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The President And Individual Rights, Mark Tushnet
The President And Individual Rights, Mark Tushnet
William & Mary Bill of Rights Journal
No abstract provided.
Destructive Federal Decentralization, David Fontana
Destructive Federal Decentralization, David Fontana
William & Mary Bill of Rights Journal
This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power …
Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown
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 …
Judicial Autonomy V. Executive Authority: Which Prevails In The Case Of A Postcommutation Collateral Attack?, Vincent A. Marrazzo
Judicial Autonomy V. Executive Authority: Which Prevails In The Case Of A Postcommutation Collateral Attack?, Vincent A. Marrazzo
Notre Dame Law Review
An inmate with a commuted sentence will sometimes collaterally attack his already commuted sentence. This raises the question: Does an act of executive clemency divest the courts of authority to hear the collateral attack? In other words, does clemency moot the issues involved in the collateral attack? While multiple circuit courts have weighed in on this question, the Fourth and Sixth Circuits have developed the most robust discussions, disagreeing about whether federal courts may hear these cases. The Fourth Circuit has held that a collateral attack postcommutation is moot as the “President’s commutation order simply closes the judicial door.” In …
A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer
A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer
St. John's Law Review
(Excerpt)
“Boehner snubs [White House], invites Netanyahu to address Congress.” These words, or words remarkably similar, headlined newspapers all around the United States on January 21, 2015. Without consulting President Obama, House Speaker John Boehner invited Israeli Prime Minister Benyamin Netanyahu to address a joint session of Congress in opposition to the White House’s overtures to Iran with respect to its nuclear program. Speaker Boehner extended the invitation in apparent response to President Obama’s State of the Union Address, in which he informed Congress that any further economic sanctions bill against Iran at that time would be detrimental to ongoing …
The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker
Indiana Law Journal
In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch
stack of paper. But in the same year, federal administrative agencies promulgate
80,000 pages of regulations—which makes an eleven-foot paper pillar. This move
toward electorally unaccountable administrators deciding federal policy began in
1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than
elected representatives, unelected bureaucrats increasingly make the vast majority
of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three
areas: delegation, deference, and independence.
This trend is about to be reversed. In the coming years, Congress will …
The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt
The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt
Channels: Where Disciplines Meet
How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of these …
Taxing Combat, Samuel Kan
Taxing Combat, Samuel Kan
Dickinson Law Review (2017-Present)
When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.
We don’t know exactly where we’re at in …
When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson
When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson
William & Mary Bill of Rights Journal
This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress.
Executive Branch Fact Deference As A Separation Of Powers Principle, Emily A. Kile
Executive Branch Fact Deference As A Separation Of Powers Principle, Emily A. Kile
Indiana Law Journal
This Note concludes that, although Zivotofsky I provides a basis for judicial review of the legality of the Obama Administration’s “hostilities” determination (and, by extension, other questions of statutory interpretation related to foreign affairs), that review could be blunted by judicial deference to the executive branch’s factual determinations relevant to whether the Libyan airstrikes constituted “hostilities” within the War Powers Resolution. By addressing the political question doctrine’s history and the response to Zivotofsky I, this Note will explore whether the political question doctrine—particularly in cases of statutory interpretation—has lost some of its force as a justiciability doctrine. This Note will …
Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec
Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec
Pepperdine Law Review
Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of …
The American Dream: Daca, Dreamers, And Comprehensive Immigration Reform, Heather Fathali
The American Dream: Daca, Dreamers, And Comprehensive Immigration Reform, Heather Fathali
Seattle University Law Review
On June 15, 2012, President Obama made an announcement that changed the lives of millions. Effective immediately, the Obama administration would implement a new program—what would come to be known as Deferred Action for Child-hood Arrivals (DACA)—offering eligible undocumented young people both a two-year respite from the haunting possibility of deportation as well as the eligibility to apply for employment authorization. While millions were elated by the President’s announcement, he also faced harsh criticism. Many claimed that his action exceeded federal statutory limits, exceeded his Executive powers, and usurped congressional authority. Still others, anxious to see comprehensive immigration reform implemented, …
Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman
Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman
Pepperdine Law Review
No abstract provided.
