In a political climate where the machinery of the federal government has grown increasingly complex, The Power to Legislate offers a comprehensive and in-depth analysis of the extent and limitations of legislative power granted by the U. S. Constitution. By examining the historical development of the Constitution as well as judicial precedent set by the Supreme Court, Richard E. Levy develops a systematic account of federal legislative power that is ideal for anyone interested in constitutional history and political science. Levy focuses his investigation on three distinct, yet related, aspects of federal legislative power: the necessary and proper clause of Article I, the delegation of powers to the various federal institutions, and the deliberative powers of Congress to conduct investigations and interrogations. The Power to Legislate synthesizes these three crucial ideas into a fresh perspective that sheds light on today's controversies.

This casebook focuses on five representative agencies to provide students with a more holistic understanding of the structure and functions of agencies, to illustrate the kinds of actions agencies take to implement their statutory mandates, and to provide context for examining the legal constraints on those actions. Two key problems for teaching and learning administrative law are (1) students' lack of familiarity with agencies, what they do, and their role in the tri-partite system of government established by the Constitution; and (2) the need to understand new and different agencies and figure out their organic statutes for each new administrative law case. Other key features of the book are: The use of a consistent "unit" format throughout the book to maximize student understanding Adaptability to various teaching methods (e.g., lecture, Socratic, or problem method). Flexibility of coverage, including unit clusters that allow teachers to decide the level of coverage for key topics, ranging from a basic overview provided by a single unit to more extensive treatment through coverage of several related units By focusing on five important and representative agencies (the EPA, NLRB, SSA, IRS, and FCC), the book addresses both problems. Extended treatment of these agencies, including one chapter each that uses the agency to present the legal issues surrounding a particular kind of agency action (e.g., EPA to illustrate administrative law issues concerning rulemaking, the NLRB to illustrate the issues arising from agency efforts to make policy through adjudication), provides students with a clearer sense of how agencies are structured, what they do, and how they do it. In addition, our book provides an efficient mechanism for teaching and learning about administrative law: because the principal cases used to illustrate administrative law doctrine and present administrative law issues involve the same five agencies, the need to learn about new agencies and understand new organic statutes is greatly reduced, enabling students and teachers to focus on the administrative law issues in the cases.

The third edition of this innovative administrative law casebook retains and enhances its unique features: Focus on five representative agencies to provide students with a more holistic understanding of agencies and provide context. Use of a consistent unit design that maximizes student learning and facilitates the use of the book with a wide variety of teaching styles, including traditional methods and the "flipped" classroom. Incorporation of cutting-edge cases and problems that focus on the practical application of administrative law doctrines. By focusing on five important and representative agencies (the EPA, NLRB, SSA, IRS, and FCC), the book addresses two key problems for teaching and learning administrative law: (1) students' lack of familiarity with agencies and what they do; and (2) the difficulty of understanding new and different agencies and their organic statutes for each new administrative law case. Extended treatment of these five agencies, including one chapter for each agency that focuses on its use of a particular kind of agency action (rulemaking, policymaking adjudication, mass adjudication, informal action, and enforcement) provides students with a more complete picture of what agencies do and how they do it. Because the principal cases and problems involve the same five agencies throughout the book, the need to learn about new agencies and understand new organic statutes is greatly reduced, enabling students and teachers to focus on the administrative law issues in the cases. The book uses a consistent "unit" format throughout. Each unit covers a particular topic and includes (1) a clear and comprehensive discussion of the basic doctrine governing the topic; (2) a principal case or cases to illustrate the application of the doctrine and highlight key issues; (3) a discussion of related matters to explore additional issues and connections between topics; and (4) a detailed administrative law problem requiring the application of the doctrine in context. This unique structure and design facilitates the use of the book with a variety of teaching methods, including the Socratic method, lecture and discussion, and the problem method. Because it combines clear exposition, illustrative principal cases, and comprehensive problems, the book is also an ideal tool for teachers who want to flip their classrooms. This unit structure also enhances the flexibility of the book, allowing teachers easily to select topics for coverage and determine the depth of coverage they wish to provide. The third edition has been thoroughly updated to provide cutting edge treatment of emerging administrative law issues and developments, including the reinvigoration of separation of powers, the erosion of Chevron deference, and constraints on agency guidance documents. The third edition also reflects changes designed to enhance the book's effectiveness as a teaching and learning tool, such as increased use of primary administrative law materials, improvements to problems, and new principal cases.

