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2014

Congress

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Full-Text Articles in Law

Is Military Justice Sentencing On The March? Should It Be? And If So, Where Should It Head? Court-Martial Sentencing Process, Practice, And Issues, James E. Baker Dec 2014

Is Military Justice Sentencing On The March? Should It Be? And If So, Where Should It Head? Court-Martial Sentencing Process, Practice, And Issues, James E. Baker

Georgetown Law Faculty Publications and Other Works

This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing ...


The Limits Of Enumeration, Richard A. Primus Dec 2014

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police ...


Congress's (Less) Limited Power To Represent Itself In Court: A Comment On Grove And Devins, Jack M. Beermann Sep 2014

Congress's (Less) Limited Power To Represent Itself In Court: A Comment On Grove And Devins, Jack M. Beermann

Faculty Scholarship

In their recent article, Congress’s (Limited) Power to Represent Itself in Court, 99 Cornell L. Rev. 571 (2014) Tara Leigh Grove and Neal Devins make the case against congressional litigation in defense of the constitutionality of federal statutes. They conclude that Congress, or a single House of Congress, may not defend the constitutionality of federal statutes in court even when the Executive Branch has decided not to do so but may litigate only in furtherance of Congress’s investigatory and disciplinary powers. Grove and Devins claim that congressional litigation in support of the constitutionality of federal statutes violates two ...


The Bond Court's Institutional Truce, Monica Hakimi Jun 2014

The Bond Court's Institutional Truce, Monica Hakimi

Articles

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear ...


Dismissing Deterrence, Ellen D. Katz Apr 2014

Dismissing Deterrence, Ellen D. Katz

Articles

The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.


S14rs Sgr No. 34 (Federal Matching Program), Schwartzenburg, Grashoff Apr 2014

S14rs Sgr No. 34 (Federal Matching Program), Schwartzenburg, Grashoff

Student Senate Enrolled Legislation

No abstract provided.


S14rs Sgr No. 13 (H.R. 3978), Hilton Apr 2014

S14rs Sgr No. 13 (H.R. 3978), Hilton

Student Senate Enrolled Legislation

No abstract provided.


Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay Apr 2014

Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay

All Faculty Scholarship

Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance ...


The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen Apr 2014

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

Scholarly Works

The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence ...


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Apr 2014

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress


Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project Mar 2014

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides


The Past, Present And Future Of Auer Deference: Mead, Form And Function In Judicial Review Of Agency Interpretations Of Regulations, Michael P. Healy Mar 2014

The Past, Present And Future Of Auer Deference: Mead, Form And Function In Judicial Review Of Agency Interpretations Of Regulations, Michael P. Healy

Law Faculty Scholarly Articles

The law of judicial review of agency legal interpretations has undergone an important reshaping as a consequence of the Supreme Court decision in United States v. Mead Corp. That decision and the important follow-on decision in National Cable & Telecommunications Ass 'n v. Brand X Internet Services have changed the understanding of the Court's landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron defined a new era of judicial deference to an agency's interpretation of an ambiguous statute, but the Chevron era has itself been transformed.

These legal developments had seemed to ...


The Puzzling Presumption Of Reviewability, Nicholas Bagley Mar 2014

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly ...


Enacted Legislative Findings And The Deference Problem, Daniel A. Crane Mar 2014

Enacted Legislative Findings And The Deference Problem, Daniel A. Crane

Articles

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness ...


The Puzzling Presumption Of Reviewability, Nicholas Bagley Mar 2014

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly ...


Law Library Newsletter, Volume 5, Issue 4 - January/February 2014, Kresge Law Library Feb 2014

Law Library Newsletter, Volume 5, Issue 4 - January/February 2014, Kresge Law Library

Law Library Newsletter

Special points of interest:

Snow removal stats

A fun (and educational) new app

Learn what returning 2-3Ls think about their legal research skills

Meet your new Bloomberg Law Rep

The exciting conclusion of our six part series on the Making of Modern Law database modules

Inside this issue:

Managing Microforms in the Digital Age 2

The Big Job of Snow Removal 2

Upcoming Lexis Advance Enhancements 3

Duolingo: Free Language Education for the World 3

Summer Research Experience Survey Results 4

Pre-Finals Play Date with Pets 5

ND Transitions to Gmail and Google Calendar 7


The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr. Jan 2014

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title ...


