Law Commons^™

Brief Of Amici Curiae Administrative Law Scholars In Support Of Petitioner In Sec V. Jarkesy, Ronald M. Levin, Alan B. Morrison, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is an amicus brief that several scholars have filed in the Supreme Court in SEC v. Jarkesy. The brief argues that (1) the double-for-cause removal requirement of Free Enterprise Fund v. PCAOB should not apply to ALJs at the SEC; and (2) the Seventh Amendment does not apply to administrative adjudication at the SEC.

How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce discusses two related problems that the Supreme Court must address—the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions and the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He begins by describing the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides …

An Expanded Version Of Oira Can Ensure Democratic Accountability In The Administrative State, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium, Professor Pierce argues that the most promising way of ensuring democratic accountability in the administrative state is to combine an expanded version of OIRA with complementary doctrines.

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

In Search Of The Presumption Of Regularity, Aram A. Gavoor, Steven Platt

GW Law Faculty Publications & Other Works

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 …

Material Liberty And The Administrative State: Market And Social Rights In American And German Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the …

Administrative Investigations, Aram A. Gavoor, Steven Platt

GW Law Faculty Publications & Other Works

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that the Article III courts have …

Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith

GW Law Faculty Publications & Other Works

Constitutional Law: A Contemporary Approach (2d ed. 2011) is a textbook written by Professors Gregory E. Maggs and Peter J. Smith (both of the George Washington University Law School) and published by West (ISBN-13: 9780314273550).

The second edition of the textbook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided fuller versions of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each …

Embryo Fundamentalism, Naomi R. Cahn, June Caborne

GW Law Faculty Publications & Other Works

The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction - no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments - may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of "Octomom" Nadya Suleman's use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing. At the same time, religious communities ambivalent about …

When Statutory Regimes Collide:Will Wisconsin Right To Life And Citizens United Invalidate Federal Tax Regulation Of Campaign Activity?, Miriam Galston

GW Law Faculty Publications & Other Works

In Federal Election Commission v. Wisconsin Right to Life (2007) and Citizens United v. Federal Elections Commission (2010), the United States Supreme Court dramatically reduced the ability of Congress to regulate campaign finance activities of corporations and others active in elections. Many of the same activities are still subject to restrictions by the Internal Revenue Code, which regulates the type and amount of political campaign activities that certain nonprofits exempt under federal tax law can engage in.

In the wake of the campaign finance decisions, the constitutionality of the tax law’s restrictions on campaign activity is now being challenged in …

Living Originalism, Peter J. Smith, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see …

The Constitutionality Of Breed Discriminatory Legislation: A Summary, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This chapter focuses on Toledo v. Tellings, an Ohio case dealing with breed-specific legislation that restricted a Toledo resident to owning one “vicious” dog, defined purely by breed as a pit bull. This case implicated numerous constitutional issues, including vagueness, procedural due process, equal protection, substantive due process, takings, and privileges and immunities. Although the Ohio Sixth Appellate District struck down the breed-specific legislation, the Ohio Supreme Court reversed, and I find this reversal at odds with the constitutional issues at play.

Putting Missouri V. Holland On The Map, Edward T. Swaine

GW Law Faculty Publications & Other Works

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

Constitutional Change And Responsibilities Of Governance Pertaining To The Faith-Based And Community Initiative, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper, commissioned and published in June 2008 in connection with the White House-sponsored Conference on Innovations in Effective Compassion, addresses the changing legal environment relevant to government partnerships with religious providers of social services. In particular, the paper maps the federal government's regulatory agenda in connection with the Faith-Based and Community Initiative (FBCI) onto the changes in constitutional law over the past several decades. After briefly surveying the key developmental points in the relevant constitutional law, the paper explores specific changes in federal regulations governing aid to religious providers of welfare services, and considers the litigation efforts that have …

Textualism And Jurisdiction, Peter J. Smith

GW Law Faculty Publications & Other Works

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has …

Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu

GW Law Faculty Publications & Other Works

This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …

Hail, No: Changing The Chief Justice, Edward T. Swaine

GW Law Faculty Publications & Other Works

How do we get a new chief justice? Traditionally, the President decides between nominating a newcomer and promoting a sitting associate justice, and places either nominee before the Senate for its advice and consent. But this is not constitutionally required, or at least not evidently so, and there is no better time to confront this fact. This short essay explains that Congress could develop a different mechanism for promoting justices without subjecting them to a second appointment - providing, for example, that the position would rotate among sitting justices based on seniority, or that the justices would elect a chief …

Political Questions And Political Remedies, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always …

The Constitutionality Of International Delegations, Edward T. Swaine

GW Law Faculty Publications & Other Works

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative …

But Some Are More Equal: Race, Exclusion, And Campaign Finance, Spencer A. Overton

GW Law Faculty Publications & Other Works

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal …

Constitutional Circularity, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In supporting the invocation of stare decisis in constitutional cases, the Supreme Court has maintained that its decisions affect how the people conceptualize the government and their rights. Such an argument, which prioritizes contemporary understands of the Constitution over both the intentions of Framers and the nuances of doctrine, suggests that constitutional decisions may affect the meaning of the Constitution itself. In this Article, Professor Abramowicz offers a positive account demonstrating that the Court has used this type of argument, which he dubs “constitutional circularity,” and provides a normative critique. The positive account is relevant not only because it identifies …

The Undersea World Of Foreign Relations Federalism, Edward T. Swaine

GW Law Faculty Publications & Other Works

Uncertainty surrounds the field of foreign relations federalism. The Supreme Court has left lower courts to decide significant issues with little guidance, the Constitution provides little direct instruction, and the tension between national and state authority creates policy arguments on both sides based on uncertain conceptions on injury to these interests. Scholars should seize the opportunity to explore new functions and values for states in today’s globalized world.

Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine

GW Law Faculty Publications & Other Works

This Article reviews The Expanding Role of State and Local Governments in U.S. Foreign Affairs by Earl H. Fry, a book accounting how states and localities are devoting increasing resources to developing their own foreign policy. Fry description is useful and timely, but his allusions to the constitutional basis for a federal monopoly on foreign policy are too summary. As a policy matter, his suggestion for a consensus-driven solution to reconcile competing state and national interests depends on the ability of stakeholders to reach agreements in an increasingly politicized environment, and downplays the importance of foreign actors in these decisions. …