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Exhuming Nondelegation . . . Intelligibly, Zachary R.S. Zajdel

Fordham Journal of Corporate & Financial Law

Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, …

Standing, Equity, And Injury In Fact, Ernest A. Young

Notre Dame Law Review

This contribution to the Notre Dame Law Review’s annual Federal Courts Symposium on “The Nature of the Federal Equity Power” asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the Symposium, that equity does not have causes of action as such—or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on …

Aggregate Stare Decisis, Kiel Brennan-Marquez

Indiana Law Journal

The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

The President And Individual Rights, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

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

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

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 …

All For Nothing?: Executive Authority And Congressional Evasion On Arms Sales, Margaret M. Murphy

Catholic University Law Review

On August 17, 2018, CNN reported that Lockheed Martin manufactured a bomb that killed dozens of Yemeni schoolchildren in Northern Yemen. Saudi Arabia purchased the bomb in an arms deal authorized under the Arms Export Control Act, the statute in which Congress delegates to the President authority to control the import and export of arms. Under the Act, the President must comply with reporting and waiting periods allowing time for Congress to oppose a sale by enacting a joint resolution. However, the Act allows the President to sell arms in an emergency without notice or waiting periods. President Trump invoked …

What's The Harm? Federalism, The Separation Of Powers, And Standing In Data Breach Litigation, Grayson Wells

Indiana Law Journal

This Comment will argue that the Supreme Court should analyze standing in data breach litigation under a standard that is deferential to state statutory and common law. Specifically, federal standing analysis should look to state law when determining whether an injury is concrete such that the injury-in-fact requirement is met. Some argue that allowing more data breach cases to proceed to the merits could lead to an explosion of successful litigation and settlements, burdening the federal courts and causing economic losses for the breached businesses. These concerns may be valid. But if state law provides a remedy to the harm …

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 …

Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug

Indiana Law Journal

This Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the …

Federal Magistrate Court Of Appeals: Whether Magistrate Judge Disposition Of Section 2255 Motions Under Consent Jurisdiction Is Statutorily And Constitutionally Permissible, Corey J. Hauser

Washington and Lee Law Review

For decades the Supreme Court has balanced the tension between judicial efficiency and adherence to our constitutional system of separation of powers. As more cases were filed in federal courts, Congress increased the responsibilities and power given to magistrate judges. The result is magistrate judges wielding as much power as district judges. With post-conviction relief under § 2255, magistrate judges take on a whole new role— appellate judge—reviewing and potentially overturning sentences imposed by district judges.

This practice raises two concerns. First, did Congress intend to statutorily give magistrate judges this power? The prevailing interpretation is that § 2255 motions …

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 Right To Access To Justice: Its Conceptual Architecture, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The aim of this article is descriptive and analytical, rather than normative. This article aims to contribute to the current understanding of the ways in which modern legal consciousness builds, and is built by, the concept of access to justice. This concept, as part of the web of meanings that structures modern legal culture, provides the context in which modern subjects make sense of who they are and how they should interact with the world around them. This article examines the subjectivities, conceptual geographies, and interpretations of history created by the right to access to justice. It also examines a …

Leviathan Goes To Washington: How To Assert The Separation Of Powers In Defense Of Future Generations

Florida A & M University Law Review

The separation of powers was originally drawn from the common law of England, vindicated during the American Revolution as a fundamental bulwark against tyranny, and constitutionalized in the first three articles of the U.S. Constitution. It was adopted as an assurance that the present generation would not assert dead-hand control over the future of American society for mere efficiency, vanity, or greed. The separation of powers, therefore, exists to empower future generations to contend for their rights of life, liberty, and property. Both the long history of the separation of powers and the recent, controversial practices of multinational government contractors …

Taming Sherman's Wilderness, Derrian Smith

Indiana Law Journal

This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation …

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 …

Panel 5: Federalism And Separation Of Powers

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Stephen Griffin, Neil Kinkopf, and Ilya Somin

Constitutionality Of Non-Contentious Cases In Japan, Thomas Makoto Naruse

Japanese Society and Culture

In the United States, there was a debate on vesting Article 3 Court extrajudicial authorities, and United States Supreme Court have often denied vesting such authority. In contrast, in Japan, extrajudicial authorities (including those without element of dispute) are vested in courts since the age of Meiji Constitution, and only recently, questions are posed. Today, many scholars are struggling with this issue, and some approaches are shown: one is to conceive the limit of authority which courts can handle according to the distance from properly judicial power, which has dispute as the core element, and the other is to change …

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 …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Examining The Role Of Courts In Canada's Policy-Making Process, Patrick J. Mulligan

Bridges: An Undergraduate Journal of Contemporary Connections

This piece explores the apparent disjuncture between the prescribed duties of both the judicial and legislative branches of the Canadian government, and the genuine means by which such duties are attended to regardless of codified jurisdiction. Namely, this piece conducts a dual analysis - including both normative and descriptive components - in order to consider whether or not the Supreme Court of Canada has unduly encroached upon both the Provincial Legislature's and the Federal Parliament's duty to formulate legislation through their exercising of judicial review. In assessing the judiciary's role in policy-making, abstract considerations - such as the inherently undemocratic …

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.

You’Re Fired! Special Counsel Removal Authority And The Separation Of Powers, Adrianne C. Blake

University of Baltimore Law Review

No abstract provided.

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 …

Standing, Politics, And Exhaustion: A Response To Legislative Exhaustion, Heather Elliott

William & Mary Law Review Online

Professor Michael Sant’Ambrogio’s article, Legislative Exhaustion, usefully approaches the problem of “legislative standing” by abandoning the typical Article III standing analysis and making instead a separation-of-powers argument. His theory—that Congress may sue the President only when it has no legislative avenue for addressing its problems—provides both a workable account of and a limiting principle for suits by the legislative branch against the executive. His analysis, however, raises questions regarding the effect of legislative lawsuits on the constitutional balance of powers. This Essay suggests that these questions should be more fully explored before Professor Sant’Ambrogio’s approach can be adopted. It concludes …

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 …

Legislative Exhaustion, Michael Sant’Ambrogio

William & Mary Law Review

Legislative lawsuits are a recurring by-product of divided government. Yet the Supreme Court has never definitively resolved whether Congress may sue the executive branch over its execution of the law. Some scholars argue that Congress should be able to establish Article III standing when its interests are harmed by executive action or inaction just like private parties. Others, including most prominently the late Justice Antonin Scalia, argue that intergovernmental disputes do not constitute Article III “cases” or “controversies” at all. Rather, the Framers envisioned the political branches resolving their differences through nonjudicial means.

This Article proposes a different approach to …

The War Powers Consultation Act: Keeping War Out Of The Zone Of Twilight, Brendan Flynn

Catholic University Law Review

The Constitution divides the war powers between Congress, which declares war, and the President, who serves as Commander-in-Chief of the Armed Forces. Since the Korean War, the President has claimed increased authority to send the military into harm’s way without Congressional authorization. ­This Comment surveys the war powers issue through U.S. history and asserts that the President’s claim of increased authority has been enabled by Congressional abdication of its role, leading to­­ wars fought in a legal­­ “zone of twilight” in which Congress has neither authorized nor forbidden Presidential action (drawing on Justice Jackson’s famous tripartite analysis in his Youngstown …