Law Commons^™

Executing The Laws Or Executing An Agenda: Usurpation Of Statutory And Constitutional Rights By The Department Of Justice, Christopher C. Sabis

University of Michigan Journal of Law Reform

The Department ofJustice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ's ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties.

This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third …

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Foreign Affairs: Presidential Initiative And Congressional Control, David P. Currie

Michigan Law Review

Jefferson Powell is one of our foremost scholars of constitutional history. He is particularly adept at bringing extrajudicial sources to bear on constitutional issues. Owing perhaps in part to his extensive service in the Department of Justice, he has a special facility for the use of executive materials; he is surely our leading academic expert on executive interpretation of the Constitution. In his latest book Professor Powell applies his enviable skills to the recurring, fundamental, and controversial question of the division of authority between the President and Congress in the realm of foreign affairs. As is always the case when …

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

Articles

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …