Replacing O’Connor on Federal Power & Executive Authority

by Jonathan H. Adler

Replacing O’Connor on Federal Power & Executive AuthorityWith all of this discussion about how replacing Justice O’Connor with a Justice Alito would alter the “balance” of the Court ignore the context of some of O’Connor’s opinions. In Hamdi, Justice O’Connor was significantly more deferential to executive authority than the Court’s most noted proponent of the “unitary executive” theory, Justice Scalia. (It was, after all, Justice Scalia who dissented alone in Morrison v. Olson.) It’s also worth remembering that Justice O’Connor was as willing to limit federal regulatory authority on federalism grounds as any Justice on the Court, dissenting in the Raich case, as well as in earlier, less controversial, cases such as South Dakota v. Dole.

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