Constitutional Law Commons^™

Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern

Scholarly Publications

The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …

Presidential Constitutional Interpretation, Signing Statements, Executive Power And Zivotofsky, Henry L. Chambers, Jr.

Law Faculty Publications

This Article explores whether the President should interpret the Constitution aggressively and, if so, whether the President should act on such aggressive interpretations. Part I examines whether the presidential oath and other constitutional duties obligate the President to interpret the Constitution. Part II considers constitutional signing statements as the manifestation of an aggressive approach to presidential constitutional interpretation. Part III considers whether the Constitution is a legal document or a political document, and how that determination might affect how aggressive the President should be when interpreting the Constitution. Part IV considers how the Supreme Court's and Congress's constitutional interpretations might …

Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl

Northwestern University Law Review

Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit’s recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine …

Without Unnecessary Delay: Using Army Regulation 190–8 To Curtail Extended Detention At Sea, Meghan Claire Hammond

Northwestern University Law Review

This Note analyzes instances of U.S. detention of suspected terrorists while at sea as an alternative to Guantánamo, and how this at-sea detention fits in the interplay of U.S. statutory law, procedural law, and applicable international law. Of particular interest is the dual use of military and civilian legal regimes to create a procedural-protection-free zone on board U.S. warships during a detainee’s transfer from their place of capture to the U.S. court system. The Note concludes that U.S. Army Regulation 190–8 contains language of which the purpose and intent may be analogized to the Federal Rules of Criminal Procedure requirements …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

All Faculty Scholarship

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Faculty Scholarship

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Some Structural Dilemmas Of World Organization, C. Wilfred Jenks

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Policy And The Government Legal Adviser, Henry Darwin

Georgia Journal of International & Comparative Law

No abstract provided.

Law Professors Want Hearing, Vote On Garland, Eric Berger, Kristen M. Blankley, Brian H. Bornstein, Eve M. Brank, Robert C. Denicola, Alan H. Frank, Stephen S. Gealy, Justin Hurwitz, David Landis, Craig M. Lawson, Richard Leiter, William H. Lyons, Richard H. Lawson, Matt Novak, Allen Overcash, Stefanie S. Pearlman, Ross Pesek, Kevin Ruser, Robert F. Schopp, Anthony Schutz, Anna Williams Shavers, Brett C. Stohs, Ryan Sullivan, Richard L. Weiner, Steven L. Willborn, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Dear Senator Fischer and Senator Sasse,

We write this as citizens, but we all teach at the University of Nebraska College of Law. We hold different political viewpoints and disagree frequentIy with each other on political and legal issues. As law professors, however, we share a deep commitment to the rule of law and an impartial judiciary. We therefore urge you to hold confirmation hearings and a vote on President Obama's Supreme Court nominee, Chief Judge Merrick B. Garland.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Pepperdine Law Review

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court …

Originalism And The Executive, Neil Kinkopf

Neil J. Kinkopf

No abstract provided.

Originalism And The Executive, Neil Kinkopf

Faculty Publications By Year

No abstract provided.

Ted Cruz Is Not Eligible To Be President, Mary Brigid Mcmanamon

Mary Brigid McManamon

Transforming The “Thurmond Rule” In 2016, Carl W. Tobias

Law Faculty Publications

This piece first analyzes the Rule’s history. Part II explains the convention and its deleterious consequences. Finding that each party reinterprets the notion to stymie appointments—which perverts the selection process, deprives courts of judicial resources for delivering justice, and intensifies the “confirmation wars”—the final Part proffers solutions. Because the Rule has multiple detrimental effects, it warrants abolition.

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Scholarly Articles

Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive …

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

Making Sense Of Legislative Standing, Matthew I. Hall

Scholarly Works

Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Presidential Signing Statements: A New Perspective, Christopher S. Yoo

All Faculty Scholarship

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

Congressional And Presidential War Powers As A Dialogue: Analysis Of The Syrian And Isis Conflicts, Charles Tiefer, Kathleen Clark

All Faculty Scholarship

Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President's powers under Article II of the Constitution, and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This Article instead focuses on the process of dialogue between Congress and the President prior to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. response to Syrian President Assad's use of chemical weapons in 2013, and the rise of …

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The Judicial Role In Constraining Presidential Nonenforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

All Faculty Scholarship

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to “take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth

All Faculty Scholarship

The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Articles

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …

Herbert Hoover And The Constitution, John Q. Barrett

Faculty Publications

Herbert Clark Hoover, first an international businessman, a global hero during World War I, and then a cabinet officer under Presidents Harding and Coolidge, was elected president in 1928. The next year, as President Hoover embarked on his progressive agenda for the country, the Roaring Twenties ended, crashingly, in the Great Depression. Hoover responded inadequately, constrained more by his own beliefs in volunteerism than by constitutional limits on his powers. His failure to relieve public suffering overshadowed his presidential accomplishments, including innovative government programs and three Supreme Court appointments.