Law Commons^™

Presidential Control Of Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Presidential Control Over Disputed Elections, Lisa Marshall Manheim

Articles

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public …

Nobody Knew How Complicated: Constraining The President's Power To Re(Shape) Health Reform, Sallie Thieme Sanford

Articles

Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA’s central features. The first two sections of this article respectively consider the use of the President’s tools to advance and to subvert health reform.

The final two sections consider the forces constraining the administration’s attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions …

President Trump's Emerging Maritime Policy, Craig H. Allen

Articles

President Donald Trump was elected on a pledge to make America great again. Although he did not enter office with a comprehensive national maritime policy, the elements of such a policy have begun to emerge. Since taking office on January 20, 2017, Trump and the Republican controlled 115th Congress have enacted broad tax reforms and significantly increased defense spending, the first step toward rebuilding the US Navy to 355 ships. The 115th Congress also invoked the Congressional Review Act of 1996 to overturn 14 rules issued by federal agencies during President Obama's term.

Protecting Offshore Areas From Oil And Gas Leasing: Presidential Authority Under The Outer Continental Shelf Lands Act And The Antiquities Act, Robert T. Anderson

Articles

For over one hundred years, presidents of both parties have used executive power to protect America’s lands and waters. Until the second half of the twentieth century, however, little attention was given to protecting the marine ecosystem. Federal authority reaches out to two hundred miles or more in the oceans off the United States, covering an area known as the Outer Continental Shelf. Federal interest in the area historically focused on developing oil and gas reserves and ensuring that the area was open to trade and commerce. The area is also very important for indigenous subsistence uses and commercial and …

Taxation And Surveillance: An Agenda, Michael Hatfield

Articles

Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Executive Orders And Presidential Commands: Presidents Riding To The Rescue Of The Environment, William H. Rodgers, Jr.

Articles

Presidential executive orders are legal and political documents. They are also uniquely personal utterances of the president and the administration. The right words at the appropriate time can motivate and move the human spirit, and they can link this president and this moment to the strongest of ideas. Being personal and tending to the heroic, the executive order can thus be perceived as accomplishing a great public good.

This article will explore the pros and cons of the executive order tool. I will then evaluate a number of executive orders that have impacted contemporary environmental policy. I will conclude by …