Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the unemployment effects exceed an unarticulated threshold, that is, seem “too high.” Agencies do not reveal the threshold, do not explain why certain unemployment effects are excessive, and do not explain how they compare unemployment effects and the net benefits of the regulation. Many agencies also predict unemployment effects incorrectly. The proper approach is for agencies to incorporate unemployment effects into cost-benefit analysis by predicting the amount of unemployment that a regulation will cause and monetizing that amount. Recent economic studies suggest that monetized cost of unemployment is significant, possibly more than $100,000 per worker. If agencies used this figure, there could be significant consequences for a wide variety of regulations.
Issue 3
Unconstitutional Conditions: The Irrelevance of Consent
The unconstitutional conditions problem is the Gordian Knot of constitutional law. The standard solution is to cut through the knot with consent–to conclude that consent excuses otherwise unconstitutional restrictions. Of course, this leaves open the danger that the government can evade most of its constitutional limitations, and the literature on unconstitutional conditions therefore focuses on when consent has a curative effect and when it does not. In other words, the conventional analysis uses consent to hack half-way through unconstitutional conditions, but not all the way. It thereby creates many loose ends, without fully solving the problem. Indeed, current doctrine on unconstitutional conditions is widely recognized to be as incoherent and inconsistent as it is important.
It therefore is necessary to reconsider the reliance on consent. Rather than a solution that can cut through the problem, consent is the source of confusion.
This Article unravels the different roles of consent to understand what it can do and what it cannot. On this basis, the Article concludes that consent is irrelevant for restrictions that go beyond the government’s power. Undoubtedly, under the Constitution’s enumerated powers, consent often allows the government to impose restrictions it could not impose directly. But this does not mean that consent can justify the government in going beyond its legal limits. The Constitution’s limits on the government’s authority are legal limits imposed with the consent of the people. Therefore, private consent (whether from individuals or institutions) cannot alter these limits or otherwise enlarge the government’s constitutional power.
This is most clear as to the separation of powers and the enumerated rights. Most of these limits, unlike the enumerated powers, do not define government power in terms of consent. As a result, there is no question of whether consent allows the government to impose restrictions it could not impose directly. Instead, the question is merely whether private consent can relieve the government of its constitutional limitations, permitting it to do what the Constitution forbids. Therefore, at least as to the separation of powers and the enumerated rights, the government cannot do by consent what it could not otherwise do by law.
Yoder Revisited: Why the Landmark Amish Schooling Case Could—And Should—Be Overturned
Wisconsin v. Yoder is a case in which the United States Supreme Court held that Amish children could not be compelled by the state to attend school past eighth grade, as this would violate their parents’ Free Exercise rights. This Note asserts that Yoder is an obsolete opinion that is ripe for overturning.
The Supreme Court takes into account four stare decisis factors when reconsidering a prior decision. It considers (1) whether the factual circumstances have evolved in such a manner “as to have robbed the old decision of significant application or justification,” (2) whether the decision is subject to reliance interests that would create “special hardships or inequities” if it were overruled, (3) whether “related principles of law have so far developed as to have left the old decision no more than a remnant of abandoned doctrine,” and (4) whether the decision has proven to be unworkable.
This Note holds that the Yoder decision does not hold up under these considerations. It contends that (1) the factual assumptions that underpin Yoder are no longer accurate and that recent changes have undermined the decision, (2) that the Yoder exemption is not subject to reliance interests that would create “special hardships or inequities” if it were overturned, (3) that the Court’s ruling in Employment Division v. Smith has leftYoder a relic of abandoned doctrine, and (4) that the “hybrid-rights” theory that Yoder’scontinued applicability rests on is unworkable.
The Note concludes that because Yoder fails each of the four stare decisis tests, the decision should be overturned.