The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash Jan 2014

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority ...


Keep Your Eyes On Eyes In The Sky, Hillary B. Farber Jan 2014

Keep Your Eyes On Eyes In The Sky, Hillary B. Farber

Faculty Publications

To date, eight states have passed bills regulating domestic drone use by government and private individuals. This leaves us with a question: If a city of more than 60,000 residents and a global company with a customer base in the hundreds of millions are racing to the sky, how are we as a commonwealth of 6.6 million to truly launch ourselves into the debate and protect what little privacy we have left?


The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff Jan 2014

The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff

Articles

Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard ...


Speaking Of Science: Introducing Notice And Comment Into The Legislative Process, Gregory Dolin Jan 2014

Speaking Of Science: Introducing Notice And Comment Into The Legislative Process, Gregory Dolin

All Faculty Scholarship

Congress enacts, on a nearly continuous basis, a variety of laws that affect scientific research and progress. Some of these laws have an unquestionably positive effect. For instance, Congress's creation of the National Institutes of Health, the National Academy of Sciences, and NASA; its various appropriations to fund ground-breaking research; and a multitude of other laws have incalculably advanced human knowledge, and it is to Congress's great credit that these laws have been and are continuing to be enacted. However, not all laws that affect the progress of sciences are an unalloyed good. Quite the opposite, often the ...


A Scandalous Perversion Of Trust: Modern Lessons From The Early History Of Congressional Insider Trading, Michael A. Perino Jan 2014

A Scandalous Perversion Of Trust: Modern Lessons From The Early History Of Congressional Insider Trading, Michael A. Perino

Faculty Publications

The Stop Trading on Congressional Knowledge Act of 2012 (the “STOCK Act”) affirms that members of Congress are not exempt from insider trading prohibitions. Legal scholars, however, continue to debate whether the legislation was necessary. Leveraging recent scholarship on fiduciary political theory, some commentators contend that because members owe fiduciary-like duties to citizens, to their fellow members, and to Congress as an institution, existing insider trading theories already prohibited them from using material nonpublic information for personal gain. These arguments, while plausible, are incomplete. They rely on broad conceptions of legislators as fiduciaries, but provide scant evidence that members violate ...


Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz Jan 2014

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.


Overrides: The Super-Study, Victoria Nourse Jan 2014

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters ...


The Constitution And Legislative History, Victoria Nourse Jan 2014

The Constitution And Legislative History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these ...


Hiding In Plain Sight: "Conspicuous Type" Standards In Mandated Communication Statutes, Mary Beth Beazley Jan 2014

Hiding In Plain Sight: "Conspicuous Type" Standards In Mandated Communication Statutes, Mary Beth Beazley

Scholarly Works

Professor Beazley defines the concept of mandated communication statutes in this examination of typeface, language, and the mind's ability to comprehend certain syntax. This article has a simple premise: when a government mandates written communication, it should present the mandated communication in a way that speeds comprehension. When communication is so important that the government is mandating the words and the presentation method, the writer and not the reader should not bear the burden of making sure that the information is comprehensible. In other words, the reader should not have to work to decipher the information; the writer should ...


Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss Jan 2014

Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss

Articles by Maurer Faculty

This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-published study (92 Texas L. Rev. 1317 (2014)) identifying and analyzing Congressional overrides of Supreme Court statutory interpretation decisions since 1967. Christiansen and Eskridge provide a new taxonomy for overrides that distinguishes between "restorative" overrides, which denounce a judicial interpretation as misrepresenting prior Congressional intent, and overrides that simply update or clarify policy. Although political science and legal scholarship has focused on the interbranch struggle implicit in restorative overrides, Christiansen and Eskridge classify only about 20% of the overrides in their total ...


Self-Help And The Separation Of Powers, David Pozen Jan 2014

Self-Help And The Separation Of Powers, David Pozen

Faculty Scholarship

Self-help doctrines pervade the law. They regulate a legal subject's attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures – measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them. How does American constitutional law meet this challenge? This Article ...


Election Law's Lochnerian Turn, Ellen D. Katz Jan 2014

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.


Viva Conditional Federal Spending!, Samuel R. Bagenstos Jan 2014

Viva Conditional Federal Spending!, Samuel R. Bagenstos

Articles

From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court ...