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Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations' doctrinal marginalization does not affect the political branches equally, but instead enhances executive branch and presidential power over appropriations at the expense of Congress. Yet legal doctrines governing ap­propriations should have the opposite effect because constitutional text, struc­ture, and history make clear the central importance of Congress's appropria­tions power. Appro­priations' doctrinal marginalization undermines the sep­aration of powers even further by undercutting political accountability through Congress and creating de facto presidential spending authority, with the executive branch able to violate governing statutes on appropriations with minimal legal consequences. This Article then turns to the question of what taking appropriations seriously might mean for public law doctrine. It concludes that appropriations exceptionalism is not problematic if it reflects the re­alities of the appropriations process and does not downplay appropria­tions' significance. Doctrines should attend to the separation of powers dynam­ics raised by appropriations and reinforce Congress's power of the purse. Among other consequences, this leads to jurisdictional doctrines that put primacy on congressional enforcement of appropriations limits in court.

This Article on Richard Fallon's Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court's authority, what Fallon calls sociological legitimacy. After setting out Fallon's accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court's decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court's decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the Court's public legitimacy can be an appropriate factor in the Justices' decision making, but such consideration may end up actually harming the Court's reputation if undertaken openly and candidly as Fallon would seem to require.

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for "execution." Several factors have led to administrative law's currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on parts of the national bureaucracy. These bold assertions of administrative authority stem in part from Congress' inability to address pressing problems, with political polarization, intense partisanship, and near parity between the main parties often leading to legislative gridlock. The contemporary political climate also means that fights over administrative actions have become fierce and unrelenting. Moreover, the combination of these two developments – aggressive administrative advancement of presidential agendas in a deeply partisan and polarized world – has spurred a significant uptick in politically charged administrative law litigation, epitomized by the dramatic expansion in red state and blue state lawsuits challenging executive branch actions they oppose. In addition, conservative groups have put sustained efforts into fostering academic attacks on core features of administrative government, efforts that have provided the intellectual scaffolding for today's doctrinal disputes. And, finally, there is the Trump administration's emphasis on selecting judges who are receptive to these conservative attacks on administrative governance in court.

Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump's administration has proclaimed the "deconstruction of the administrative state" to be one of its main objectives. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies' funding. Invoking the long-dormant Congressional Review Act (CRA), the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration. Other major legislative and regulatory repeals are pending, and bills that would impose the most significant restrictions on administrative governance since the Administrative Procedure Act (APA) was adopted in1946 – like the proposed Regulatory Accountability Act (RAA) – now stand a chance of enactment. This resistance to administrative government reflects antigovernment themes that have been a consistent presence in national politics since President Reagan's election in 1980. But the immediate trigger for the current resurgence of attacks on the administrative state is the national regulatory and administrative expansion that took place under President Obama.

It is hard to have strong feelings about the Twenty-Second Amendment. Much of the debate over presidential term limits is speculative, with little real evidence of their effect and arguments pro-and-con in equipoise. The convention of two-term presidencies that long-predated the Amendment complicates any effort to assess the measure. On balance, enacting the Twenty-Second Amendment may well have been a mistake, but repealing it now would be worse.

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have the potential to break through partisan divides and alter the political landscape. If nothing else, agencies' preexisting powers mean that the policy gridlock produced by polarization at the political level does not forestall policy development altogether This Essay, written in honor of Peter Strauss, aims to deepen current understanding of the relationship between administrative agencies and political polarization. Using Professor Strauss's insight that agencies exist in a web of control relationships as a launching point, the Essay probes how polarization affects these control relationships and the extent to which agencies can develop policy and potentially reshape partisan divides. Polarization, or at least polarization combined with divided government, hobbles proactive legislative direction, with the result that congressional oversight is exercised most frequently by inaction, delay, and budget constraints. These moves frustrate agencies' ability to function and meet emerging regulatory challenges, but also create new opportunities for unilateral executive branch action. Polarization and congressional dysfunction also result in greater presidential control of administration and heightens the salience of executive and judicial constraints on how agencies function. Yet focusing simply on the forces ...

From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of administrative law's disconnect from actual administration are complex and the divide is now longstanding, but it is also a source of concern given the increasing importance of internal administration for ensuring accountable government. This Article analyzes the contemporary manifestations and historical origins of administrative law's divide from public administration, as well as the growing costs of this disconnect. It also describes the Administrative Conference of the United States ("ACUS")'s exceptional status as the rare forum spanning the worlds of both administrative law and public administration, and the critical role ACUS can play in reasserting linkages between these two critical dimensions of government.

