Publications

After the 2020 presidential election, supporters of the losing candidate pressured state legislatures in key battleground states to overturn the results of their states’ popular presidential elections. In the run-up to the 2024 presidential election, concerns about the potential for state legislatures to subvert popular elections have resurfaced. State legislatures may assert that a state’s elected lawmakers have the constitutional authority to choose the state’s Electors for the Electoral College without—or in contravention of the result of—a popular election. We demonstrate that the Fourteenth Amendment provides powerful protection against this threat to the integrity of presidential elections. While the Penalty Clause of the Fourteenth Amendment has long lain dormant, it provides vital and distinct protections, and it is the appropriate vehicle for addressing the threat of state legislative usurpation of presidential elections. Whether or not Article II grants state legislatures power over popular elections, Section 2 of the Fourteenth Amendment, for all practical purposes, ensures that states will provide a popular election for selecting Electors in presidential elections. The weight of recent events makes obvious the importance of clear rules safeguarding the integrity of democracy in America. Curiously, however, scholars have paid little attention to Section 2 of the Fourteenth Amendment and its contemporary relevance. When scholars have considered it, they have typically construed it as a grant of authority enabling Congress to pass legislation. We argue that Section 2 is self-executing and no congressional action is needed for Section 2 to prevent state legislatures from circumventing popular elections.

It should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several of these approaches circumvent the restriction imposed by the Entrenchment Clause by reforming the Senate in ways that do not alter the equal representation of states: disempowering the Senate, abolishing the Senate entirely, or adding at-large nationally elected senators. A different approach involves repealing the Entrenchment Clause and then either passing a second amendment reapportioning the Senate or asking courts to democratize it under the Equal Protection Clause. We then canvass reforms that could move in the direction of democratizing the Senate without constitutional amendment, including admitting new states, breaking up the largest states, and (although we do not advocate it) a new Constitutional Convention. Throughout, we discuss the relative merits and difficulties of each of these options. Reformers and scholars need a clear understanding of the relevant legal frameworks to develop effective strategies. While we recognize that none of these options are easy, we conclude that action to fix the Senate’s democratic deficit is essential—and urgent.

In a series of recent opinions, the Supreme Court has threatened to transform the nondelegation doctrine into a device for imposing sweeping limits on congressional authority to empower the regulatory state. But, as a matter of history and logic, the nondelegation doctrine has a quite different purpose. This Article argues that the nondelegation doctrine plays an underappreciated role in constitutional structure: encouraging the segmentation of executive power. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of its legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. The nondelegation doctrine accomplishes its distinctly structural purpose by constraining the delegation of broad powers to the President directly, a constraint that encourages legislative delegation of regulatory authority to administrative agencies. The Article explains as a matter of theory why broad delegations to the President, unlike the delegation of substantial regulatory authority to administrative agencies, jeopardize legislative supremacy and hence pose heightened nondelegation concerns, and it finds strong support for this distinction in the history of nondelegation decisions. It concludes that the diffuse departmental structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite, a cudgel against legislative supremacy rather than its guardian.

Much early public choice theory focused on alleged pathologies of democratic legislatures, portraying them as irrational, manipulable, or subject to capture. Recent years have seen the emergence of a new strand of argument, reaffirming the old skepticism of legislatures but suggesting that transferring power from legislatures to chief executives offers a solution. Just as the earlier prescriptions ignored the pathologies of the agencies empowered to check and constrain legislatures, so the new scholarship overlooks the pathologies of executive power. The primary sources of congressional dysfunction call for reforms that would strengthen Congress instead of hobbling it in new ways that exacerbate the drift toward authoritarian presidentialism in the American system. Executive aggrandizement is a consequence of decades of institutional malfunction, worsened by right-wing attacks on legislative capacity. This has been the enduring impact of the public choice movement since the 1950s, but its twenty-first century offshoot is especially malign.

