Administrative State Before the Supreme Court

Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute, where he studies constitutional law and the growth of the administrative state. His earlier work at AEI focused on government housing policy, the government-sponsored enterprises Fannie Mae and Freddie Mac, and the government mortgage complex. He was also a member of the Financial Crisis Inquiry Commission and wrote a dissent from its majority report. Mr. Wallison served as a White House counsel under President Ronald Reagan. As the US Treasury Department general counsel in the same administration, he played a significant role in developing the Reagan administration’s proposals for the deregulation of the financial services industry. Mr. Wallison is the author of many books, including Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, 2018), Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis (Encounter Books, 2015), and Ronald Reagan: The Power of Conviction and the Success of His Presidency (Westview Press, 2004). In addition, he is the coauthor or editor of Competitive Equity: A Better Way to Organize Mutual Funds (AEI Press, 2007); Privatizing Fannie Mae, Freddie Mac, and the Federal Home Loan Banks: Why and How (AEI Press, 2004); The GAAP Gap: Corporate Disclosure in the Internet Age (AEI Press, 2000); and Optional Federal Chartering and Regulation of Insurance Companies (AEI Press, 2000).John Yoo is a nonresident senior fellow at the American Enterprise Institute; Emanuel S. Heller Professor of Law at the University of California, Berkeley; and a visiting fellow at the Hoover Institution. He has worked in all three branches of government, notably as an official in the US Department of Justice, where he worked on national security and terrorism issues after the September 11 attacks. He also served as general counsel of the US Senate Judiciary Committee under its chairman, Orrin Hatch of Utah. And he has been a law clerk for Supreme Court Justice Clarence Thomas and US Court of Appeals Judge Laurence Silberman. He is the author of several books, including Defender in Chief: Donald Trump’s Fight for Presidential Power (St. Martin’s, 2020), Point of Attack: Preventative War, International Law, and Global Welfare (Oxford University Press, 2014), Taming Globalization: International Law, the U.S. Constitution, and the New World Order (Oxford University Press, 2012), Crisis and Command: A History of Executive Power from George Washington to George W. Bush (Kaplan Publishing, 2010), War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press, 2006), and The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press, 2005).

• Introduction....................................................................................................... 1Peter J. WallisonReviving the Nondelegation Principle in the US Constitution............... 20Douglas H. GinsburgThe Nondelegation Test Hiding in Plain Sight:The Void-for-Vagueness Standard Gets the Job Done............................... 45Todd Gaziano and Ethan BlevinsReinvigorating Nondelegation with Core Legislative Power................... 81Mark Chenoweth and Richard SampA Private-Law Framework for Subdelegation........................................... 123Gary LawsonA “Step Zero” for Delegations..................................................................... 161Jonathan H. AdlerA Two-Tiered and Categorical Approach to theNondelegation Doctrine............................................................................... 195Michael B. RappaportExecutive Administration of the Government’s Resourcesand the Delegation Problem........................................................................ 232John HarrisonThe Sky Will Not Fall: Managing the Transition to aRevitalized Nondelegation Doctrine.......................................................... 274Saikrishna Bangalore Prakashiv THE ADMINISTRATIVE STATE BEFORE THE SUPREME COURTCan the Supreme Court Learn from the StateNondelegation Doctrines?............................................................................ 315Joseph PostellA Judicially Manageable Test to Restore Accountability........................ 346David SchoenbrodConclusion..................................................................................................... 376John YooAbout the Authors......................................................................................... 389