Law Commons^™

Signing Statements And Divided Government, Neal Devins

Neal E. Devins

No abstract provided.

Should The Supreme Court Fear Congress?, Neal Devins

Neal E. Devins

No abstract provided.

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Tara L. Grove

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

When Can A State Sue The United States?, Tara Leigh Grove

Tara L. Grove

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …

Standing Outside Article Iii, Tara Leigh Grove

Tara L. Grove

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Article Iii In The Political Branches, Tara Leigh Grove

Tara L. Grove

In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Katherine Mims Crocker

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

How Not To Challenge The Court, Neal Devins

Neal E. Devins

No abstract provided.

Erie, Swift, And Legal Positivism, Michael S. Green

Michael S. Green

No abstract provided.

Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins

Neal E. Devins

No abstract provided.

Book Review Of The Second American Revolution, Neal Devins

Neal E. Devins

No abstract provided.

Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

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

Popular Media

No abstract provided.

Taming Sherman's Wilderness, Derrian Smith

Indiana Law Journal

This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation …

The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt

Channels: Where Disciplines Meet

How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of these …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Panel 5: Federalism And Separation Of Powers

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Stephen Griffin, Neil Kinkopf, and Ilya Somin

Constitutionality Of Non-Contentious Cases In Japan, Thomas Makoto Naruse

Japanese Society and Culture

In the United States, there was a debate on vesting Article 3 Court extrajudicial authorities, and United States Supreme Court have often denied vesting such authority. In contrast, in Japan, extrajudicial authorities (including those without element of dispute) are vested in courts since the age of Meiji Constitution, and only recently, questions are posed. Today, many scholars are struggling with this issue, and some approaches are shown: one is to conceive the limit of authority which courts can handle according to the distance from properly judicial power, which has dispute as the core element, and the other is to change …

The Attorney General's Forgotten Role As Legal Advisor To The Legislature: A Comment On Schmidt V Canada (Attorney General), Andrew Martin

Articles, Book Chapters, & Popular Press

In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson

William & Mary Bill of Rights Journal

This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress.

Juliana V. United States: Debating The Fundamentals Of The Fundamental Right To A Sustainable Climate, Erin Ryan

Scholarly Publications

This article, based on a live discussion among a panel of national experts, dissects the landmark federal climate lawsuit, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). Juliana is the flagship case in a series of legal actions brought by youth plaintiffs challenging government failures to regulate to prevent climate change. However, few have come as far as Juliana, which has so far survived motions to dismiss from both the government and fossil fuels industry, a motion for interlocutory appeal to the Ninth Circuit to dismiss the case, and even a rare petition for writ of …

You’Re Fired! Special Counsel Removal Authority And The Separation Of Powers, Adrianne C. Blake

University of Baltimore Law Review

No abstract provided.

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Faculty Publications

No abstract provided.

May Federal Prosecutors Take Direction From The President?, Bruce Green, Rebecca Roiphe

Articles & Chapters

Suppose the president sought to serve as prosecutor-in-chief telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president's direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Juliana V. United States: Debating The Fundamentals Of The Fundamental Right To A Sustainable Climate, Erin Ryan, Mary Wood, Jim Huffman, Irma S. Russell, Richard Frank

Faculty Works

This article, based on a live discussion among a panel of national experts, dissects the landmark federal climate lawsuit, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). Juliana is the flagship case in a series of legal actions brought by youth plaintiffs challenging government failures to regulate to prevent climate change. However, few have come as far as Juliana, which has so far survived motions to dismiss from both the government and fossil fuels industry, a motion for interlocutory appeal to the Ninth Circuit to dismiss the case, and even a rare petition for writ of …

Presidential Powers, Immunities, And Pardons, Alberto R. Gonzales

Law Faculty Scholarship

This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal …

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid. …