business interests, who remain central to the Republican political coalition. The Bush Administration does not so much seek to stop regulation as to mold it in a decidedly business-friendly way.

Shavar Jeffries comments on a proposed California bill which would ban spanking.

Nathan Newman notes that a corporation supporting the construction of a controversial highway is buying up papers who oppose the construction.

Seth Barrett Tillman argues that the Senate can wipe out a President's recess appointees:

As stated, the text of the Recess Appointments Clause provides that such appointments last until the end of the Senate's next session. The Executive Branch has also made this clear. I suggest that, after the President makes a valid recess appointment, the Senate could convene, immediately terminate its session, and then reconvene instantly. The Senate would enter its adjournment order on its journal and notify the President by message of their action. Admittedly, there is a certain "fictional" quality to this sequence. But it is precisely on such fictions that the Executive Branch has justified contentious prior appointments. For example, President Theodore Roosevelt took the position that even when the prior Congress met until the last moment of its constitutional term and the successor Congress convened immediately thereafter, that interregnum of one moment was a "recess" permitting the President to make a constitutionally valid recess appointment.

The termination of the Senate's (post-recess) session should terminate the appointment—along with any other recess appointments made by the President over the course of the recess. The Senate could not pick and choose which individual appointees would "survive" termination—it would have to choose between terminating all the recess appointments or none of them. And where the Senate objects to intrasession appointments as a matter of constitutional principle, then the Senate should not be permitted, as a normative matter, to pick and choose which appointments survive termination and which do not. On the other hand, where only one appointment was made during the recess, the Senate would have no need to pick and choose.

A Florida rape victim was thrown in jail and refused emergency contraception by a guard with religious objections to its use.

and finally, conservative law professor Ilya Somin asks whether originalism requires a judge to conclude that the Air Force is unconstitutional.