How Three Implicit Legal Ideas Have Sidelined Congress and Empowered the President and the Courts

Prof. Merrill is giving the Hallows Lecture at Marquette tonight on this subject, and I’m delighted to report that he’ll also be guest-blogging on it here this week. Here’s the abstract of the lecture:

Why has Congress, the constitutional keystone of the federal government, become so ineffective, relative to the president and the federal judiciary? While many explanations have been offered, one important but unappreciated reason is legal ideas—not just widely discussed concepts such as the unitary executive and originalist interpretation of the Constitution but also, and perhaps even more importantly, unstated ideas that have taken hold without much explicit discussion or acknowledgment.

This lecture will identify and discuss three largely unquestioned ideas that have combined to deform our constitutional regime. Their result has been that the president wields immense power in the guise of issuing orders and binding regulations and the courts exercise great power in the guise of interpreting the Constitution and laws, while Congress stands largely out of the picture. While there is no magic incantation for restoring a proper constitutional balance, an important first step is to recognize the role that unstated ideas have played in the transformation, so that they can be unmasked and debated in the open.

Thomas W. Merrill is the Charles Evans Hughes Professor of Law at Columbia University. He is one of the nation’s most widely respected and often-cited law professors, with an unusual range of expertise, including constitutional, administrative, environmental, and property law. His recent books include The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022). Merrill is also an accomplished lawyer, serving as deputy solicitor general of the United States from 1987 to 1990, where he argued twelve cases before the Supreme Court, practicing law for a number of years at Sidley & Austin, and continuing to engage actively today in the profession beyond the academy.

This annual lecture remembers E. Harold Hallows, a Milwaukee lawyer and a faculty member at Marquette Law School from 1930 to 1958 and a justice of the Wisconsin Supreme Court from 1958 to 1974 (chief justice the last six years).