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Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 University of Chicago Law Review 357 (1990)


At one of his earliest press conferences [Franklin] Roosevelt compared himself to the quarterback in a football game. The quarterback knows what the next play will be, but beyond that he cannot predict or plan too rigidly because "future plays will depend on how the next one works."

I shall argue that under the Constitution only our politicians are entitled to the flexibility of waiting to see how one play works before calling the next one. Our constitutional courts, on the other hand—and our Supreme Court in particular—have a different role in adjudication concerning the structure of government. Notwithstanding Justice Frankfurter's famous dictum, the courts in structural cases should act as referees, and their proper role in determining the legitimacy of an institutional innovation is rigid enforcement of the rules. When they do less, when they defer to congressional policy judgments about the way in which federal authority is most efficiently exercised, they are acting not as courts but as participants in the legislative process.

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