In Hellebust v. Brownback, the Federal District Court for the District of Kansas invalidated two statutory sections that provided for the election of the State Board of Agriculture. The provisions authorized various county and statewide agricultural groups to send representatives to an annual convention at which members of the Board of Agriculture were elected. Because the Board of Agriculture exercised substantial regulatory authority over matters such as pesticides, water use and meat inspections, the district court found the Board to be a general governmental agency and held that this arrangement violated the “one person, one vote” principle of Reynolds v. Sims. Based on this conclusion, the court placed the Board's functions in receivership and appointed the Governor (in her official capacity) as receiver pending legislative action to correct the defects in the selection process for the Board of Agriculture. The Kansas House Agriculture Committee requested that I comment on the constitutional issues raised by this case. Because of the public interest in these matters, The University of Kansas Law Review agreed to publish the written testimony I submitted to the Committee. This testimony is reproduced below in the form it was submitted, with the inevitable addition of footnotes and technical alterations. The testimony summarizes the case law concerning the one person, one vote requirement and explains why the district court decision is likely correct in its application of the law. It also discusses some of the constitutionally permissible means of addressing the selection of the Board. The testimony is followed by a brief postscript in which I describe some of the distinct concerns that developed in the oral exchange that accompanied my presentation of this testimony to the Committee.

It was not supposed to be like this. In Chevron and State Farm, the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Chevron adopted a two-step approach to statutory interpretation under which courts were to overturn agency interpretations that were contrary to the clear intent of Congress, but defer to permissible agency constructions of a statute. State Farm indicated that an agency's policy judgments should be analyzed according to a specific set of inquiries that focused on the agency's reasoning process. Administrative law scholars, whether they agreed or disagreed with the Court's standards, assumed that the two cases were landmark decisions that signaled a turning point in the substantive review of agency decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court. This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law. Its centerpiece is a model of judicial behavior based on the “craft” and “outcome” components of judicial decisionmaking. Judges engage in the well-reasoned application of doctrine as a matter of craft, and they consider the implications of a result for the parties and society in general as a matter of outcome. When these components pull in opposite directions in a given case, our model suggests how judicial incentives influence the resolution of this tension. Our model of judicial behavior explains why Chevron and State Farm have not been as influential as commonly assumed. Judges have stronger incentives to control outcome and weaker incentives to develop determinate craft norms that limit pursuit of outcome in administrative law than in other areas of law. Because reliance on indeterminate craft norms enables judges to pursue outcome without sacrificing craft, judges have avoided applications of Chevron and State Farm that are determinate. Drawing on this model, we propose a modified approach to substantive judicial review that accounts for the way that judicial incentives influence substantive review doctrine. We recommend that Congress require courts to respond to a series of specific questions that would apply to substantive agency decisions. These questions would make it more difficult for judges to manipulate scope of review standards and would require more explicit reasons for affirming or reversing an agency decision.

This essay responds to the Foulston, Siefkin Lecture, delivered by Professor William Eskridge at the Washburn University School of Law. Professor Eskridge challenged not only the argument that political powerlessness is a requirement for heightened scrutiny under the Equal Protection Clause, but also the wisdom of applying heightened equal protection scrutiny to laws discriminating against groups that are truly politically powerless. This essay uses Professor Eskridge's argument to frame a more overarching issue in the Court's suspect classification jurisprudence. The political powerlessness issue highlights an important ambiguity in the Court's decisions analyzing whether classes or classifications are inherently “suspect” so as to require heightened equal protection scrutiny of government action that adversely affects those classes or is based on those classifications. Put simply, the cases leave unclear whether heightened scrutiny applies because laws targeting a “suspect class” are likely to be the result of a political process failure, or because the use of a “suspect classification” is unfair to those affected. Under the political process rationale, scrutiny is elevated because a history of discrimination and political powerlessness leads us to suspect that the law is the product of animus toward the class and its members. Under the individual fairness rationale, scrutiny is elevated because the classification is unlikely to reflect real differences that justify treating people differently under the law. The political powerlessness issue is highly relevant if the focal point of the inquiry is the existence of a political process failure, while it is not so relevant to the question of whether it is fair to treat individuals differently on the basis of the classification. I argue in the essay that the cases addressing whether a class or classification is suspect are ambiguous on this question, but other aspects of the Court's equal protection jurisprudence suggest that it is individual fairness, rather than political process failure, that matters. The argument proceeds in several steps. I begin with a general overview of equal protection doctrine regarding suspect classes and classifications. I then describe the political process and individual fairness rationales for heightened scrutiny and consider the intermingling of the two rationales in the cases recognizing or declining to recognize a class or classification as suspect. Although these cases do not indicate which rationale is paramount or controlling, an examination of the Court's “disparate impact” and “affirmative action” decisions suggest that the Court has firmly embraced the individual fairness rationale and rejected or minimized the political process rationale. Finally, I examine the lower court's difficulties applying these principles to the question of whether to elevate scrutiny of classifications based on sexual orientation.

