Public Participation

An Effective and Easy Way to Challenge the Major Questions Doctrine

It is amazing  that with the simple stroke of a pen  judges can nullify, or at least lessen,  an established doctrine unilaterally notwithstanding their supposed adherence to stare decisis and do so with reckless abandon by avoiding any input from elected officials.

We recommend that our readers give consideration to the Common Law Initiative: The Public and Congressional Review of Judge-Made Law as discussed herein.

In a nutshell the Common Law Initiative is simply a coupling  of three interactive protocols [in quantum physics a possible triple coupling]  or in the alternative, the  development of a choice architecture as described in behavioral economics. In any event the resultant decision structure is the most critical component of addressing any  public policy issue–the institutionalization of the underlying message, in this instance: “The Common Law Initiative is an immediate  process for counteracting select decisions of SCOTUS”. Here are the three basic components of the Common Law Initiative so chosen after several years of consideration, debate and analysis.

(1) ACUS

(2) Interactive Public Docket

(3) Nudge

Work on the Common Law Initiative has been ongoing for several years:

 Academia.edu (1)

Academia.edu (2)

Academia.edu (3)

Academia.edu (4)

Center for Regulatory Effectiveness

                                             Implementation

One key to Congressional involvement is to keep the process for its intervention as streamlined as possible  with a minimal number of involved parties.

(1) President/Congress

The Common Law Initiative can be implemented either by the President directing ACUS to issue a request to agencies as noted in (2) below  or for Congress to enact a statute directing ACUS to take an identical action.

(2)  ACUS

ACUS would delineate a format that agencies will use in their development of a website where each agency will post on an Interactive Public Docket (IPD) an analysis of judicial rulings that inhibit the timely accomplishment of their statutory mandates.

The aforementioned IPD will also encourage the public to recommend for agency review and consideration troublesome judicial rulings. These public submissions would  include an analysis in support of their recommendation.

(3)  Agency

Once an agency has determined that a particular judicial ruling inhibits the timely accomplishment of its statutory mandates, the agency would include the said judicial ruling  in  the  Common Law Initiative List for Congressional action.  The agency designation would include a detailed analysis of the said judicial ruling including its compliance, or lack thereof, with relevant Executive Orders and related guidance issued by both the agency and the Office of Information and Regulatory Affairs the totality of which constitutes a nudge.

(4)  Agency

Upon publication of the Common Law Initiative List the agency, or its supporters, would publicize the  nudge which would include the following outreach program:

• distribution to the media
• presentations to leading members of Congress
• meetings with Executive Branch officials
• distribution to local newspapers
• distribution to affected parties

(5)  ACUS

ACUS would delineate for Congressional consideration a number of legal actions that could be taken to address the issues raised in the aforementioned Common Law Initiatives List, ranging from  utilizing the Congressional Review Act to the passage of corrective legislation.

(6) Congress

In those instances where a Member of Congress decides that a Congressional intervention is warranted, the resultant action would be supported by the actions set forth  above in the nudge, (3) above,  and would be conducted in accord with the  concerns expressed herein. At this stage a bill would be introduced to garner relief from a judicial decision using the aforementioned nudge as the basis for the action.

The Endgame   

Proposals to date to address judicial overreach are long on procedure but are short on data and in all instances require the enactment of legislation. The strategy outlined herein is  not encumbered by the aforementioned actions and by no means is it perfect but….it can be implemented immediately! Furthermore a potent nudge complemented by a compelling outreach program which is broadcast on a national website, all of which are overseen by a federal agency composed of leading experts from  every  major federal agency, leading universities and recognized practitioners will demonstrate that select judicial rulings will now be subject to a laceration previously considered to be audacious.

                                                   Progress Report