Regulation and the Administrative State

  • April 19, 2018
    Guest Post

    by William Funk, Lewis & Clark Distinguished Professor of Law Emeritus, Lewis & Clark Law School

    For more than a half century since the Administrative Procedure Act (APA) became law, everyone had assumed that a hearing examiner, whose title became Administrative Law Judge (ALJ) in 1978, was an employee, not an officer of the United States. Indeed, this belief predated the APA, as hearing examiners had been used by various agencies prior to the APA. Recently, however, that assumption has been questioned in a number of cases challenging the use of ALJs by the Securities and Exchange Commission (SEC).

  • April 12, 2018

    by Louis J. Virelli III, Professor of Law, Stetson University College of Law

    When he administered America’s first census in 1790, then-Secretary of State Thomas Jefferson had to know it would be an important event for America. In its original role, it was designed to provide an “actual enumeration” of the American population every ten years so the correct number of congressional seats and presidential electors could be apportioned for each state. The modern census is also a matter of public policy, as it affects the distribution of hundreds of billions of dollars annually in funding for programs ranging from Medicare and Medicaid to local education programs.

  • April 10, 2018
    Guest Post

    Joshua E. Weishart, professor of law and policy, West Virginia University. His scholarship focuses on constitutional rights to education.

    Originally published in The Los Angeles Times.

    Teacher strikes in West Virginia, Kentucky and Oklahoma manifested growing frustration with state disinvestment in public education over the past decade. But these protests and walkouts are not just a story about state budgets. Teachers are being forced to rise up in part because most state courts are shrinking from their duty to enforce the state constitutional right to education.

    All 50 state constitutions entitle children to a quality education. (The U.S. Supreme Court declined to recognize a comparable federal right under the U.S. Constitution.) For decades, many state courts enforced that right, striking down school funding schemes as inequitable and inadequate. State legislatures and governors mostly dragged their feet in response, achieving partial compliance with court orders at best. Still, court interventions led to increased funding that studies showed improved educational achievement.

  • April 4, 2018
    Guest Post

    Derek W. Black, Professor of Law, University of South Carolina School of Law

    West Virginia teachers recently went on strike to challenge salaries that are among the lowest in the nation and won. Teachers in Oklahoma and Kentucky are attempting the same, with rumblings that more states may follow. But these protests are really just a sign of a much bigger problem—states have been gutting public education on multiple levels for a decade. Public school funding is down dramatically. Voucher and charter funding is up exponentially. And brand new studies reveal that by cutting school spending by as little as 10 percent, states “reduced test scores” and graduation rates.

  • April 3, 2018
    Guest Post

    by Arturo Vargas, Executive Director of National Association, Latino Elected and Appointed Officials (NALEO) Educational Fund

    While the task of counting our nation’s residents only takes up a few words in Section 2 of Article I and the 14th Amendment of the Constitution, the Census’s impact on the day-to-day lives of Americans is fundamental. Never are the high stakes of a few words in the Constitution and a few minutes spent on a questionnaire once every ten years more apparent than when the Census nears, and debates once again arise over how to count the nation’s population. Last week, the U.S. Secretary of Commerce inserted itself in one of the fiercest such debates in decades by directing the U.S. Census Bureau to add an untested question about U.S. citizenship in the 2020 Census questionnaire.

    The mandate to conduct a Census in the U.S. Constitution is found in one of the most egregious original passages in our founding document:  the statement that enslaved persons were to count as 3/5 of one person for the purposes of reapportionment of Congressional seats. This misguided course was corrected with the adoption of the Reconstruction Amendments, leaving in place the requirement that the nation take an actual enumeration of every member of the population, on an equal basis, every ten years.