Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment
Vanderbilt Law Review, Vol. 49, No. 6, p. 1347, November 1996
60 Pages Posted: 21 Nov 1996 Last revised: 13 Oct 2011
Date Written: 1996
The Seventeenth Amendment requires direct popular election of United States Senators. The amendment's removal of state legislatures from the Senate election loop has obviously altered the relationship between federal and state governments. But less obvious are the ways in which direct election bears on the relationships within the federal government itself.In this article, Professor Amar connects up two great structural themes of the Constitution by identifying and exploring separation-of-powers implications of what is seemingly a federalism provision. In particular, Professor Amar looks at how direct election has made it more difficult to sandwich Senate service around a stint in the Executive Cabinet. He also looks at issues surrounding the nondelegation doctrine, and uses the Seventeenth Amendment to cast light on the permissibility of Congressional delegations of power to other federal branches. He goes on to discuss implications for administrative law doctrines such as Chevron deference. Finally, he examines the ways in which direct election might have affected Congress' relationship with the Supreme Court. In the end, Amar argues, direct election speaks to the Congressional/Presidential relationship, the Presidential/Judicial relationship, and the Congressional/Judicial relationship.
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