Law Commons^™

The Lost History Of Delegation At The Founding, Christine Chabot

Faculty Publications & Other Works

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

The Supreme Court Rules That Trump’S Daca Rescission Doesn’T Pass Muster, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Rocky Road To Energy Dominance: The Executive Branch’S Limited Authority To Modify And Revoke Withdrawals Of Federal Lands From Mineral Production, Robert L. Glicksman, Hillary M. Hoffman

GW Law Faculty Publications & Other Works

The Trump Administration’s implementation of its America First Energy Plan, whose goal is achieving U.S. “energy dominance,” has relied heavily upon public mineral development. Mineral development on federal lands is largely governed by statute. The statutory legal mechanisms by which the Executive Branch can “open” or “close” an area of federal lands to mineral development, whether onshore or offshore, are withdrawal, modification, and revocation.

The Federal Land Policy and Management Act (FLPMA) and the Outer Continental Shelf Lands Act (OCSLA) are the primary statutes that govern onshore and offshore mineral development on over 2 billion acres of federal lands. Both …

President Trump Bars Uninsured Immigrants From The U.S., Peter Margulies

Law Faculty Scholarship

No abstract provided.

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.

Trump’S Travel Ban At The Supreme Court: Deference Joined By Nudges Toward Civility, Peter Margulies

Law Faculty Scholarship

No abstract provided.

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …

Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe

Articles & Chapters

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice …

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …

Representative/Senator Trump?, Gary S. Lawson

Faculty Scholarship

The American presidency is a much more powerful office in 2017 than was contemplated by the Constitution of 1788. In large measure, that is because Congress has unconstitutionally subdelegated many of its legislative powers to the President. The President thus effectively functions as the Congress to a significant degree, which not only perverts the constitutional structure but also significantly raises the stakes of presidential elections. There is no good reason to expect Congress or the courts to stem the tide of subdelegation. Presidents, however, have a number of tools available to resist, and even reverse, that tide. While there is …

The Ninth Circuit’S Refugee Eo Decision: Methodically Misreading The Immigration Statute, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Fourth Circuit And The Refugee Eo: Establishing Confusion, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Ninth Circuit And The Refugee Eo: Back To The Statute?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Fourth Circuit Argument On The Refugee Eo: Second-Guessing The President Or Safeguarding Individual Rights?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Enjoining The Revised Refugee Eo: The Hawaii District Court “Waters Down” The Separation Of Powers, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Ninth Circuit On The Refugee Eo: The Government’S Least Bad Option, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Erosion Of Congressional Checks On Presidential Power, Neal Devins

Popular Media

No abstract provided.

Fisheries Without Courts: How Fishery Management Reveals Our Dynamic Separation Of Powers, Erin Ryan

Scholarly Publications

This essay adds a perspective from fisheries governance to the broader inquiry into the respective roles of judicial, legislative, and executive decision-making in modern environmental law. It comments on Robin Craig and Catherine Danley’s quantitative assessment of litigation under the federal Fishery Conservation and Management Act (FCMA), and considers three key questions raised by their research: (1) Why is the judicial role in fisheries management small in comparison to the executive role? (2) When litigation is brought, why are fishery management plans the most frequent targets of litigation? And finally, (3) why is it that even with so many fisheries …

Category Errors And Executive Power, Jonathan Adler

Faculty Publications

In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and …

Advising The President: The Growing Scope Of Executive Power To Protect America, Alberto R. Gonzales

Law Faculty Scholarship

The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits …

The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu

Faculty Works

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …

Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

Jewerl Maxwell Announces Book Publication, Andrea Speros

News Releases

Jewerl Maxwell, Ph.D., associate dean of the center for lifelong learning and assistant professor of political science at Cedarville University, co-authored “Tough Times for the President: Political Adversity and the Sources of Executive Power” with professor, author and presidency scholar Ryan J. Barilleaux.

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

The Progressive Presidency And The Shaping Of The Modern Executive, Andrea Scoseria Katz

Scholarship@WashULaw

The contemporary presidency, with its expanded foreign policy, administrative and public duties, is largely a brainchild of the Progressive Era. The Progressives envisioned an enlarged executive, one outside the original guidelines of the U.S. Constitution, which they deemed “archaic,” “undemocratic,” and unsuited to the demands of the modern age, in which mass capitalism dislocated, alienated and disenfranchised the common man. The Progressives wanted to bring about a more energetic, streamlined, and unified state at the helm of which stood the presidency, an office of popular leadership and swift action. To accommodate this new, active figure, some Progressives believed it necessary …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants, Neal Devins

Faculty Publications

No abstract provided.

Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins

Faculty Publications

No abstract provided.