Law Commons^™

Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport

University of Michigan Journal of Law Reform

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …

A Suspended Death Sentence: Habeas Review Of Expedited Removal Decisions, Lauren Schusterman

Michigan Law Review

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

The Constitutionality Of California's Cap-And-Trade Program And Recommendations For Design Of Future State Programs, Thomas Alcorn

Michigan Journal of Environmental & Administrative Law

Global climate change has emerged as one of the greatest challenges of our time. While action has stalled on the national stage, states have started to take action to reduce their greenhouse gas emissions. Confronted with the risk of severe impacts that could cost it tens of billions of dollars annually by the end of the century, California has taken the lead and developed the first comprehensive cap-and-trade program in the nation and seeks to achieve significant reductions in the greenhouse gas emissions associated with its economy. The success of California’s program will determine whether other states and the federal …

The Dormant Commerce Clause And California's Low Carbon Fuel Standard, Kathryn Abbott

Michigan Journal of Environmental & Administrative Law

California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the …

Loss Of Protection As Injury In Fact: An Approach To Establishing Standing To Challenge Environmental Planning Decisions, Miles A. Yanick

University of Michigan Journal of Law Reform

As currently interpreted by the United States Supreme Court, Article III of the Constitution creates a significant hurdle for plaintiff citizen groups seeking standing to challenge environmental planning or management decisions. In particular, plaintiffs have had difficulty in making the required showing of an 'injury in fact" where an agency has not yet approved a site-specific action but has approved only a general plan for an area to govern future site-specific actions. The Supreme Court has not articulated a clear rule for standing to challenge the latter type of agency decision making, and the courts of appeals for the various …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Judicial Review In Europe, Gottfried Dietze

Michigan Law Review

The years following the Second World War witnessed a wave of constitution making in Europe. In East and West alike, popular government was instituted through new basic laws. But whereas the constitutions of Eastern Europe established a Rousseauistic form. of democracy through the creation of an omnipotent legislature, those of the West, while reflecting a belief in parliamentary government, to a larger or smaller degree limited the power of the legislature through the introduction of judicial review. This acceptance of judicial review can be attributed mainly to two factors. It sprung from a distrust of a parliamentarism under which, during …