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Constitutional Law

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Selected Works

2019

Separation of Powers

Articles 1 - 13 of 13

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Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins Sep 2019

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Neal E. Devins

No abstract provided.


Signing Statements And Divided Government, Neal Devins Sep 2019

Signing Statements And Divided Government, Neal Devins

Neal E. Devins

No abstract provided.


Should The Supreme Court Fear Congress?, Neal Devins Sep 2019

Should The Supreme Court Fear Congress?, Neal Devins

Neal E. Devins

No abstract provided.


The Lost History Of The Political Question Doctrine, Tara Leigh Grove Sep 2019

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Tara L. Grove

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …


When Can A State Sue The United States?, Tara Leigh Grove Sep 2019

When Can A State Sue The United States?, Tara Leigh Grove

Tara L. Grove

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …


Standing Outside Article Iii, Tara Leigh Grove Sep 2019

Standing Outside Article Iii, Tara Leigh Grove

Tara L. Grove

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …


A (Modest) Separation Of Powers Success Story, Tara Leigh Grove Sep 2019

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Tara L. Grove

No abstract provided.


Article Iii In The Political Branches, Tara Leigh Grove Sep 2019

Article Iii In The Political Branches, Tara Leigh Grove

Tara L. Grove

In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker Sep 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Katherine Mims Crocker

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …


How Not To Challenge The Court, Neal Devins Sep 2019

How Not To Challenge The Court, Neal Devins

Neal E. Devins

No abstract provided.


Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins Sep 2019

Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins

Neal E. Devins

No abstract provided.


Book Review Of The Second American Revolution, Neal Devins Sep 2019

Book Review Of The Second American Revolution, Neal Devins

Neal E. Devins

No abstract provided.


Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl Sep 2019

Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.