Law Commons^™

Climate Security Insights From The Covid-19 Response, Mark Nevitt

Indiana Law Journal

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

Abdication Through Enforcement, Shalini Ray

Indiana Law Journal

Presidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially making every deportable …

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 …

Legislatively Overturning Fort Stewart Schools: The Trump Administration's Assault On Federal Employee Collective Bargaining, Richard J. Hirn

Indiana Law Journal

In his Fiscal Year 2019 Budget Submission, President Trump noted that about 60 percent of Federal employees belong to a union and lamented that dealing with Federal employee unions ostensibly “consume[s] considerable management time and taxpayer resources, and may negatively impact efficiency, effectiveness, cost of operations, and employee accountability and performance.” Although he acknowledged that Federal employee unions can negotiate over fewer matters than can unions in the private sector, he nonetheless claimed that collective bargaining contracts can negatively impact agency performance, workplace productivity, and employee satisfaction. The President told Congress that “[a]gency managers will be encouraged to restore management …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Trump, The Court, And Constitutional Law, Erwin Chemerinsky

Indiana Law Journal

In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These, …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Indiana Law Journal

I will argue that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal …

Trump As Constitutional Failure, Jamal Greene

Indiana Law Journal

As Part I explains, the American constitutional system assumes a certain sort of democratic culture. That assumption is encapsulated in Chief Justice John Marshall’s dictum, in M’Culloch v. Maryland, that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” The U.S. Constitution indeed lacks “the prolixity of a legal code,” but subsequent history confirms that its relative sparseness is not, as Marshall maintained, because it is “a constitution we are expounding.” The U.S. Constitution is among the world’s least prolix and most difficult to amend. These attributes …

Congressional Authorization Of The Campaign Against Isil, Tyler Salway

Indiana Law Journal

I. THE BIRTH OF ISIL

II. CONGRESSIONAL AUTHORIZATION

A. EXPRESS AUTHORIZATION

1. METHODS OF INCLUSION

2. ISIL’S INCLUSION UNDER THE 9/11 AUMF

B. IMPLICIT AUTHORIZATION

III. ISIL AND THE TRUMP PRESIDENCY

CONCLUSION

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 …

Cook V. Nara Versus The Public’S Right To Know, Sarah Lamdan

Indiana Law Journal

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

In 2013, a Gawker reporter named John Cook made a FOIA request to the National Archives and Records Administration (NARA) to get more information on “who’s digging through what in former …

Lawyering Wars: Failing Leadership, Risk Aversion, And Lawyer Creep—Should We Expect More Lone Survivors?, Arthur Rizer

Indiana Law Journal

“We are a nation of laws, not men.” This motto—made famous by the Supreme Court case Marbury v. Madison1—has existed since the founding of the United States. This maxim embodies the sentiment that, in order to prevent tyranny, citizens should be governed by fixed law rather than the whims of a dictator. In his decision, Chief Justice John Marshall did not qualify his remarks by saying, “we are a nation of laws, except in time of war.” Indeed with the modern U.S. military, Cicero’s observation that “[l]aws are inoperative in war” has never been further from the truth. Never before …

The Impact Of The Obama Presidency On Civil Rights Enforcement In The United States, Joel Friedman

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

The Statutory Commander In Chief, Neil Kinkopf

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Bending Toward Justice: The Posthumous Pardon Of Lieutenant Henry Ossian Flipper, Darryl W. Jackson, Jeffery H. Smith, Edward H. Sisson, Helene T. Krasnoff

Indiana Law Journal

No abstract provided.

Separation, Politics And Judicial Activism, Wallace Mendelson

Indiana Law Journal

Symposium: Separation of Powers

Recent Developments In Social Welfare Law And The Doctrine Of Separation Of Powers, William H. Taft Iv

Indiana Law Journal

Symposium: Separation of Powers

The Congressional Veto: Preserving The Constitutional Framework, Arthur S. Miller, George M. Knapp

Indiana Law Journal

Symposium: Separation of Powers

Checks And Balances In American Foreign Policy, John Sparkman

Indiana Law Journal

Symposium: Separation of Powers

Introduction To The Separation Of Powers Symposium

Indiana Law Journal

No abstract provided.

Separation Of Powers And International Executive Agreements, Arthur W. Rovine

Indiana Law Journal

Symposium: Separation of Powers

The Congressional Veto: A Contemporary Response To Executive Encroachment On Legislative Prerogatives, James Abourezk

Indiana Law Journal

Symposium: Separation of Powers

A Rejoinder, David E. Engdahl

Indiana Law Journal

No abstract provided.

The Civil Disturbance Regulations: Threats Old And New, Dominic J. Campisi

Indiana Law Journal

No abstract provided.

Executive Privilege: A Constitutional Myth, By Raoul Berger, Maurice J. Holland Jr.

Indiana Law Journal

No abstract provided.

Aspects Of The Executive's Power Over National Security Matters: Secrecy Classifications And Foreign Intelligence Wiretaps, Charles R. Nesson

Indiana Law Journal

No abstract provided.

Roosevelt And Frankfurter: Their Correspondence, Annotated By Max Freedman, Phillip B. Kurland

Indiana Law Journal

No abstract provided.

Lincoln As A Lawyer, By Alan T. Frank, Alan T. Nolan

Indiana Law Journal

No abstract provided.

John Coit Spooner: Defender Of Presidents, By Dorothy Ganfield, Morris D. Forkosch

Indiana Law Journal

No abstract provided.

The Removal Power Of The President And Independent Administrative Agencies, Reginald Parker

Indiana Law Journal

No abstract provided.