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Monday, June 29, 2020

The APA and the Passive Virtues

Some of the Chief Justice's recent opinions lead me to think that Alexander Bickel's list of passive virtues should be updated to include finding an action "arbitrary and capricious" under the APA. I do not believe that Bickel discussed the APA, though my copy of The Least Dangerous Branch is in my office where I can't go right now.

In other words, the Chief Justice's decisions invalidating government action on APA grounds for the citizenship question on the Census or the repeal of DACA create no  real substantive precedent for future cases. It's not a decision not to decide at all, as a classic passive virtue such as mootness would be. But it's clos.

On a separate note, I am nearly done with the draft of my Bushrod Washington biography. When the draft is complete, I'll be ready to share more and pick up the blogging pace.


Posted by Gerard Magliocca on June 29, 2020 at 09:30 PM | Permalink


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