Law Commons^™

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Delegation, Administration, And Improvisation, Kevin Arlyck

Notre Dame Law Review

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …

Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh

Notre Dame Law Review

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

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 …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render

Notre Dame Law Review

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues that the Emoluments …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

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 …

Executive Authority And The Take Care Clause, Colleen E. O'Connor

Notre Dame Law Review

Part I of this Note will discuss the Department of Homeland Security’s authority to regulate immigration and focuses on DACA and DAPA. Part II will address the U.S. Department of Justice’s Office of Legal Counsel Opinion on DAPA’s legality. Part III will turn to the lack of judicial constraints on or legislative responses to the executive branch’s enforcement discretion. Part IV will propose that the executive branch should take a more active role in ensuring that the President remains faithful to the Take Care Clause when exercising prosecutorial discretion. Expounding upon the Office of Legal Counsel’s multifactor framework is a …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Notre Dame Law Review

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” …

Executive Orders As Lawful Limits On Agency Policymaking Discretion, Adam J. White

Notre Dame Law Review

After briefly retracing previous Presidents’ general uses of executive orders and debates over presidential power more generally, culminating with the late twentieth century executive orders on White House regulatory oversight, I review the case of Sherley v. Sebelius, in which the D.C. Circuit held that when an agency receives an executive order lawfully cabining or directing the its regulatory discretion, it is excused from its otherwise general duty to respond to rulemaking comments challenging its policy choice. Then, examining this general duty of agencies to respond to rulemaking comments, I consider whether the D.C. Circuit’s approach comports with the …

Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore

Notre Dame Law Review

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power—Justice Jackson’s tripartite framework and the historical gloss on executive power—congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …

Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski

Notre Dame Law Review

This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and “good cause” limitations on the President’s removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President’s appointment power—and with good reason, given the ubiquity of partisan balance requirements and the executive branch’s historical acquiescence to them. However, the Supreme Court’s decision in Free …

The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, Ronald J. Krotoszynski, Jr.

Notre Dame Law Review

The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively precluding its unilateral …

Why Should We Care About An Agency’S Special Insight?, Stephen M. Degenaro

Notre Dame Law Review

This Note offers some additional thoughts on the outer limits of Seminole Rock deference. Part I discusses the three concerns associated with unchecked Seminole Rock deference that comprise the self-delegation problem—violation of constitutional norms, exploitation of a statutory loophole, and perverse incentives. It explores the potential for abuse they create and recommends what the limitations should look like in order to avoid this potential. Part II explains the two rationales for Seminole Rock deference: the pragmatic and originalist rationales. It describes how the two rationales relate to each other, explains how courts use pragmatic and originalist arguments in their opinions, …

The Appointment And Removal Of William J. Marbury And When An Office Vests, Saikrishna Bangalore Prakash

Notre Dame Law Review

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s …