Law Commons^™

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein, Gary S. Lawson, Jack M. Beermann

Faculty Scholarship

In a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count …

Just-Right Government: Interstate Compacts And Multistate Governance In An Era Of Political Polarization, Policy Paralysis, And Bad-Faith Partisanship, Jon Michaels, Emme M. Tyler

Indiana Law Journal

Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) …

Supreme Court Legitimacy Under Threat? The Role Of Cues In How The Public Responds To Supreme Court Decisions, Laura Moyer, Scott Boddery, Jeffrey Yates, Lindsay Caudill

Journal of Race, Gender, and Ethnicity

Understanding how the public views the Court and its rulings is crucial to assessing its institutional stability. However, as scholars note, “People are broadly supportive of the court and believe in its ‘legitimacy’—that is, that Supreme Court rulings should be respected and followed. But we don’t know that much about whether people actually agree with the case outcomes themselves.” In this article, we highlight empirical research investigating the factors that affect public agreement with Court decisions, highlighting recent developments from our work. At the onset, it is to note that the public generally hears about the Court’s decisions from media …

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, …

Blacking Out Congressional Insider Trading: Overlaying A Corporate Mechanism Upon Members Of Congress And Their Staff To Curtail Illegal Profiting, Nicholas Gervasi

Fordham Journal of Corporate & Financial Law

Congressional insider trading involves members of Congress or their staff trading on material, nonpublic information attained while executing their official responsibilities. This type of private profit-making, while in a government role, casts doubt on the efficacy and impartiality of lawmakers to regulate companies they hold shares of. Egregious acts of illegal profiting from insider trading based on information entrusted to the government escape prosecution and liability due to fundamental gaps in the common law and the Congress specific statutes lack enforcement. Recent calls on Congress by the public and multiple bipartisan proposed bills in both chambers have begun to address …

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …