Structure is back in style. Not as a throwback to fashions of the 1970s that pre-ceded the soft-look unstructured clothes of the 1980s. Rather than embracing Miami Vice, the attention to structure lauded here means, first, recognizing constitutional vices. In particular, the concern here is with a lack of appreciation for the character and importance of structural features of the U.S. Constitution.

This essay moves from the recognition of conflicts with the Constitution’s structural features to the next step. As courts more often recognize constitutional vices, the question of how to fix them—what remedies to adopt in cases that declare structures unconstitutional—becomes increasingly important. Confused responses from some recent court decisions underscore the importance of this task, which will be improved by understanding when judicial deference to another branch is and is not due. The answer to that question can be illuminated by considering an administrative law doctrine commonly known as Chevron, referring to a Supreme Court decision associated with one line of deference analysis. As explained later, the version relevant here, “constitutional Chevron,” is distinct from the administrative law version in being more clearly rooted in the Constitution’s separation of powers.

Continue reading Constitutional Chevron: Domains of Congress and Courts in Remedies for Unconstitutional Administrative Structures