Law Commons^™

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct …

Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One of Professor Lawson’s first students, alluding to a 1985 article with the provocative title “Why Professor [Marty] Redish Is Wrong about Abstention,” declared that his ambition was to inspire someone to write an article entitled “Why [the student] Is Wrong about XXX.” The student claimed that, regardless of what filled in the “XXX,” this event would be the pinnacle of academic accomplishment.

If that view is even close to the mark, then having an entire conference devoted to explaining why Professors Lawson and Seidman are wrong about the Constitution is an extraordinary honor. In all seriousness, we are genuinely …

Fiduciary Constitutionalism: Implications For Self-Pardons And Non-Delegation, Ethan J. Lieb, Jed Handelsman Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign's exercise of its political power must be constrained by fiduciary standards-like the duties of loyalty and care-is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclusions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must "take Care that the Laws be faithfully executed" and take an oath or affirmation to 'faithfully execute the Office of President." These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …

Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed Handelsman Shugerman

Faculty Scholarship

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …

Manufactured Emergencies, Robert L. Tsai

Faculty Scholarship

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …