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The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins Sep 2019

The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins

Neal E. Devins

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will be paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts ...


Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins Sep 2019

Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


Tom Delay: Popular Constitutionalist?, Neal Devins Sep 2019

Tom Delay: Popular Constitutionalist?, Neal Devins

Neal E. Devins

No abstract provided.


The Interactive Constitution: An Essay On Clothing Emperors And Searching For Constitutional Truth, Neal Devins Sep 2019

The Interactive Constitution: An Essay On Clothing Emperors And Searching For Constitutional Truth, Neal Devins

Neal E. Devins

No abstract provided.


The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins Sep 2019

The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins

Neal E. Devins

No abstract provided.


The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash Sep 2019

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Neal E. Devins

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status ...


The Constitution Between Friends, Neal Devins Sep 2019

The Constitution Between Friends, Neal Devins

Neal E. Devins

No abstract provided.


The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne's Testimony, Neal Devins Sep 2019

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne's Testimony, Neal Devins

Neal E. Devins

No abstract provided.


Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins Sep 2019

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Neal E. Devins

No abstract provided.


Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove Sep 2019

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Tara L. Grove

No abstract provided.


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Sep 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Tara L. Grove

No abstract provided.


Takings Clause, Tara Leigh Grove Sep 2019

Takings Clause, Tara Leigh Grove

Tara L. Grove

No abstract provided.


Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove Sep 2019

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 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 ...


Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins Sep 2019

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 ...


The First Amendment And The World, Timothy Zick Sep 2019

The First Amendment And The World, Timothy Zick

Timothy Zick

No abstract provided.


Our Exceptional Constitution, Timothy Zick Sep 2019

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.


Be It Resolved . . ., Timothy Zick Sep 2019

Be It Resolved . . ., Timothy Zick

Timothy Zick

No abstract provided.


An Anthem For Ows?, Timothy Zick Sep 2019

An Anthem For Ows?, Timothy Zick

Timothy Zick

No abstract provided.


Property's Constitution, James Y. Stern Sep 2019

Property's Constitution, James Y. Stern

James Y. Stern

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do ...


Washington Supreme Court Upholds State Anti-Spamming Law, Nathan B. Oman Sep 2019

Washington Supreme Court Upholds State Anti-Spamming Law, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman Sep 2019

Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman

Nathan B. Oman

No abstract provided.


The Resilience Of Property, Lynda L. Butler Sep 2019

The Resilience Of Property, Lynda L. Butler

Lynda L. Butler

Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms ...


How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins Sep 2019

How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins

Neal E. Devins

No abstract provided.


Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer Sep 2019

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

James G. Dwyer

No abstract provided.


Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton Sep 2019

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Vivian E. Hamilton

No abstract provided.


Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins Sep 2019

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Neal E. Devins

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 ...


Congress, The Court, And The Constitution: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, House Of Representatives, One Hundred Fifth Congress, Second Session, Charles T. Canady, Robert C. Scott, Louis Fisher, David P. Currie, Neal Devins, Neil Kinkopf, Nadine Strossen, Matthew J. Franck, Robert L. Clinton, Henry J. Hyde, Melvin L. Watt Sep 2019

Congress, The Court, And The Constitution: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, House Of Representatives, One Hundred Fifth Congress, Second Session, Charles T. Canady, Robert C. Scott, Louis Fisher, David P. Currie, Neal Devins, Neil Kinkopf, Nadine Strossen, Matthew J. Franck, Robert L. Clinton, Henry J. Hyde, Melvin L. Watt

Neal E. Devins

No abstract provided.


Better Lucky Than Good, Neal Devins Sep 2019

Better Lucky Than Good, Neal Devins

Neal E. Devins

No abstract provided.


Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins Sep 2019

Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins

Neal E. Devins

No abstract provided.