Table of Contents

The False Allure of the Anti-Accumulation Principle

Michael Herz, Yeshiva University - Benjamin N. Cardozo School of Law
Kevin M. Stack, Vanderbilt University - Law School

The Imperial Supreme Court

Mark A. Lemley, Stanford Law School

Comment Letter to the SEC on its Proposed Rule Regarding Climate-Related Risk Disclosures

Bernard S. Sharfman, RealClearFoundation, Law & Economics Center at George Mason University’s Antonin Scalia Law School, affiliation not provided to SSRN
James Copland, Manhattan Institute

Administrative Adjudication Records, Facial Constitutional Challenges, and a Risk to Procedural Due Process from Inflexible Supplementation on Judicial Review

David Hoffa, Michigan State University College of Law

Catastrophic Uncertainty and Regulatory Impact Analysis

Daniel A. Farber, University of California, Berkeley - School of Law


"The False Allure of the Anti-Accumulation Principle" Free Download
102 Boston University Law Review 925 (2022)
Cardozo Legal Studies Research Paper No. 682
Vanderbilt Law Research Paper No. 22-09

MICHAEL HERZ, Yeshiva University - Benjamin N. Cardozo School of Law
KEVIN M. STACK, Vanderbilt University - Law School

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, applied to its full extension, are vast. It would invite a new era of constitutional policing of the internal structure of the executive branch and administrative agencies.

This Article argues that separation-of-powers law contains no anti-accumulation principle. Unable to find textual support in the Constitution for this principle, proponents latch on to but misread James Madison’s famous statement that the “accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny.” Functional considerations—like fairness, avoiding the triumph of faction, and efficiency— also do not justify the anti-accumulation principle or its application internally to the executive branch.

The anti-accumulation principle is generally posited by jurists and scholars whose leanings are formalist and conservative. However, a set of liberal scholars commit the same error. More focused on checks and balances than on pure separation of powers, these scholars either defend or seek to reform the current structure of the executive branch. In doing so, they either invoke or assume the existence of an anti-accumulation principle, working from the premise that the principles that justified the allocation of power among the three branches must also apply within the executive branch.

While the executive branch needs greater constraint, separation of powers neither requires greater internal divisions nor provides a robust menu for reform. To the extent valid constitutional concerns underlie the anti-accumulation principle, they rest on due process and should be evaluated as such.

"The Imperial Supreme Court" Free Download

MARK A. LEMLEY, Stanford Law School

The past two years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative justices on the Court embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or Congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.

My goal in this essay is not to criticize these decisions on the merits, though there is much to criticize; lots of others will do that. Nor do I aim simply to make the legal realist point that the Justices will do what they want in the cases before them, though the last few terms provide ample evidence for that claim too. Rather, my argument is that the Court has begun to implement the policy preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself. The Court of late gets its way not by giving power to an entity whose political predilections are aligned with the Justices’ own, but by undercutting the ability of any entity to do something the Justices don’t like. We are in the era of the imperial Supreme Court.

"Comment Letter to the SEC on its Proposed Rule Regarding Climate-Related Risk Disclosures" Free Download

BERNARD S. SHARFMAN, RealClearFoundation, Law & Economics Center at George Mason University’s Antonin Scalia Law School, affiliation not provided to SSRN
JAMES COPLAND, Manhattan Institute

Dear Secretary Countryman,

We respectfully submit this letter as a means to bring to the Commission’s attention deficiencies that we have found in its proposed rule, The Enhancement and Standardization of Climate-Related Disclosures for Investors (“the Proposed Rule”). In our view, the Proposed Rule fails to comply with Congress’s demand that agency actions not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as interpreted by the Supreme Court to require an agency to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made.” Nor does the Proposed Rule comport with the “unique obligation” Congress has given the SEC to “to consider or determine whether an action . . . will promote efficiency, competition, and capital formation.” The Proposed Rule also runs afoul of the Constitution’s commitment to federalism and separation of powers, both by substantially interfering with corporate governance, a creature of state law, without an express Congressional mandate, and by resolving a “major question” of policy clearly within the province of the legislative branch. Because the Proposed Rule’s disclosure requirements are not “purely factual and uncontroversial,” they also implicate the First Amendment’s prohibition against government-compelled speech. Although our analysis can apply more broadly to much of the Proposed Rule, we are providing comments clarifying this critique in significant detail as to two Sections of Part II of the Proposed Rule: Section G: GHG Emissions Metrics Disclosure (“Section G”) and Section D: Governance Disclosure (“Section D”).

"Administrative Adjudication Records, Facial Constitutional Challenges, and a Risk to Procedural Due Process from Inflexible Supplementation on Judicial Review" Free Download

DAVID HOFFA, Michigan State University College of Law

Administrative adjudicators are not authorized to hear facial constitutional challenges. Because of this, challengers can raise facial constitutional claims against administrative statutes on judicial review, without first raising the issue before the agency. Yet, courts' ability to supplement administrative records on judicial review are overly restricted, even though challengers are attempting to make new arguments for the first time. Courts should have broad discretion to supplement administrative records, in order to avoid a risk to procedural due process caused by denying parties the ability to present evidence. Without a policy liberal in favor of the ability to supplement in this context, the right to petition the government for a redress of grievances is compromised when raising facial constitutional challenges against agency adjudication.