William N. Eskridge (Yale University - Law School) has posted SUPER-CANONS on SSRN. Here is the abstract:
Since 2017, the Roberts Court has created a new public law regime justified by updated constitutional doctrines and new statutory clear statement rules. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the Court), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion. This Article maintains that the new regime is driven not entirely by constitutional and statutory precedents, nor entirely by a neutral reading of legal texts and original public meaning. Relevant legal materials are filtered through political philosophies valued by the majority Justices. Inspired by Friedrich von Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America is not an administrative state dictating enlightened plans for a structured market economy, a woke pluralism, and a society of rights-entitled citizens.
Can the Roberts Court’s vision and doctrinal regime change be defended? The political philosophies reflected in the Super-Canons are strongly related to the “Old Whig” tradition that forms an undeniable foundation of American constitutional history. And it is a vision that almost half the country seems to accept—but more than half the country has rejected. Also, the Super-Canons represent a challenge to the ability of the United States, and the world community, to confront the existential challenges facing us in the next thirty years. Finally, the Court’s monarchical tilt in its presidential powers jurisprudence is at war with the philosophies of the Super-Canons and with the rule of law itself.
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