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Legislation that Isn't - Attending to Rulemaking's Democracy Deficit

Peter L. Strauss

Columbia Law School

October 9, 2009

California Law Review, Forthcoming
Columbia Public Law Research Paper No. 09-222

Written in celebration of Philip Frickey’s many contributions to the legislation literature, this essay is a further effort to understand the President’s relationship to administrative agency rulemaking. On the one hand, the President’s executive authority precludes the possibility that he is to be a lawmaker (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (opinion of Black, J.)); on the other, we unhesitatingly embrace agency rulemaking - as, indeed, as a practical matter, we must. On the one hand, “where the heads of departments are ... to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts are only politically examinable” (Marbury v. Madison, 5 U.S. 137, 165-66 (1803); on the other, courts tolerate agency authority to adopt regulations if and only if there exist “intelligible principles” by which their legality can be judicially tested. The strong unitary presidency positions so recently in vogue underscore the tensions evident here. The enduring problem for a democracy that this essay addresses is the legitimacy of permitting unelected officials to create binding legal texts, that if valid have the force and effect of statutes, without conferring levels of power on a single individual or institution that it should find insupportable.

Number of Pages in PDF File: 16

Keywords: rulemaking, regulation, President, Unitary Presidency, delegation doctrine, discretion, Marbury, Youngstown

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Date posted: October 10, 2009 ; Last revised: December 16, 2009

Suggested Citation

Strauss, Peter L., Legislation that Isn't - Attending to Rulemaking's Democracy Deficit (October 9, 2009). California Law Review, Forthcoming; Columbia Public Law Research Paper No. 09-222. Available at SSRN: https://ssrn.com/abstract=1486221

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Peter L. Strauss (Contact Author)
Columbia Law School ( email )
435 West 116th Street
New York, NY 10025
United States
212-854-2370 (Phone)
212-854-7946 (Fax)
HOME PAGE: http://www.law.columbia.edu/faculty/pstrauss.html

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