Administrative law is a system for enabling Congress to confer discretion on executive agents constrained by deliberative reason-giving obligations that tether executive implementation to a legislative plan. Requiring administrative agents to execute a deliberative procedure enables Congress to elicit the benefit of superior administrative expertise and evidence-gathering capacity while mooring agencies to the considerations that Congress chose to make relevant. But, across its recent administrative law decisions, the Roberts Court has evinced skepticism toward the traditional approach to legitimating and constraining executive discretion through deliberation. At the same time, the Court is increasingly imposing restrictive ex ante constraints, of its own devising, on administrative agencies. The substitution of ex ante constraints for ex post constraints undermines Congress’s ability to benefit from administrative discretion at the same time that it vitiates the deliberative incentives that administrative law has traditionally imposed on administrative agencies. The modern settlement in separation of powers limited Congress from controlling the execution of the law directly but enabled Congress to provide for control mediated by an independent judiciary. The Court’s new hostility to administrative law challenges this settlement, with potentially dire consequences for the separation of powers. Even as the Court purports to limit the scope of congressional delegation to the executive, its retreat from traditional reason-giving requirements underwrites a substantial transfer of power from Congress to the President. Indeed, the Court’s antipathy to administrative law has intellectual roots in a dangerous theory of Article II, the implications of which go significantly further than has been acknowledged. Yet there is a better reading of Article II that centers on the deliberative rather than managerial character of the executive branch. The deliberative Article II supports congressional choices to guide executive discretion through administrative procedure.

Separation of powers formalists, who treat the Constitution’s Vesting Clauses as substantive power grants, have tended to regard congressional power as being of little interest. Nevertheless, this Article demonstrates, applying their methodology to Article I produces surprising results. The Article I Vesting Clause contains the apparently absolute conferral of “[a]ll legislative Powers herein granted” to Congress, but Article I’s provision for a presidential veto appears to be in tension with this pronouncement. This tension has significant implications for separation of powers theory. Either (1) the Article I Vesting Clause does not mean what it says (raising serious doubts about presidential power proponents’ analogous reliance on the Article II Vesting Clause as a substantive power grant), (2) the presidential veto is not a “legislative power” (raising deep challenges for separation of powers formalism), or else (3) the presidential veto is a power subject to the control of Congress. Formalists cannot avoid this dramatic conclusion without renouncing some of their other commitments. Formalists in recent decades have leveraged Vesting Clause essentialism as a wellspring of presidential power, but this Article shows that either formalists must abandon their embrace of Vesting Clause essentialism, undermining the putative constitutional basis for the unitary executive theory and inherent presidential powers, or else defenders of Congress have powerful textual resources to fight back on formalists’ own turf.

A recent line of Supreme Court cases on the Takings Clause, most strikingly Cedar Point Nursery v. Hassid, which held that a California law granting labor organizers a right to access agricultural property constituted a per se physical taking, has advanced an increasingly essentialist vision of property rights. Property essentialism—the view that the essence of a property right is the right of an owner to exert control over a thing, including by excluding others from the use of the thing—has historically been antithetical to the Takings Clause, which permits government acquisitions of private property so long as the government pays “just compensation.” This Article argues that, taken seriously, the Cedar Point approach shifts Takings law from the goal of compensation to the goal of deterrence. In other words, the Court’s new approach seeks to substitute what Calabresi and Melamed famously called “property rule” protection for the “liability rule” protection that the Takings Clause traditionally provided. The import of the Court’s essentialist language so far has been little more than rhetorical, but the logic of this language opens the door to potentially sweeping changes in Takings doctrine. The Court should not go further down this road. Not only would the introduction of property essentialism be in stark tension with the text of the Takings Clause and with longstanding precedent, it would also produce adverse—and to some degree unintended—consequences, undermining the policies that the Takings Clause has traditionally vindicated and ultimately jeopardizing the Constitution’s protection of private property. Moreover, the incompatibility of the Takings Clause with property essentialism provides new and powerful grounds for rejecting property essentialism as both a normative aspiration for and an empirical characterization of U.S. property law.