Administrative law and financial regulation might be thought closely connected, sharing a focus on federal regulation and intertwined at key historical junctures such as the birth of the New Deal administrative state. Yet, oddly, in many ways these two fields stand today poles apart, divided not simply by their separation in law school curricula and faculty, but even more by opposite precepts and framing principles. Modern U.S. administrative law takes notice-and-comment rulemaking as the paradigmatic example of administrative action, with the goal of such regulation often being to compensate for market deficiencies. Accountability, particularly political accountability through presidential and congressional oversight and legal accountability through the courts, is administrative law's central obsession. While financial regulatory agencies engage in notice-and-comment rulemaking, their regulatory mode is often more informal and hidden from public view, with the market serving as much as an arbiter of successful financial regulation as the object of regulators' attention. Here the defining structural precept is not accountability but independence, and the vast majority of financial regulators enjoy a range of independence protections, including protection from removal, budgetary autonomy, and exemption from White House regulatory oversight. This essay explores the historical contrasts between administrative law and financial regulation, with the aim of elucidating the contingent and contestable nature of each field's framing presumptions. Its aim is to provide the basis for a sustained and reciprocal engagement that will provide room for rethinking regulatory approaches in both. Indeed, in part as a result of the financial crisis that rethinking is already underway, and the essay also identifies ways in which the historical differences between these two fields are abating.

The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader discretionary governmental authority. The centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional law. This exclusion of administration takes a variety of doctrinal guises, but it surfaces repeatedly in both structural and individual rights contexts. This Article argues that the exclusion of systemic administration from constitutional law is a mistake. This exclusion creates a deeply troubling disconnect between the realities of government and the constitutional requirements imposed on exercises of governmental power. Just as importantly, the current doctrinal exclusion of administration stands at odds with the Constitution's text and structure, which repeatedly emphasize one particular systemic administrative feature: supervision. This emphasis on supervision is most prominently manifest in Article II's Take Care Clause, but it also surfaces more broadly as a constitutional prerequisite of delegation of governmental power. Whether it is rooted in Article II, general separation of powers principles, or due process, a duty to supervise represents a basic precept of our federal constitutional structure. Moreover, concerns about judicial role do not justify the Court's refusal to engage with systemic administration, and judicial recognition of a constitutional duty to supervise is critical even if the duty is entirely politically enforced. Indeed, recognizing a constitutional duty to supervise is as central to the overall project of constitutional interpretation as it is to the aim of better keying constitutional law to the realities of contemporary governance. Recognizing this duty underscores the need for greater attention to how courts can support constitutional enforcement by the other branches and highlights the porous and critical relationship between constitutional and subconstitutional law.

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court's engagement with the Clause in Noel Canning. But the relationship between the Clause's judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court's approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements. This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court's resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.

Administrative law and financial regulation have an uneasy relationship today. It was not always so. Indeed, the two were closely intertwined at the nation's birth. The Treasury Department was a major hub of early federal administration, with Alexander Hamilton crafting the first iterations of federal administrative law in his oversight of revenue generation and customs collection. One hundred and fifty years later, administrative law and financial regulation were conjoined in the New Deal's creation of the modern administrative state. This time it was James Landis, Chair of the newly formed Securities and Exchange Commission (SEC) and author of the leading defense of the new federal administrative government, who embodied the connection between administrative law and financial regulation. And the two fields have crossed paths periodically since, as demonstrated by the financial regulation decisions that have canonical status in administrative law and vice versa. Nor is this overlapping relationship surprising; financial regulation is, after all, a form of administrative governance to which the general transsubstantive requirements of administrative law would naturally apply.

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court's engagement with the Clause in Noel Canning. But the relationship between the Clause's judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court's approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements. This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court's resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.

The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader discretionary governmental authority. The centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional law. This exclusion of administration takes a variety of doctrinal guises, but it surfaces repeatedly in both structural and individual rights contexts. This Article argues that the exclusion of systemic administration from constitutional law is a mistake. This exclusion creates a deeply troubling disconnect between the realities of government and the constitutional requirements imposed on exercises of governmental power. Just as importantly, the current doctrinal exclusion of administration stands at odds with the Constitution's text and structure, which repeatedly emphasize one particular systemic administrative feature: supervision. This emphasis on supervision is most prominently manifest in Article II's Take Care Clause, but it also surfaces more broadly as a constitutional prerequisite of delegation of governmental power. Whether it is rooted in Article II, general separation of powers principles, or due process, a duty to supervise represents a basic precept of our federal constitutional structure. Moreover, concerns about judicial role do not justify the Court's refusal to engage with systemic administration, and judicial recognition of a constitutional duty to supervise is critical even if the duty is entirely politically enforced. Indeed, recognizing a constitutional duty to supervise is as central to the overall project of constitutional interpretation as it is to the aim of better keying constitutional law to the realities of contemporary governance. Recognizing this duty underscores the need for greater attention to how courts can support constitutional enforcement by the other branches and highlights the porous and critical relationship between constitutional and subconstitutional law.