Interesting post at Jotwell by Anne O'Connell about a new article, The Power to Privilege, by Mila Sohoni. Excerpt from Jotwell:
Sohoni’s forthcoming article, The Power to Privilege, is a rare and insightful article that examines the intersection of the rules of litigation and the administrative state. The article takes a seemingly obscure and ignored provision of the Patient Protection and Affordable Care Act (ACA)—authorizing the Secretary of Labor to issue regulations that “provide[] an evidentiary privilege for, and provide[] for the confidentiality of communications between or among” a plethora of federal and state officials and organizations—and persuasively demonstrates the likely costs of such a delegation.
That delegation of power to the executive branch is essentially at the expense of judicial power, for better or for worse.