Law Commons^™

Fiduciary Constitutionalism: Implications For Self- Pardons And Non-Delegation, Ethan J. Leib, Jed H. Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficia-ries and that a sovereign’s exercise of its political power must be constrained by fiduciary standards—like the duties of loyalty and care—is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclu-sions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Faculty Scholarship

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these state-based reform options. Categorically rejecting all state-based reform is …

Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene

Faculty Scholarship

Could so many well-established scholars be wrong? Is it possible that Bush v. Gore is defensible, after all? The two pillars of the decision-the Equal Protection Clause justification for the merits holding and the "safe harbor" remedial ruling - indeed seem weak. The alternative merits view-that the Florida Supreme Court had engaged in statutory amendment under the guise of statutory interpretation, thus violating Article II of the federal Constitution-runs aground against the plausible (albeit not necessarily correct) readings of the state high court. If one agrees that these merits and remedial arguments are indefensible, then mustn't one agree with the …

Pardoning Power Of Article Ii Of The Constitution, The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.

Pardoning Power Of Article Ii Of The Constitution (Continued), The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.