In Mortgage Bankers Association v. Harris, the D.C. Circuit held that an agency can not change an interpretation of one of its rules without engaging in notice and comment rulemaking. In this amicus brief filed on behalf of 72 professors of administrative law, Professors Pierce, Morrison, and Glicksman argue that the Supreme Court should grant cert. in the case and reverse the D.C. Circuit.
This amicus brief was filed before the United States Supreme Court, supporting the petition for certiorari in Florida Bankers Association v. United States Department of the Treasury, No. 15-969. The case concerns whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of challenges against the validity of Treasury regulations under the Administrative Procedure Act. The brief explains the context and implications of the resolution of that issue for federal tax system administration and also maintains that the D.C. Circuit disregarded clear evidence of congressional intent in favor of a narrow interpretation of the Anti-Injunction Act that would allow judicial review of pre-enforcement APA claims against Treasury regulations.
Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
A concise but thorough resource, the guide provides a time-saving reference for the latest case law, and the most recent legislation affecting rulemaking.
As constitutional scholar John Nowak noted when the book was first released, "Professor Choper's Judicial Review and the National Political Process is mandatory reading for anyone seriously attempting to study our constitutional system of government. It is an important assessment of the democratic process and the theoretical and practical role of the Supreme Court." That view is no less true today, as borne out by the countless citations to this landmark work over the decades, including scores in the last few years alone. It is simply part of the foundational canon of constitutional law and political theory, an essential part of the library of scholars, students, and educated readers interested in considering the hard choices inherent in what the courts should decide and how they should decide them.
