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10 - Law
- from Part IV - America’s Regulatory Process
- Shanti Gamper-Rabindran, University of Pittsburgh
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- Book:
- America's Energy Gamble
- Published online:
- 06 January 2022
- Print publication:
- 13 January 2022, pp 369-412
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- Chapter
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Summary
Trump and his administration brazenly interpreted laws to expand the president’s powers to open public lands and seas to drilling, to limit states’ powers to protect their waters from oil and gas infrastructure, and to advance deregulation in the oil and gas sector. The district courts ruled against the Trump administration and federal agencies in several (but not all) instances, and with the Biden administration in power, many of these cases will not proceed to the higher courts. The more long-lasting legacy of the Trump administration is his reshaping of the federal judiciary, made possible with the support of the Senate majority leader Mitch McConnell, congressional Republicans and an array of conservative and corporate stakeholders. Judges’ views of the administrative state, i.e., as an ally in protecting individuals against powerful corporations or as a foe to personal liberty and property rights, often color their decisions. Trump nominated judges who are skeptical of the administrative state and who lean towards legal interpretations that limit Congress’s ability to enact expansive environmental laws and that limit agencies’ statutory powers. Trump’s appointments – three Supreme Court judges and more than a quarter of active federal court judges – shifted the courts toward deregulation.
THE FIDUCIARY SOCIAL CONTRACT
- Gary Lawson
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- Journal:
- Social Philosophy and Policy / Volume 38 / Issue 1 / Summer 2021
- Published online by Cambridge University Press:
- 11 October 2021, pp. 25-51
- Print publication:
- Summer 2021
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- Article
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The United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts.
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