The Abuse of Executive Power: Getting Beyond the Streetlight Effect

Abstract

While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.