Article by Santiago Legarre and Andrew Chenevert
Reflections on Rulemaking Review
Congressional Limitations on Judicial Review of Rules
The Questioning of Supreme Court Nominees at Senate Confirmation Hearings: Proposals for Accommodating the Needs of the Senate and Ameliorating the Fears of the Nominees
Originalism and the Separation of Powers
Federalism and Separation of Powers on a "Conservative" Court: Currents and Cross-Currents from Justices O'Connor and Scalia
Normalizing the Separation of Powers
Intelligence Demands in a Democratic State: Congressional Intelligence Oversight
The Most Dangerous Directive: The Rise of Presidential Memoranda in the Twenty-First Century as a Legislative Shortcut
A Separation-of-Powers Defense of the "Presumption Against Preemption"
In Wyeth v. Levine, the United States Supreme Court revitalized the sometimes dormant “presumption against pre-emption” by declaring it one of two cornerstones of preemption jurisprudence. Under the presumption, the analysis of a claim that federal law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach--when it has bothered to mention the presumption at all.. . .