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At an AEI symposium on Friday, three top-level conservative and libertarian legal professors discussed how the Executive Branch — specifically the Obama administration — is undermining America's constitutional commitment to the rule of law through a surreptitious expansion of executive power.
John McGinnis of Northwestern University School of Law argued that vague constitutional statutes mean actual lawmaking is done secretly, isolated from the democratic rule of law and heavily influenced by special interests. The result, suggested McGinnis, is a large and inefficient administrative engine — but one that could be improved by mandating cost-benefit analysis for new regulations and by relying more on markets to govern regulation.
Nicholas Quinn Rosenkranz of Georgetown University Law Center then emphasized the importance of the "faithful execution" clause, discussing the need for a substantive clause that compels the executive to follow Congress' words and intent in executing statutes. He pointed to the Obama administration's record of "pick-and-choose" enforcement tactics as evidence of need for reform.
John Yoo of the University of California, Berkeley, School of Law discussed how the non-delegation doctrine has eroded in theory and practice. Pointing to Obamacare and the Dodd-Frank Act, Yoo noted how Congress has delegated lawmaking power to insulated agencies not subject to many legislative and judicial checks. Yoo then proposed concrete solutions to these issues — such as a universal sunset schedule — that could tighten the reins on insulated rulemaking decisions.}
-- Brad Wassink
Following another divisive but peaceful election, America’s democracy and its rule of law appear robust. Closer examination, however, reveals that the country’s separation of powers and constitutional order are being progressively undermined, creating a democratic rule of law far different from what the Founders envisioned.
Join five of the nation’s top conservative legal minds to discuss these pressing national concerns. The panel will explain how vague congressional statutes open the door to special-interest influence at the rulemaking level, and how the judiciary fails to protect democratic control over lawmaking. The discussion will then turn to avenues for reform: What role should the executive play in this process? How could reforming the Administrative Procedures Act benefit markets and civil society? How can the “faithful execution” clause be more clearly defined?
This will be the first conference in a series titled “Law, Liberty, and Free Enterprise.”
If you are unable to attend, we welcome you to watch the event live on this page. Full video will be posted within 24 hours.
Registration and Lunch
Henry Olsen, AEI
John McGinnis, Northwestern University School of Law
Nicholas Quinn Rosenkranz, Georgetown University Law Center
John Yoo, University of California, Berkeley, School of Law
Henry Olsen, AEI
Question and Answer Session
Henry Olsen, AEI
For more information, please contact Brad Wassink at [email protected] or 202.862.7197.
For media inquiries, please contact [email protected] or 202.862.5829.
John McGinnis is a scholar of constitutional and international law and a former editor of the Harvard Law Review. He clerked on the US Court of Appeals for the District of Columbia. From 1987 to 1991, he was deputy assistant attorney general in the Office of the Legal Counsel at the US Department of Justice. McGinnis was appointed by the US Trade Representative to be part of the roster of Americans who can serve on World Trade Organization dispute-settlement panels. He is a past winner of the Paul Bator award given by the Federalist Society to an outstanding academic under 40.
Henry Olsen, a lawyer by training, is the director of AEI's National Research Initiative. In that capacity, he identifies leading academics and public intellectuals who work in an aspect of domestic public policy and recruits them to visit or write for AEI. Olsen studies and writes about the policy and political implications of long-term trends in social, economic, and political thought.
George Priest is the Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship at Yale Law School. Over the past two decades, he has focused his research on antitrust, the operation of private and public insurance, and the role of the legal system in promoting economic growth. Priest joined Yale Law School in 1981 and is co-director of the John M. Olin Center for Law, Economics and Public Policy. Earlier, he taught law at the University of Chicago; the University at Buffalo–State University of New York; and the University of California, Los Angeles. Priest is also chairman of AEI’s Council of Academic Advisers.
Nicholas Quinn Rosenkranz teaches constitutional law and federal jurisdiction at Georgetown University School of Law. He has served and advised the federal government in a variety of capacities. He first clerked for Judge Frank H. Easterbrook on the US Court of Appeals for the Seventh Circuit (1999–2000) and later for Justice Anthony M. Kennedy at the US Supreme Court (October Term 2001). He has also served as an attorney-adviser in the Office of Legal Counsel at the US Department of Justice (November 2002–July 2004). Rosenkranz is a member of the New York Bar and the US Supreme Court Bar. He is an associate fellow of Pierson College at Yale University, and a senior fellow at the Cato Institute. He also serves as co-chairman of the board of visitors of the Federalist Society, and as the faculty adviser to the Georgetown Chapter.
John Yoo has been a professor of law at the University of California, Berkeley, School of Law since 1993. He served as a deputy assistant attorney general in the Office of the Legal Counsel of the US Department of Justice from 2001 to 2003, where he worked on issues involving foreign affairs, national security, and the separation of powers. He also served as general counsel of the Senate Judiciary Committee from 1995 to 1996. He is the author of “Crisis and Command: A History of Executive Power from George Washington to George W. Bush” (Kaplan Publishing, 2010), “War by Other Means: An Insider's Account of the War on Terror” (Atlantic Monthly Press, 2006), and “The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11” (University of Chicago Press, 2005).