In the current issue of the Harvard Law Review, Josh Blackman: Gridlock (130 Harv. L. Rev. 241 (2016)). From the introduction:
As Congress becomes more polarized, it becomes less able to resolve major questions affecting social, economic, and political issues. With his legislative agenda frustrated, the President takes executive action on those questions Congress either ignored or rejected by adding expansive glosses to generic delegations of authority. The courts are then called upon to assess whether the line the executive drew was within his delegated authority. But these disputes can be resolved on the more neutral principle of whether the agency can take such novel actions in the first instance. If the answer is no, there is no need for judges to draw that difficult line. These “major questions” should be returned to the political process — which is where they should have been decided to begin with.
My goal in this Comment is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or whether the contraception mandate’s accommodation violates the Religious Freedom Restoration Act of 1993 (RFRA). In fairness, the Court didn’t either. (Texas and Zubik — combined, only ten slip pages — are likely the shortest corpus ever for a faculty comment in the Harvard Law Review’s annual Supreme Court issue.) Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell to demonstrate why congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes United States v. Texas to explain how congressional gridlock does not license the expansion of the executive’s authority. I conclude with a preview of how these cases are likely to be resolved on remand.
With this response in the Harvard Law Review Forum by Josh Chafetz: Gridlock? (130 Harv. L. Rev. F. 51 (2016)). It begins:
Its title notwithstanding, Professor Josh Blackman’s Comment is not really about gridlock. It makes no attempt to ask what constitutes gridlock or how we might identify it, nor does it offer much by way of a theory of how we ought to respond to gridlock, if indeed we are experiencing it. Instead, Blackman takes the opportunity presented by two recent executive actions of which he disapproves to advance a certain theory of administrative law, one in which the “major questions doctrine” plays an increasingly outsized role. But the reasons Blackman gives in support of this new direction in administrative law do not stand up to scrutiny.
Posted at 6:10 AM