Superstatute Theory and Administrative Common Law

Kovacs, Kathryn E.

doi:10.2139/ssrn.2386025

Cited by 3 publications

(3 citation statements)

References 23 publications

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“…196 As I argued elsewhere, the courts should hesitate to disturb the legislative bargain embodied in the APA. 197 The APA represents an extraordinary moment of deliberative democracy. It followed years of debate among Congress, dozens of federal agencies in the Roosevelt administration, the ABA, and other interested parties.…”

Section: A the Textmentioning

confidence: 99%

“…Finally, one of Congress's central purposes in enacting the APA was to impose some uniformity on administrative procedure. 412 Congress aimed to make dealing with administrative agencies less confusing and more fair. 413 Accordingly, in the APA, Congress abandoned the Walter-Logan Bill's approach of exempting particular agencies and opted instead to "deal with types of functions as such."…”

Section: Uniformitymentioning

confidence: 99%

“…446 Indeed, members of Congress on both sides of the aisle agreed that the judicial review provisions should apply to all agencies uniformly. 447 Uniformity was among their central goals in enacting the APA. 448 Furthermore, Congress is incapable of policing the Statutory President; hence, judicial intervention is critical.…”

Section: Of the Statutory Presidentmentioning

confidence: 99%

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Constraining the Statutory President

Kovacs

2020

SSRN Journal

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When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious. The President, however, is not subject to such constraints, even when exercising purely statutory authority, i.e., acting as the "Statutory President." That autonomy is due to the Supreme Court's holding in Franklin v. Massachusetts that the President is not an "agency" under the Administrative Procedure Act (APA). Thanks to Franklin, the President exercises delegated authority to make policy decisions that have enormous implications for the public without the public involvement, transparency, deliberation, and political and judicial accountability that we demand when agencies make such decisions. This Article is the first to take Franklin v. Massachusetts head on. It demonstrates that the Court's 1992 holding conflicts with the plain language and history of the APA; it explains the flaws in the Court's constitutional analysis; and it presents the normative case for treating the Statutory President like any other agency. Having shown that Franklin was wrong, this Article sketches a new model for treating the Statutory President like an "agency" under the APA. It concludes by explaining how both the process and outcome of Trump v. Hawaii, in which the Supreme Court upheld the President's order barring immigration from certain Muslim-majority nations, would have been different had the President been subject to the APA.

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Section: A the Textmentioning

confidence: 99%

Section: Uniformitymentioning

confidence: 99%

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Constraining the Statutory President

Kovacs

2020

SSRN Journal

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Fomenting Authoritarianism Through Rules About Rulemaking

Kovacs

2018

SSRN Journal

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The Law of Lawmaking as Quasi Constitutional Legislation

Prasetya¹

2023

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Constitutional Court Decision No. 91/PUU-XVIII/2020 regarding the judicial review of the Job Creation Act, marked for the first time Court decide prevailed on behalf of petitioners in a procedural judicial review case. The Decision erects a legal discourse relating to the superiority of the Lawmaking Act against other statutes, in terms of its position as a ground for conducting a procedural judicial review. It departs from the common understanding that all statutes are equal, no one statute could be superior to others. Normatively researched while laboring statutory, conceptual, and comparative approaches, the study resulting two answers. First, the superiority of the Lawmaking Act would be best described by quasi constitutional legislation theory. Second, the majority opinions in recent Constitutional Court Decisions reflected the entrenchment of the

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Superstatute Theory and Administrative Common Law

Cited by 3 publications

References 23 publications

Constraining the Statutory President

Constraining the Statutory President

Fomenting Authoritarianism Through Rules About Rulemaking

The Law of Lawmaking as Quasi Constitutional Legislation

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