The Captive Audience Doctrine Today
R. George Wright
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Chevron Was Not, and Cannot Be, Overruled: The Dullness of Loper Bright
Edward L. Rubin
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As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo, that "Chevron is overruled." But the Court did not understand the decision that it claimed to overrule. It focused its criticisms on Chevron's notorious two-step test, but failed to recognize that the decision is a major conceptual advance – the first clear judicial recognition that statutory interpretation is the initial and invariably necessary stage in the process by which administrative agencies enforce the law. Chevron thus revealed a reality that the current Court is powerless to alter. Most administrative statutes are not the normative declarations of the pre-administrative era, but rather instructions to an agency that enable it to implement a social policy. Statutes of this type simply cannot be interpreted by a reviewing court de novo because most of their provisions do not state obligatory rules, but grant discretion to an agency, thereby empowering that agency to formulate the legal requirements that apply to private parties. The Loper Bright decision concedes this, as it must, which renders its opinion incoherent and ineffective. While it will certainly lead to reversals of particular administrative regulations that would previously have been upheld, it cannot change the basic features of our modern administrative state.
The opinion also fails to recognize the essential character of appellate review for administrative decisions, which is not to be part of the primary enforcement process, as it would be for a traditional, court-enforced statute, but to exercise collateral supervision of a separate institution staffed by officials with different training and expertise. This second reality will contribute to the ineffectiveness of Loper Bright because most conscientious courts will simply decline to second-guess the complex and technologically specialized decisions that agencies enact in the course of their enforcement process. Ironically, Loper Bright may inadvertently amplify Chevron's impact in many situations. By abolishing the decision's two-step test, the Court has dispensed with the term "ambiguity," an unfortunate misnomer, and allowed reviewing courts to recognize that legislative delegations to agencies are more properly described as "open-ended" – purposeful delegations to the agency rather than an inaccurate use of language.
"I'm Guilty, But I'm Not a War Criminal!": Fixing Treaty Crimes
Dyllan M. Taxman
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This Article examines the Supreme Court's test for treaty crime constitutionality against the gauntlet of time and application. Treaty crimes are criminal behavior violating statutes penalizing private individuals for disobeying the terms of an international treaty obligation. The current treaty crime test from Bond v. United States has produced inconsistent results resting on shaky constitutional grounds. This Article proposes a new test relying on constitutional delegations of authority and treaty drafting history to determine when a treaty crime statute violates the Tenth Amendment. It measures the new test's effectiveness by applying the test to cases in which the Bond test has produced problematic results.
In the ten years since Bond was decided, courts have clung to its language that a purported treaty crime implicates a federal interest and does not offend the Tenth Amendment if it has the potential to cause mass suffering. That has led lower courts to uphold convictions for minor offenses bearing little relation to treaty prohibitions. Some courts have used this language to overturn convictions for conduct clearly prohibited by treaties and abhorred by the international community. Others have used that test to expand federal authority in areas entirely unrelated to treaty crimes.
This piece proposes that courts should instead consider whether applying a treaty crime statute furthers the object and purpose of the treaty it implements. If conduct offends the underlying treaty's object and purpose, then criminalizing it is a necessary and proper means to effectuate the constitutionally-delegated federal treaty power. If the offense is unrelated to the treaty's object and purpose, then the Tenth Amendment prohibits applying a federal statute to the offense. This test relies on constitutional delegations of authority in the Treaty Clause, Supremacy Clause, and Necessary and Proper Clause. When applied to cases in which Bond's test produces undesirable or even absurd results, this Object and Purpose Test would punish offenses that violate valid treaties, while filtering out minor offenses unrelated to international prohibitions. This new test also closely tracks the international community's standard for treaty compliance, which requires treaty signatories to refrain from upsetting the treaty's object and purpose.
The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle
Samuel S.-H. Wang & Zachariah W. Sippy
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In the last decade, redistricting commissions have proliferated across the United States as a means of reducing partisan gerrymandering. This article provides a comprehensive evaluation of their performance using both qualitative and quantitative analysis. Drawing on redistricting data from all fifty states between 2021 and 2024, we analyze how different commission designs affected partisan fairness, competitiveness, and adherence to traditional principles like compactness and preservation of communities of interest. Our analysis reveals that autonomous commissions with final map-drawing authority, balanced bipartisan processes with multiple non-partisan actors, and binding judicial review consistently produced redistricting plans with lower partisan bias and higher electoral competition. These successful commissions were typically established through popular ballot initiatives. Conversely, commissions serving only in an advisory role, dominated by a single party, or lacking clear judicial oversight frequently saw their work undermined by legislatures pursuing partisan advantage. We conclude that autonomous commissions, created by and composed of citizens, provide the most effective available approach for curbing gerrymandering. The article concludes with recommendations for expanding the commission model for the 2030 redistricting cycle.
