Administrative Law Commentary

The Office of Information and Regulatory Affairs: Myths and Realities

Vol. 126 No. 7 Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author’s experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role.
Health Care Law Foreword

Democracy and Disdain

Vol. 126 No. 1 Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965 – the “crown jewel” of the Second Reconstruction – as a reason not for deference, but for suspicion: JUSTICE SCALIA: . . . What was the vote on this 2006 extension – 98 to nothing in the Senate, and what was it in the House? Was – MR. ADEGBILE: It was – it was 33 to 390, I believe. JUSTICE SCALIA: 33 to 390. You know, the – the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. In this Term’s argument in Arizona v. United States, an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able to utter a complete sentence. And during argument in National Federation of Independent Business v. Sebelius (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court’s existing cases “have allowed,” the presumption of constitutionality disappears, to be replaced by “a heavy burden of justification to show authorization under the Constitution.” The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that “It ain’t nothin’ till I call it.”
Election Law Article

Spatial Diversity

Vol. 125 No. 8 Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept – “spatial diversity” – that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most poor people live in another. But the district is spatially homogeneous if both rich and poor people are evenly dispersed throughout its territory. Spatial diversity matters, at least in the electoral realm, because it is linked to a number of democratic pathologies. Both in theory and empirically, voters are less engaged in the political process, and elected officials provide inferior representation, in districts that vary geographically along dimensions such as wealth and race. Spatial diversity also seems to animate much of the Court’s redistricting case law. It is primarily spatially diverse districts that have been condemned (in individual opinions) as political gerrymanders. Similarly, it is the spatial heterogeneity of the relevant minority population that typically explains why certain majority-minority districts are upheld by the Court while others are struck down.