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Full-Text Articles in Law
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Scholarly Works
From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
Faculty Working Papers
Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Faculty Scholarship
States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress's faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with …
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …