Reaganist Realism Comes to Detriot

36 Pages Posted: 24 Feb 2016

See all articles by Stephen F. Ross

Stephen F. Ross

The Pennsylvania State University (University Park) – Penn State Law

Date Written: 1989

Abstract

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that rely on techniques that have the foreseeable effect of obstructing congressional policy preferences. Specifically, opinions that defer to administrative interpretations, use "plain meaning" instead of other indicia of legislative intent, and impose constitutional limits on Congress' ability to delegate policy decisions to nonexecutive branch officials all result in aiding Republicans who now control the presidency and who predominate the judiciary. This benefit to the Republicans comes at the expense of a Democratic controlled Congress.

Finally, Part III argues that conservatives who did not know that liberal Democrats controlled Congress and that conservative Republicans controlled the Presidency and much of the federal judiciary would not prefer deference to administrators, reliance on "plain meaning," or constitutional straitjackets on congressional oversight of executive branch regulators. Indeed, such persons could be expected to reach the opposite result if blinded to the partisan realities of the post-Reagan era.

Suggested Citation

Ross, Stephen F., Reaganist Realism Comes to Detriot (1989). University of Illinois Law Review, Vol. 1989, No. 339, 1989, Penn State Law Research Paper, 1989, Available at SSRN: https://ssrn.com/abstract=2736501

Stephen F. Ross (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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