Things to Read This Week (11/10)

Interesting things by writers who are not law professors

1. Originalism and the Illusions of Objectivity, by Tim Sandefur — why one of the foremost objectivist lawyers is not an originalist. I am not an objectivist, and I am an originalist, so obviously I don’t agree with this one, but have learned from my disagreements with Sandefur for more than two decades, going back to the old Crescat days.

   (Sandefur also has been on a roll with harsh book reviews lately, including this one of Joseph Ellis, and this one of two Sumner biographies. As with last week, I link to them without taking a position on whether they are fair, as I haven’t read the books.)

2. Bruen, Levels of Generality, and Our Historical Tradition of the Regulatory “Why” by Kevin Wang. An originalist/traditionalist account of levels of generality, a nice and real contribution to the evergreen level of generality problem. Seems generally consistent with the Jud Campbell rights program as well. (Via Ilan.)

3. Crimes Without Law: Administrative Crimes and the Non-Delegation Doctrine, by Nicolas Elliott-Smith — cited by Judge Bumatay’s recent dissent from the denial of en banc rehearing in US v. Pheasant.

4. An Outline of Congress’s Interest in the Slaughter Case, by Michael Stern. Some very interesting arguments about the relationship between agency power and officer removability, related to standing, severability, order-of-operations, and more. Here is one paragraph:

   If the FTC or other agencies have been granted powers which cannot be constitutionally delegated to independent multimember boards, the exercise of those powers may be challenged by private parties who have been injured by them, as occurred in Free Enterprise Fund, Seila Law, and Collins v. Yellen. However, the Court should not follow the approach of those cases in striking down the removal limitations and only then considering whether the removal limitations are severable from the remainder of the statute. Instead, it should recognize that the existence of an independent agency is not itself constitutionally problematic, but only the exercise of unconstitutional powers by such an agency.

   (My own somewhat different way of thinking about this derives from some of the things I wrote in Severability First Principles.)