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Full-Text Articles in Law
Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins
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. …
The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash
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 …
Ronald V. Dellums V. George Bush (D.D.C. 1990): Memorandum Amicus Curiae Of Law Professors, Bruce A. Ackerman, Abram Chayes, Lori Fisler Damrosch, John Hart Ely, Erwin N. Griswold, Gerald Gunther, Louis Henkin, Harold Hongju Koh, Philip B. Kurland, Laurence H. Tribe, William W. Van Alstyne
Ronald V. Dellums V. George Bush (D.D.C. 1990): Memorandum Amicus Curiae Of Law Professors, Bruce A. Ackerman, Abram Chayes, Lori Fisler Damrosch, John Hart Ely, Erwin N. Griswold, Gerald Gunther, Louis Henkin, Harold Hongju Koh, Philip B. Kurland, Laurence H. Tribe, William W. Van Alstyne
Faculty Publications
This joint memorandum is submitted to the court hearing Dellums v. Bush. This amicus brief advocates that the President may not order American armed forces to make war without consultation with and approval by Congress. The brief also argues that the case is justiciable.
Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins
Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins
Faculty Publications
No abstract provided.
Congress, The President, And The Power To Declare War: A Requiem For Vietnam, William W. Van Alstyne
Congress, The President, And The Power To Declare War: A Requiem For Vietnam, William W. Van Alstyne
Faculty Publications
Several arguments have been advanced in support of the President's authority to continue use of the Armed Forces in Vietnam without a congressional declaration of war as provided by the Constitution. Congressional ratification of the Southeast Asia Treaty and the Charter of the United Nations, as well as enactment of the Gulf of Tonkin Resolution, are often urged as constituting sufficient congressional authorization for the President's actions. Some have gone further and contended that congressional authorization was not a prerequisite in the Vietnam conflict because the President never exceeded his historically recognized authority to act unilaterally in defense of the …