United States V. Alvarez-Machain: Kidnapping In The "War On Drugs" - A Matter Of Executive Discretion Or Lawlessness?, Michael G. Mckinnon
United States V. Alvarez-Machain: Kidnapping In The "War On Drugs" - A Matter Of Executive Discretion Or Lawlessness?, Michael G. Mckinnon
Pepperdine Law Review
No abstract provided.
Federalism And Preemption In October Term 1999, Jonathan D. Varat
Federalism And Preemption In October Term 1999, Jonathan D. Varat
Pepperdine Law Review
No abstract provided.
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Pepperdine Law Review
No abstract provided.
Partisan Conflicts Over Presidential Authority, Jide Nzelibe
Partisan Conflicts Over Presidential Authority, Jide Nzelibe
William & Mary Law Review
No abstract provided.
Signing Statements And Divided Government, Neal Devins
Signing Statements And Divided Government, Neal Devins
William & Mary Bill of Rights Journal
No abstract provided.
The On/Off Switch, Philip Heymann
The On/Off Switch, Philip Heymann
William & Mary Bill of Rights Journal
No abstract provided.
Presidential Signing Statements In Perspective, Nelson Lund
Presidential Signing Statements In Perspective, Nelson Lund
William & Mary Bill of Rights Journal
No abstract provided.
Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane
Presidential Signing Statements And The Rule Of Law As An "Unstructured Institution", Peter M. Shane
William & Mary Bill of Rights Journal
No abstract provided.
Litigating Presidential Signing Statements, Michele Estrin Gilman
Litigating Presidential Signing Statements, Michele Estrin Gilman
William & Mary Bill of Rights Journal
No abstract provided.
Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper
Signing Statements As Declaratory Judgments: The President As Judge, Phillip J. Cooper
William & Mary Bill of Rights Journal
No abstract provided.
Clinton, Kosovo, And The Final Destruction Of The War Powers Resolution, Geoffrey S. Corn
Clinton, Kosovo, And The Final Destruction Of The War Powers Resolution, Geoffrey S. Corn
William & Mary Law Review
No abstract provided.
Executive Privilege: The Clinton Administration In The Courts, Neil Kinkopf
Executive Privilege: The Clinton Administration In The Courts, Neil Kinkopf
William & Mary Bill of Rights Journal
Exploring the role of the judicial branch of the federal government in Clinton-era executive privilege claims, Neil Kinkopf suggests that courts have misunderstood executive privilege. Professor Kinkopf points out that federal courts have given different treatment to executive privilege claims asserted in judicial and congressional arenas, protecting the Judiciary from encroachment by the executive branch, while avoiding becoming involved in controversies among the political branches. He argues that the judicial confusion about executive privilege stems from the fact that courts have interpreted cases such as Clinton v. Jones to be about the separation of powers between the executive and judicial …
Executive Privilege And Interbranch Comity After Clinton, Jonathan L. Entin
Executive Privilege And Interbranch Comity After Clinton, Jonathan L. Entin
William & Mary Bill of Rights Journal
Although both constitutional theory and practical considerations offer powerful reasons for Congress and the President to prefer negotiation rather than litigation of separation of powers disputes, the Clinton Administration litigated and lost several important cases dealing with presidential power. Some commentators have suggested that these rulings will undermine the presidency for years after Clinton leaves office. Professor Entin assesses some factors, notably the phenomenon of divided government, that might have contributed to the difficulty of reaching interbranch accommodations in recent years and suggests that the long-term implications of the adverse judicial rulings may be less severe than the pessimists fear.
Separation, Politics And Judicial Activism, Wallace Mendelson
Separation, Politics And Judicial Activism, Wallace Mendelson
Indiana Law Journal
Symposium: Separation of Powers
Introduction To The Separation Of Powers Symposium
Introduction To The Separation Of Powers Symposium
Indiana Law Journal
No abstract provided.
Separation Of Powers And International Executive Agreements, Arthur W. Rovine
Separation Of Powers And International Executive Agreements, Arthur W. Rovine
Indiana Law Journal
Symposium: Separation of Powers
Seedtime Of An American Judiciary: From Independence To The Constitution, William F. Swindler
Seedtime Of An American Judiciary: From Independence To The Constitution, William F. Swindler
William & Mary Law Review
No abstract provided.