Hercules, Herbert, and Amar: The Trouble With Intratextualism

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999)

Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008

This essay compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes and constraints operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to the standard Madisonian view. Second, within the broad constraints of crisis politics, the Bush administration asserted its authority more aggressively after 9/11 than in the financial crisis. Rejecting competing explanations based on legal differences, the nature of the threat, or other factors, we attribute the difference to the Bush administration's loss of popularity and credibility over the period between 2001 and 2008 and to the more salient and divisive distributive effects of financial management

Divide and Conquer

The maxim “divide and conquer” (divide et impera) is invoked frequently in law, history, and politics, but often in a loose or undertheorized way. We suggest that the maxim is a placeholder for a complex of ideas related by a family resemblance, but differing in their details, mechanisms and implications. We provide an analytic taxonomy of divide and conquer mechanisms in the settings of a Stag Hunt Game and an indefinitely-repeated Prisoners' Dilemma. A number of applications are considered, including labor law, bankruptcy, constitutional design and the separation of powers, imperialism and race relations, international law, litigation and settlement, and antitrust law. Conditions under which divide and conquer strategies reduce or enhance social welfare, and techniques that policy makers can use to combat divide and conquer tactics, are also discussed

Interring the Nondelegation Doctrine

Uma extensa literatura acadêmica discute a doutrina da não delegação, que se diz proibir o Congresso de decretar concessões demasiadamente amplas ou discricionárias de autoridade estatutária ao Poder Executivo ou a outros agentes. A maior parte dessa literatura aceita a existência da doutrina e argumenta apenas sobre os termos de sua aplicação ou sobre a competência dos tribunais para aplicá-la. Neste ensaio, argumentamos que tal doutrina da não delegação não existe; uma concessão estatutária de autoridade ao Poder Executivo ou a outros agentes nunca afeta uma delegação de Poder Legislativo. Agentes que atuam nos termos de tal concessão estatutária exercem o Poder Executivo, não o Poder Legislativo. Nosso argumento baseia-se numa análise do texto e da história da Constituição, da jurisprudência e de uma crítica das defesas funcionais da doutrina da não delegação que têm sido propostas pelo meio acadêmico.A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academic

The Credible Executive

Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president’s own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive’s decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples

The Credible Executive

Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president’s own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive\u27s decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples