While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.
I’m not in the habit of pumping other scholars’ stuff, least of all scholars with whom I often disagree and with whom I compete for ssrn rankings. I’ll cheerfully make an exception for Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po, on “Unorthodox Lawmaking, Unorthodox Rulemaking.” Excerpt from the abstract:
Major policy today is often the product of “unorthodox lawmaking” and “unorthodox rulemaking”—deviations from traditional process marked by frequent use of omnibus bills and multiple agency implementation; emergency statutes and regulations issued without prior comment; outsourcing to lawmaking commissions and unconventional delegates; process shortcuts outside of emergencies; presidential policymaking; and outside drafters, some nonpartisan and others hyperpartisan. These unorthodoxies are everywhere, and they have shifted the balance in the elected branches and beyond, often centralizing power in actors—like party leadership and the White House—not traditionally part of the core lawmaking and rulemaking processes.
None of this is news to consumers of this blog. However, especially for those consumers, this article is must-read: wide-ranging; erudite and well-informed; mercifully free from both the tendentiousness and the pretentious “conceptualization” jazz that, alas, characterizes much of the academic debate about these issues.
The obvious question is how do we get this “unorthodox” stuff under control? The authors note that formal, rule-of-law-ish constraints have tended to produce yet more unorthodox practices. That’s empirically right—and it’s a powerful reason for rule-of-law types to think beyond formalisms, about institutions and incentives.
The second half of the article is mostly for AdLaw dorks. (It’s a law review article, for Pete’s sake.) For those so inclined, though, the article—judicious throughout, though not always consonant with my own judgments and intuitions—holds important insights and ample food for thought. For example, its doctrine—not text or precedent, let alone some abstruse meta-theory of interpretation—that governs this universe and determines what happens within it. And the big doctrinal questions
likely have remained unanswered [by the courts] because the stakes are so high. For instance, there have been questions lurking beneath the surface of legislation theory for some time about the source of the doctrines of statutory interpretation. Courts have been reluctant to acknowledge those rules as “federal common law” … It has been much easier for federal courts to embrace the fiction that their interpretive doctrines derive from Congress itself: specifically, that they simply are reflective of congressional drafting practice. That is clearly not the case, and may never be the case. But for courts to use legal doctrine to directly try to influence the frequency or type of unorthodox policymaking would be for courts to acknowledge they are playing a much bigger role in this landscape than they have wished to acknowledge or take on.
Jackpot: totally right, on multiple counts. Now, think.