As your article delves into the reasons for the Court viewing the Fed differently and some of the rationale you describe, it becomes harder to accept Chief Justice Roberts assertion that the Justices are like umpires. It seems much more like the Justices are making up the rules based on their policy preferences.
Sometimes us non-lawyers with realist inclinations are treated as overly cynical when we interpret much judicial decision-making in consequentialist, political terms, rather than in terms of legal doctrine.
Reading between the lines here though--correct me if I'm wrong--it sounds like the grounds for distinguishing the Fed from the FTC have everything to do with policy considerations, and basically nothing to do with law. Don't get me wrong I *like* the policy well enough--I want an independent Fed more than almost any other executive agency (though an independent FBI or DOJ would be nice right about now...)--but I would be curious if there's any textual or doctrinal basis for treating the Fed as special.
Thanks. Here is a brief and incomplete response: for many, "consequentialist" or functionalist considerations are a large part of what makes something "legal," especially as a matter of doctrine.
As your article delves into the reasons for the Court viewing the Fed differently and some of the rationale you describe, it becomes harder to accept Chief Justice Roberts assertion that the Justices are like umpires. It seems much more like the Justices are making up the rules based on their policy preferences.
Sometimes us non-lawyers with realist inclinations are treated as overly cynical when we interpret much judicial decision-making in consequentialist, political terms, rather than in terms of legal doctrine.
Reading between the lines here though--correct me if I'm wrong--it sounds like the grounds for distinguishing the Fed from the FTC have everything to do with policy considerations, and basically nothing to do with law. Don't get me wrong I *like* the policy well enough--I want an independent Fed more than almost any other executive agency (though an independent FBI or DOJ would be nice right about now...)--but I would be curious if there's any textual or doctrinal basis for treating the Fed as special.
Thanks. Here is a brief and incomplete response: for many, "consequentialist" or functionalist considerations are a large part of what makes something "legal," especially as a matter of doctrine.