This article argues that it is time to rethink the jurisprudence of “economic rights.” For nearly twenty years, the United States Supreme Court has revisited economic rights doctrines that had lain dormant since the end of the Lochner era in the late 1930s. The Court's renewed concern for in economic rights has come at a time when various political and jurisprudential forces are conducive to a reconsideration of the appropriate role of economic interests in a jurisprudence of constitutional rights. Public distrust of and dissatisfaction with government has run high for a number of years, and tough economic times have focused public attention on the costs of government regulation. Likewise, prominent conservative scholars have argued on behalf of economic rights at the theoretical level, and even liberal scholars have begun to recognize that the total rejection of economic rights is difficult to square with constitutional text and history or with the jurisprudential underpinnings of individual rights doctrine. Against the background of these developments, and to some degree propelled by them, Republican presidents (particularly Presidents Reagan and Bush) have sought to reshape the Court through a series of conservative appointments. Although the rhetoric surrounding these appointments emphasized “judicial restraint” more than economic rights, some conservative justices appear to look more favorably upon economic interests than their liberal predecessors epitomized by the Warren Court. In a series of striking decisions, the reconfigured Court appeared to endorse enhanced protection of economic interests under a number of constitutional doctrines, including the Contract and Takings Clauses, separation of powers and federalism, and even the Equal Protection Clause. Despite the favorable climate, however, the Court was soon forced to retreat from the implications of these decisions. As a result, the Court has not only failed in its apparent effort to enhance the protection of economic rights, but also has left various economic rights doctrines in a state of total disarray. I believe that the Court has failed because it has been unwilling to address the constitutional position of economic rights in a straightforward and coherent manner. Resolution of the complex problems associated with balancing constitutional protection for economic interests against the legitimate demands of government requires a solid doctrinal foundation for analyzing specific cases. In the absence of such a foundation, we are left only with ad hoc, value-laden, and at times intellectually dishonest opinions that undermine the legitimacy of judicial review. Restoring coherence to this area of the law is no easy task, however. The problems that beset economic rights doctrine cut across doctrinal lines and reflect deep-seated systemic difficulties, whose roots lie in the Lochner era and the constitutional sea change precipitated by the New Deal. Put simply, the Lochner era has been so thoroughly discredited as improper judicial activism that serious discussion of the appropriate role of economic rights in our constitutional jurisprudence is virtually precluded. Reaction to Lochner distorted constitutional doctrine during the heyday of liberal constitutional jurisprudence, and the resulting doctrinal difficulties have been exacerbated by the political and legal context of recent appointments to the Supreme Court. The pattern of reinvigoration and retreat in economic rights decisions is the product of the tension between two strands of conservative theory: deregulation and judicial restraint. This tension has forced the Court into a misguided search for an “originalist escape” - i.e., an economic rights doctrine whose textual or historical foundations reconcile judicial intervention with principles of judicial restraint. The search for an originalist escape has distorted the Court's recent efforts to develop a jurisprudence of economic rights by preventing the Court from integrating economic rights into a comprehensive jurisprudence of individual rights, compelling it instead to maintain an unwarranted dichotomy between economic and other individual rights. The search for an originalist escape has also made it impossible for the Court to identify a constitutional baseline against which to measure economic rights, resulting in three inconsistent and unsuitable approaches to the baseline problem. The problems plaguing the Court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a coherent jurisprudence of constitutional rights. A modest, yet significant, reinvigoration of economic rights can and should be accomplished by developing the fundamental rights and political-process reasoning that underlies the liberal jurisprudence of the Due Process and Equal Protection Clauses, which can be used to fashion a broader jurisprudence that encompasses both economic and other constitutionally protected interests. On the other hand, the Contract and Takings Clauses should be confined to their historical meanings because they do not present suitable foundations for a broad economic rights doctrine. Such a jurisprudence would increase protection for economic rights but need not portend a return to the extremes of the Lochner era.