Brian Lipshutz (Yale Law School, JD '15) has posted Justice Thomas and the Originalist Turn in Administrative Law (Yale Law Journal Forum, 2015) on SSRN. Here is the abstract:
Until recently, it seemed that administrative law was beyond the reach of originalism at the Supreme Court. But this past term, Justice Thomas wrote six concurring and dissenting opinions amounting to a systematic originalist critique of administrative law.
In these cases–AAR, Perez, B&B Hardware, Wellness International, Texas Department of Housing, and Michigan v. EPA – Justice Thomas re-examined non-delegation, judicial deference, and agency adjudication of private rights. This Essay highlights that these opinions are the first sustained originalist analysis of administrative law by a Justice. It also identifies the ways in which the opinions connect to each other, to scholarship, to previous opinions, and to possible future opinions.
Posted at 6:31 AM