Digital Commons Network^™

Judicial Review In Public And Private Governance, Tomer S. Stein

Scholarly Works

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Mother Of Exiles: Hospitality & Comprehensive Immigration Reform, Ana M. Rodriguez

Journal of the National Association of Administrative Law Judiciary

This article examines the historical pattern of denying immigration in the U.S. on moral and supposedly Christian grounds. Although it is reasonable that no nation is duty-bound to welcome every foreigner and provide the same benefits afforded those with full citizenship, this article contends that a genuinely Christian response demands the biblical core value of hospitality to others. Indeed, xenophobia is the antithesis of hospitality and cannot be supported by a faithful, exegetical interpretation of the Christian Bible. It should be noted that this article does not propose the emergence of an American theocracy; however, hospitality-based dialogue and humanitarian principles …

The Immigration Court System: Unconstitutionality At The Hands Of The Executive To Push Nativism, Chloe Wigul

Journal of the National Association of Administrative Law Judiciary

The United States’ immigration court system is located within the U.S. Department of Justice’s Executive Office for Immigration Review and operated under the power of the attorney general. Consequently, the attorney general can review and overrule decisions made by the Board of Immigration Appeals, the immigration appellate body. If the attorney general uses this authority, his decision cannot be reconsidered, and his opinion becomes precedent. Immigration courts are unique in that no other court system is located within or controlled by the executive branch. Focusing on key historical eras, this Comment compares the development of immigration law and policy with …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the …

Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon

Belmont Law Review

No abstract provided.

Majestic Law And The Subjective Stop, Kyron J. Huigens

Faculty Articles

Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Disabling Fascism: A Struggle For The Last Laugh In Trump’S America, Madeleine M. Plasencia

Articles

Six years before the start of the Second World War and seven months after Hitler’s appointment as Chancellor of Germany, the German government instituted the “Law for the Prevention of Progeny with Hereditary Diseases.” The moral depravity that started as a sterilization program targeting “useless eaters” and lives “unworthy of life” degenerated into a “euthanasia” program that murdered at least 250,000 people with mental and physical dis/abilities as an “open secret” until 1941, when the Bishop of Munster, Clemens August Count von Galen, delivered a sermon protesting the killing of “unproductive people.”2 Although the Trump Administration has not yet driven …

Gundy And The Civil-Criminal Divide, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, …

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.

The Ecology Of Transparency Reloaded, Seth F. Kreimer

All Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

Elizabeth Keyes

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

King V. Burwell And The Chevron Doctrine: Did The Court Invite Judicial Activism?, Matthew A. Melone

Matthew A. Melone

No abstract provided.

The Dangerous Right To Food Choice, Samuel R. Wiseman

Seattle University Law Review

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right. The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Joel Hood

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are …

Anti-Corruption Commissions In China:Panacea Or Cure-All Medicine To Fight Corruption, Chan Louis

Chan Louis

With the rapidly economic development and the overall social transformation, corruption has becoming a more prominent threat to China's long-term development. The CPC and Chinese government, while severely cracking down corruption, has proposed a series of strategic thinking to fundamentally solve the problem of corruption. The sharp weapons against corruption in China are generally two institutions, which are Commission for Discipline Inspection responsible for the inspection within the party and the People's Procuratorate, one of key functions of which is prevention and punishment of corruption. A popular saying among Chinese government officials goes: “Fear not the heavens or the earth, …

Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong

Washington and Lee Journal of Energy, Climate, and the Environment

Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low …

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

Freedmen And Day Laborers: Why Enforcement Matters, Raja Raghunath

Raja Raghunath

As the one hundred and fiftieth anniversary of Emancipation approaches, there is a cautionary lesson for modern workers from the period that followed the abolition of chattel slavery. Reconstruction, after the Civil War, was the moment when the promise of universal liberty to work first became part of the American state’s covenant with its people. But this promise was quickly lost, as the rights that the federal government extended to the freed slaves – the freedmen – were contested and eventually nullified by vehement opposition in the working fields and cities of the South. In this sense, workers’ rights were …

Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman

Bruno PS Van Eck

The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. The authors recommend that the broad notion of “social protection”, rather than the narrower concept “social security” should be emphasized. International, continental and regional instruments providing protection to irregular migrants are traversed and the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa are compared. The article concludes that there are significant …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

Article 142: Incomplete Justice?, Harshad Pathak

Harshad Pathak

No abstract provided.

The Full Faith And Credit Clause: Do Factual Executive Documents Require Equivalent Treatment Between States?, Darren Prum

Darren A. Prum

Largely a development of the last half-century of government expansion, many of the health, safety, and welfare protections required by the federal government now fall upon the states. With the states picking up the load, many of the jurisdictions elect to administrate these duties through agencies. These agencies promulgate numerous regulations and enforce them as well. In making these laws and regulations, the government may require the public to submit documents that convey factual information in order to achieve the overall policy goal.

During these interactions with the public, the statute or regulations provide the guidance as to what qualifies …

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Mark L Noferi

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and …