http://www.concurringopinions.com/archives/2006/03/three_interesti.html The Law, the Universe, and Everything Sun, 22 Nov 2009 08:31:00 -0700 http://wordpress.org/?v=2.8.3 hourly 1 http://www.concurringopinions.com/archives/2006/03/three_interesti.html/comment-page-1#comment-59880 David Zaring Wed, 22 Mar 2006 23:02:41 +0000 http://www.solove.org/archives/2006/03/three-interesting-things-about-the-new-source-review-decision.html#comment-59880 You can certainly read the opinion for support of that view, which is pretty classic Chevron step 1 analysis. You can certainly read the opinion for support of that view, which is pretty classic Chevron step 1 analysis.

]]> http://www.concurringopinions.com/archives/2006/03/three_interesti.html/comment-page-1#comment-59879 Scott Moss Wed, 22 Mar 2006 22:41:14 +0000 http://www.solove.org/archives/2006/03/three-interesting-things-about-the-new-source-review-decision.html#comment-59879 I'm not sure if this makes me an idealist or a cynic, but my hunch is that this was an easy textualist call for Judge Brown (and her panel-mates). I think the Bush administration has been repeatedly going quite far in asserting questionable statutory authority to implement its policies, including in the Gonzales v. Oregon case, the NSA wiretapping not-yet-a-case, and this case. When the administration does that, it can't count on support from notionally "conservative" judges who stick to their guns on (a) textualism and (b) the limited-government theory (akin to the dead old "non-delegation doctrine") of construing narrowly any asserted statutory authority for executive policy-making. I’m not sure if this makes me an idealist or a cynic, but my hunch is that this was an easy textualist call for Judge Brown (and her panel-mates). I think the Bush administration has been repeatedly going quite far in asserting questionable statutory authority to implement its policies, including in the Gonzales v. Oregon case, the NSA wiretapping not-yet-a-case, and this case. When the administration does that, it can’t count on support from notionally “conservative” judges who stick to their guns on (a) textualism and (b) the limited-government theory (akin to the dead old “non-delegation doctrine”) of construing narrowly any asserted statutory authority for executive policy-making.

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