Severing Unconstitutional Amendments
Thanks to John Brinkerhoff, Abbe Gluck, Ted Lee, Daryl Levinson, Scott Levy, and Mike Showalter for helpful comments and conversations. Thanks also to the careful editors at the University of Chicago Law Review. All errors are our own.
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T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.
Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.
Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.
Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.
For helpful comments on earlier drafts, many thanks to Tomiko Brown-Nagin, Jessica Bulman-Pozen, Christine Desan, Einer Elhauge, Elizabeth F. Emens, Marie-Amélie George, Noah Glass, Jeffrey Gordon, Annette Gordon-Reed, Jamal Greene, Ariela J. Gross, Hendrik Hartog, Bert I. Huang, Freya Irani, Olatunde C. Johnson, Jeremy Kessler, Ryan Liss, Kenneth W. Mack, Jane Manners, Henry P. Monaghan, Shaun Ossei-Owusu, Christina Duffy Ponsa-Kraus, Vlad Perju, David Pozen, Alex Raskolnikov, Martha A. Sandweiss, Carol Sanger, Matthew A. Shapiro, Emily Stolzenberg, Sarah L. Swan, Sean Wilentz, and Rebecca E. Zietlow, as well as the editors of The University of Chicago Law Review and participants in the Columbia Law School Associates and Fellows Workshop, the Harvard Legal History Workshop, and the American Society for Legal History.
In the midst of a New England winter long ago, young people of Boston filed into a drafty meeting hall up the road from the harbor. They had assembled on that January morning in 1839 for the seventh annual meeting of the New England Anti-Slavery Society.
Political sociologist Claus Offe has diagnosed the participatory deficit in North Atlantic democracies as the product of an imbalance in state–market relations. When the market is supreme, public policy can do little to constrain the market’s ever-expanding realms.