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Articles 1 - 17 of 17
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Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove
Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
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
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 …
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
Tara L. Grove
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Tara L. Grove
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …
Takings Clause, Tara Leigh Grove
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Supreme Court Preview 2014-2015: Moot Court, Neal Devins, Michael Scodro, Andrew Pincus, Joan Biskupic, Garrett Epps, Irving Gornstein, Tara Leigh Grove, Allison Orr Larsen, Dahlia Lithwick, Erin E. Murphy, David Savage, Richard Wolf
Supreme Court Preview 2014-2015: Moot Court, Neal Devins, Michael Scodro, Andrew Pincus, Joan Biskupic, Garrett Epps, Irving Gornstein, Tara Leigh Grove, Allison Orr Larsen, Dahlia Lithwick, Erin E. Murphy, David Savage, Richard Wolf
Tara L. Grove
No abstract provided.
Standing Outside Article Iii, Tara Leigh Grove
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 …
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Tara L. Grove
No abstract provided.
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove
Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove
Tara L. Grove
A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article …
Article Iii In The Political Branches, Tara Leigh Grove
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 …
Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins
Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins
Tara L. Grove
Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …
Constitutional Dilemmas: Defense Of Marriage Act (Doma), Neal Devins, Tara Leigh Grove
Constitutional Dilemmas: Defense Of Marriage Act (Doma), Neal Devins, Tara Leigh Grove
Tara L. Grove
No abstract provided.