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Abstract: Administrative Law Theory and Fundamentals: An Integrated Approach takes a formalist approach to administrative law while defending more of the administrative state than other formalist accounts. It articulates a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice. It argues that there are “exclusive” functions that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” functions that can be exercised by multiple branches exercising their respective powers. This theory of exclusive and nonexclusive powers and functions allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly.
The casebook also innovates by more extensively discussing (and including in appendices) the 1852 steamboat legislation and the 1887 Interstate Commerce Act; deploying lessons of statutory interpretation as they arise in specific cases; interspersing online assessment questions for each chapter; and by including dedicated “debating” sections that excerpt from the secondary literature on the theory, values, and policy merits of contested doctrines such as deference, unitary executive power, the due process revolution, universal injunctions, and the new major questions doctrine. Finally, the book makes numerous organizational improvements, including by placing due process materials after Article III materials and restructuring materials on reviewability.
The second edition is updated to include several of the Supreme Court’s new “major questions” cases—including a section on “debating the major questions doctrine,” which excerpts from the latest secondary literature—new cases on appointment and removal of executive officers, and a more extensive discussion of the jury trial right in light of the Fifth Circuit’s recent holding in Jarkesy v. SEC that SEC enforcement actions seeking monetary penalties require a jury, and therefore an Article III court. (The Supreme Court heard oral argument in the case as this edition went to press.) These important new separation of powers cases validate this casebook’s formalist approach, which is the method of a majority of the Supreme Court, and its balanced look at history, constitutional structure, and the place of agencies in both.
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