Deviant Executive Lawmaking

Abstract:     
Using the Line Item Veto Act as a backdrop, the Article contends that the Constitution permits legislative delegations of the power to modify or cancel statutes. The article argues that all forms of executive lawmaking -- traditional lawmaking via regulation, law-modifications, and law-cancellations-should be viewed as merely forms of a more general category of executive lawmaking. Instead of erecting a per-se rule against certain types of such legislative delegations, the propriety of all delegations and exercises of such authority should be judged by reference to some external limit on delegation generally (e.g., the delegation doctrine). Such a framework helps us understand that we should tolerate some executive cancellation and modification delegations just as we accept some delegation of lawmaking authority. The Article also considers and rejects several powerful arguments as to why cancellation/modification authority should be viewed as more problematic than the typical lawmaking delegation.

Accepted Paper Series