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date: 14 April 2021

Abstract and Keywords

This chapter explores the dynamics of delegation, accommodation, and methodological inconsistency underlying constitutional jurisprudence on the administrative state. It considers whether broad delegations and the combination of legislative, executive, and judicial power within administrative agencies are fundamentally at odds with both constitutional separation-of-powers principles and due process. It also examines elements of the Constitution that illustrate intermixing among the legislative, executive, and judicial branches, as well as elements that allow for flexibility and change. It discusses the permeability of constitutional and ordinary law, with emphasis on the lack of transparency in the Supreme Court’s jurisprudence on the administrative state. Finally, the chapter emphasizes the constitutional role that ordinary law plays and how it can improve current separation-of-powers jurisprudence.

Keywords: delegation, accommodation, methodological inconsistency, constitutional jurisprudence, administrative state, separation of powers, Constitution, constitutional law, ordinary law, Supreme Court

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