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Tuesday, March 15, 2016

A Question About Political Realignment and Public Law

What might political realignment mean for American public law?  That's a question I'm asking as I watch the primary returns tonight.  With Donald Trump doing well but not winning Ohio, the possibility of a contested convention for Republicans looms larger.  And a contested convention might mean the break up of the GOP as we know it.  Whatever the GOP does about Trump, David Frum argues, "[t]his election closes a long period in American politics." 

In recent years, public law scholars have asked what partisan polarization means for constitutional and administrative law.  For example, Jessica Bulman-Pozen has described federalism in terms of partisanship, arguing that "[c]ompetition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within."  Partisan polarization also matters for the separation of powers and administrative law; Gillian Metzger, for instance, has recently argued, "[p]olarization, or at least polarization combined with divided government, warps [the] web of agency controls in significant ways." 

All of which leads me to wonder, will we open a new period in American public law as we close one period in American politics? 


Posted by Seth Davis on March 15, 2016 at 11:38 PM | Permalink


Marc, thank you for the link to your fascinating post on longer-term trends in ideological fragmentation and public law. I agree those of us who write on the subject are pushed towards precision by ideological fragmentation, and that's a good thing.

Jeff, we may already be seeing some increased judicial skepticism towards deference to executive governance. I think of the shrinking domain of Chevron, as, for example, the Court expands the major question exception. I think you're right that trend would accelerate --- quickly! --- in the event of a Trump presidency.

Posted by: Seth Davis | Mar 18, 2016 1:25:07 PM

Nice post. I'm not sure that the election of either one will matter all that much. There are perhaps some larger and longer trends at play with respect to ideological fragmentation and public law in which Trump or Clinton would fit (though in different ways). I had some thoughts about this over here: http://mirrorofjustice.blogs.com/mirrorofjustice/2015/01/the-ideological-fragmentation-of-public-law.html

Posted by: Marc DeGirolami | Mar 16, 2016 10:53:39 AM

If (and I still think it's a big "if") Trump wins the presidency, I wonder whether we will see increased scholarly and judicial skepticism toward broad deference to governance by executive discretion.

Trump would concern liberal and conservative administrative scholars alike. It is much easier, at least as a matter of human nature, to embrace administrative governance when it asserts plausible claims of neutral expertise or is grounded in a political regime one finds admirable. If Trump governs like he campaigns, legal academics and judges for the most part may see little of either in a Trump presidency. This suggests a flight toward greater judicial scrutiny of administrative action or perhaps a more intense championing of independent agencies.

This is more a point of academic realism than principle, but I think there's something to it. I'm no political or legal historian, but I don't admin law has ever confronted a populist administrative regime.

Posted by: Jeff Pojanowski | Mar 16, 2016 9:59:36 AM

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