En Banc

Jul. 17, 2023 | Nicholas Almendares | 76 Vand. L. Rev. En Banc 1

Response to Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 VAND. L. REV 1 (2023)

Nielson and Walker argue persuasively that Congress flexing its anti-removal power muscles is constitutional. They point to the Senate’s clear role in appointments enshrined in Article II and the ways that the Supreme Court has, perhaps unwittingly, strengthened Congress’ anti-removal power. Yet anti-removal power runs directly counter to the presidential accountability principle the Court has articulated. To the extent anti-removal power is effective it lessens the president’s control over the agency. That is rather the point. The president retains some control, anti-removal power is not absolute, but then again, neither is statutory removal protection. Moreover, the Supreme Court has said recently that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” Given the current pattern in the caselaw, I see little reason why the Court would not extend this logic to multimember agencies. The Court went on to argue that the president must be able to remove agency personnel for any reason, including, crucially, “different views of policy.” I just wonder if a Supreme Court truly committed to such complete presidential control of agencies might balk at Nielson and Walker’s proposal. There is no question that reducing presidential control is the very goal of the anti-removal tools Nielson and Walker lay out. In this way, anti-removal power is a “wolf [that] comes as a wolf.”

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John Crawford | 75 Vand. L. Rev. En Banc 55 (2022) |

The People’s Ledger is meant to offer “a blueprint for reform that would radically democratize access to money and control over financial flows in the nation’s economy.” Admitting that radical reform of the current system demands consideration, and that democratizing money is desirable, in this Response, I will critically evaluate the set of proposals put forward in The People’s Ledger along the dimensions of radicalism and democratization, while also suggesting reasons to embrace or reject parts of the program. What The People’s Ledger adds to prior FedAccounts proposals, and what grounds its claims to radicalism, lies first and foremost in its call for fundamental changes to how money is created. To this end, the Article proposes four “new” methods of money creation. I will suggest that two of these methods are unobjectionable but, at core, not new; that a third method is new but unadvisable; and that the fourth proposed method is new and radical, but possibly not radical enough. With respect to certain other issues The People’s Ledger addresses—shadow banking and determining the rates at which the Fed would lend to banks—I suggest that the proposal needs to be more radical. Finally, I will explore what strikes me as a deep ambiguity in The People’s Ledger with respect to what democratizing the Fed’s balance sheet means, or should mean, and its implications for the Fed’s popular legitimacy, as well as the quality of its policymaking going forward.

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Darryl K. Brown | 75 Vand. L. Rev. En Banc 205 (2022) 

This piece is a response to Daniel Epps & William Ortman, The Informed Jury, 75 VAND. L. REV. 823 (2022).

Professors Daniel Epps and William Ortman argue that it could. In their Article The Informed Jury, Epps and Ortman propose that trial judges inform juries about the authorized sentences attached to the charged offenses presented to them before they decide whether defendants are guilty of those charges. The idea flies in the face of more than a century of practice in state and federal courts; law in almost every U.S. jurisdiction prohibits jurors from being told the possible sentencing consequences of conviction (capital murder charges excepted).Why, after all, do jurors need to know? Save in a half-dozen states (and again in capital cases), jurors have no role in sentencing.Whether a defendant is guilty of a crime is one question; what punishment he should receive if guilty is another. Jurors are assigned the first; judges (or sometimes statutes) settle the second.

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Roderick M. Hills, Jr. | 75 Vand. L. Rev. En Banc 215 (2022)

This piece is a response to Ben Silver, Nondelegation in the States, 75 VAND. L. REV. 1211, 1221 (2022).

There is much to like about Silver’s article: it is analytically sharp, doctrinally comprehensive, and written with clarity and grace. Moreover, on the substance, Silver is surely correct that one cannot understand judicial concerns about delegation without accounting for courts especially disfavoring certain sorts of delegatees. It is a familiar point, for instance, that state courts often express special suspicion of delegations to private organizations, noting that private actors’ self- interest and lack of any electoral tie to voters undermines popular control of lawmaking. With admirable ambition to synthesize the doctrine, Silver insists that “the Sovereignty view of nondelegation must not be conflated with a straightforward rule against delegations to private entities.”Instead, “the rule against private delegations is a particular instance of a much broader rule against delegating outside the state government,” encompassing judicial decisions limiting delegations to private parties, municipalities, plebiscites, or municipal corporations.

I am inclined, however, to be skeptical about the explanatory force of Silver’s separation-of-powers/sovereignty dichotomy. As I explain in more detail below, the judicial concerns underlying suspicion of municipalities, plebiscites, and private organizations are simply too divergent to be explicable as manifestations of some single impulse to protect the abstract value of sovereignty.

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Ashraf Ahmed | 75 Vand. L. Rev. En Banc 223 (2022)

This piece is a response to Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 VAND. L. REV 769 (2022).

The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their strategy is different. Instead of directly critiquing the Supreme Court’s power, they target the ideology that undergirds it. In particular, they identify the work of John Hart Ely as responsible for animating continued liberal belief that a powerful Supreme Court is both necessary and desirable for democracy. Ely famously justified judicial review on two grounds: it was necessary for protecting political minorities against systemic bias and ensuring a competitive political process by “clearing the channels of political change.” While scholars have closely scrutinized Ely’s proceduralism in the decades that followed Democracy and Distrust’s publication, Moyn and Doerfler contend that his real influence—indeed his “ghost”—lives on through the “two empirical conjectures he makes that mainstream liberals share.” Even if Ely’s theory has fallen out of fashion, liberal confidence in the Court has endured because contemporary thinkers continue to hold on to Ely’s assumptions.

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