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Document Type

Note

Publication Date

Winter 2021

Publication Citation

96 Indiana Law Journal 637 (2021)

Abstract

This Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the actual dynamics of interbranch relations.

This Note explores those motivations in detail by examining the motivations driving Congress to grant its interpretive authority to an administrative agency under Chevron. Ultimately, I conclude that Congress faces the same competing motivations when granting its interpretive authority to an administrative agency as when deciding to engage in a long-standing historical practice. As a result, understanding how the Court interprets congressional motivations in the Chevron context should inform how the Court views congressional motivations in the context of constitutional liquidation and historical gloss. Moreover, because Chevron is likely to be reformed in the near future, future changes to Chevron should indicate when and to what extent the Court will find constitutional liquidation or historical gloss persuasive in separation of powers debates.

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