Biden's vaccine mandate is a good policy, but Congress needs to legislate it, rather than rely on agency regulation.
My research into 18th-century "vesting" suggests valid reasons for SCOTUS to revive the non-delegation doctrine. 1/ New @StanLRev draft: papers.ssrn.com/sol3/papers.cf…
2/ Let's start with "vesting" & the unitary executive theory, which is where I started.
Unitary theorists assume the word "vest" had special legal meaning (exclusive & indefeasible).
My research shows that the word "vest" had only a general simple meaning of granting power.
3/ E.g., Richard Epstein in his 2020 book:
“The use of the term ‘vested’ brings back images of vested rights in the law of property; that is, rights that are fully clothed and protected, which means, at the very least, that they cannot be undone by ordinary legislative action...
It's all shadows & cowardice.
Texas strategically avoids judicial review by giving enforcement to private parties.
Sotomayor:
"Texas has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures."
"By relying instead on citizen bounty hunters, Texas sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.
A breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women."
The Atlanta Hawks have an Israeli player named M. Heidegger.
He is a phenom. He can really husserl and turn a corner. He plays kierke-guard.
I hope they dasein some plays for him.
I guess you had to be there.
Maybe he can play for the Manhattan College Jaspers.
2/ Daniel Birk, Manners & Menand saw a problem for the unitary theory in Marbury.
Marshall wrote: "[W]hen the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal
rights which cannot be resumed..."
Marbury (CJ Marshall) cont.:
"The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him."
Why not?
Capital Delegation at the Founding:
Scholars @nicholas_bagley@jdmortenson & Nick Parrillo have found broad delegation by Congress to executive officials in the Founding Era.
I stumbled on another example:
The Residence Act, the 1790 statute creating the District of Columbia 1/
2/ The 1790 statute is here. And it is very short.
It was one of the most contentious debates of the first Congress, and it became part of the famous deal between Jefferson/Madison and Hamilton over assumption of state debt ("The Room Where It Happened"). www2.gwu.edu/~ffcp/exhibit/…
3/ The statute delegated power to a commission of 3 who "shall under the direction of the President survey, and by proper metes and bounds define and limit a district of territory, under the limitations above mentioned."
Those limitations?
Only this 70-mile span of the Potomac!