Distinguished Speaker Lecture: The Trump Transition and American Administrative Law

20 March 2017


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About the lecture

America has a new President, and one can say - because his Republican party also controls both houses of the American Congress - it has a new government. Unlike parliamentary systems, the American Constitution does not assure its chief executive political control of the legislature; the chance for divided government arises every two years with legislative elections and in fact our government had been divided since the by-elections of 2010 ended Democrat control of the House of Representatives. For six years, Republicans in the House and the Senate used their control of those bodies so to frustrate legislative activity that "broken" and "dysfunction" were common descriptions. President Obama and his administration, thus unable to secure legislative cooperation, used their existing authorities aggressively to achieve their policy purposes, to an extent strongly criticized as excessive and, in relation to immigration policy, found unlawful. Republicans proposed numerous measures to promote congressional control over administrative actions but, facing presidential vetoes and the strategies of the Democrat minorities in Congress, none were enacted. Now, however, Republicans are in control, as Democrats were in the first two years of President Obama's tenure. These measures, that would substantially complicate the process of adopting regulations, and enhance levels of both congressional and judicial control of administrative outcomes, are again on Congress's plate.

The future appears to hold significant possibilities of rebalancing the relationships of our Congress, President and Court, among themselves and to the administrative bodies responsible for domestic government's daily work. President Trump, reflecting his campaign rhetoric, has issued executive order after executive order during his first ten days in office embodying the views both that he is in charge, and that regulation has been excessive. His authoritarian stance builds on an attitude towards the presidency that has been steadily growing at least since President Richard Nixon's incumbency -- that the President is not just responsible to oversee, but is entitled to command the work of executive government. Congress's highly partisan opposition to President Obama during his last six years in office had prompted him, even more than Presidents Bush and Clinton before him, to claim ownership of a variety of regulatory actions using authority that Congress had conferred on administrative bodies, not the President. President Trump appears to be furthering this trend.

Unlike parliamentary systems, peopling the political layers of American government requires Senatorial consent. This process is slow and contentious, and can produce undertakings different from the President's preferences. Its early signals suggest that President Trump's controls over agency actions may be imperfect; yet he also appears to be placing substantial responsibilities in political operatives in the Executive Office of the President, who need not be confirmed. Administrative law inevitably straddles the worlds of politics and law; Professor Strauss's talk, informed by events occurring after writing this abstract, will explore their evolving balance.

About the speaker

Peter L. Strauss, the Betts Professor of Law at Columbia Law School, joined its faculty in 1971.He received his LL.B. from Yale Law School in 1964 and his A.B. from Harvard College in 1961. Before joining the Law School, he clerked for David L. Bazelon and William J. Brennan in Washington, D.C.; spent two years lecturing on criminal law in the national university of Ethiopia; and three years as an attorney in the Office of the Solicitor General, briefing and arguing cases before the U.S. Supreme Court. During 1975 to 1977, Strauss was on leave from Columbia as the first general counsel of the United States Nuclear Regulatory Commission.

Professor Strauss is a widely published, leading scholar of American administrative law, and senior author of its most enduring teaching materials. His scholarly writings have tended to focus on structural issues in American government, and the American process for creating regulations, as well as issues of statutory interpretation. In 1987, the American Bar Association's section of administrative law and regulatory practice presented Strauss with its third annual award for distinguished scholarship in administrative law. In 2008, the American Constitution Society awarded him the first Richard Cudahy prize for his essay "Overseer or 'The Decider'? The President in Administrative Law." And in 2015, his faculty honored him with a festschrift, since published in Volume 115 of its Law Review. A life member of the American Law Institute, Strauss was elected in 2010 to the American Academy of Arts & Sciences.

Throughout his career, Professor Strauss's work has often sought to explain American administrative law to lawyers and law students in other legal systems, as in his most recent book, Administrative Justice in the United States (3d ed. 2016). He has been a visitor at the European University Institute, the Max Planck Institute for Comparative Public, the University of Buenos Aires, and the Ludwig Maximillian University of Munich, Germany, and has also lectured in Australia, Belarus, Brazil, Canada, China, Colombia, England, France, Germany, Greece, Hong Kong, India, Italy, Japan, the Netherlands, New Zealand, Spain, Turkey, and Venezuela.

CPD Points: 1

Time: Registration from 5.30pm. 6-7pm lecture, followed by cocktail reception

Location: Law Foyer, Level 2, New Law Building (F10), Eastern Avenue, University of Sydney

Cost: Full Fee $15; SLS Alumni $10; Student $10

Contact: Professional Learning & Community Engagement

Phone: 02 9351 0248

Email: 470211683f0510592d1402261f300b522a051526275c3305