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Chevron's Liberty Exception, Michael Kagan Jan 2018

Chevron's Liberty Exception, Michael Kagan

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This Article argues that the Supreme Court’s practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, and also has seemed reluctant to do so in cases concerning immigration detention. It is a logical extension of the established rule that Chevron deference does not apply to questions of criminal law. By contrast, the Court applies Chevron ...


A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen Jan 2017

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

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The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny ...


Standing For (And Up To) Separation Of Powers, Kent H. Barnett Apr 2016

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

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The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural ...


Making Sense Of Legislative Standing, Matthew I. Hall Jan 2016

Making Sense Of Legislative Standing, Matthew I. Hall

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Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing ...


A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan Jan 2015

A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan

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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized ...


Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge Jan 2015

Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge

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The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that ...


Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell May 2012

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

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From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was ...


The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett Jun 2011

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

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This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director ...


Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee Jan 2001

Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee

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In Printz v. United States (1997), the Court held that certain sections of the Brady Handgun Violence Prevention Act were unconstitutional. Until the Attorney General set up a national system, the Act required the chief local law enforcement official to make certain background checks. The Court held that Congress exceeded its authority by requiring local law enforcement officials to take this action. Writing for the majority, Justice Scalia “conclude[d] categorically . . . ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.” ’ The Court offered two justifications. First, these commands to the states are “fundamentally ...


Terrorism And The Constitution, Christopher L. Blakesley Jan 1987

Terrorism And The Constitution, Christopher L. Blakesley

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How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances ...