Anya Bernstein (University of Connecticut School of Law) & Glen Staszewski (Michigan State University College of Law) have posted Populist Constitutionalism (Forthcoming, North Carolina Law Review, Vol. 101, 2023) on SSRN. Here is the abstract:
A Supreme Court majority has expressed hostility to administrative agencies. Yet, as this Article explains, agencies provide the primary site in our government for pluralistic contestation among disparate policy views. A political vision we identify as agonistic republicanism—a convergence among deliberative democrats, republican theorists, and agonism supporters—places such multilateral deliberation and debate among differing social groups at the foundation of democracy. A contrary view, authoritarian populism, imagines a single leader embodying the will of a unified people with little use for the institutional mediation of divergent views. This view, prominent in politics, enters legal theory through the rhetoric of judicial populism, which disparages contestation and the institutions that convene it.
Focusing on three increasingly prominent legal doctrines, we show how judicial populist jurisprudence undermines policy contestation and, with it, the very possibility of true democracy. First, anti-deference: attacking the Chevron framework for statutory interpretation lets courts choose the meaning of laws that Congress addresses to agencies. Second, nondelegation: limiting the authority statutes can give agencies allows courts to dictate how Congress legislates. And third, major questions: barring agencies from regulating important issues leaves courts to set the scope of public policy. Along with unitary executive theory, these doctrines move power from the government institutions most responsive to pluralistic contestation—Congress and agencies—to those least subject to it—the President and the courts.
Transferring power to the least contestatory branches stands in clear tension with a commitment to democracy in a pluralistic society. Yet proponents paint it as not just neutral but necessary under the Constitution—a view naturalized through decades of sociopolitical activism that has transformed our legal culture. To do so, they draw on populist images of a unitary people in need of protection from government bureaucrats, but not from one another. This Article argues instead that administrative action, presidential policy, and judicial doctrine should support the contestatory—and thus democratic—potential of our government.
Highly recommended.
