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Full-Text Articles in President/Executive Department

Dismantling Monuments, Richard H. Seamon Oct 2019

Dismantling Monuments, Richard H. Seamon

Florida Law Review

The Antiquities Act of 1906 authorizes the President to “declare” certain objects “to be national monuments,” and to “reserve parcels of land” to protect those national monuments. The Act does not expressly authorize the President to reduce or rescind a monument established by a prior President under the Act, and recent actions by President Donald Trump raise the question whether the Act impliedly authorizes such reductions or rescissions. The majority of legal scholars who have studied this question have said no, the Act does not grant such implied authority. This Article takes the contrary position. The President’s authority underthe ...


Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters Oct 2019

Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Complaints about excessive economic burdens associated with regulation abound in contemporary political and legal rhetoric. In recent years, perhaps nowhere have these complaints been heard as loudly as in the context of U.S. regulations targeting the use of coal to supply power to the nation’s electricity system, as production levels in the coal industry dropped nearly by half between 2008 and 2016. The coal industry and its political supporters, including the President of the United States, have argued that a suite of air pollution regulations imposed by the U.S. Environmental Protection Agency (EPA) during the Obama Administration ...


Developing A Law School Course On Presidential Impeachment, Gregory S. Crespi Oct 2019

Developing A Law School Course On Presidential Impeachment, Gregory S. Crespi

SMU Law Review Forum

This short essay discusses my motivation for and the process that I went through over the past two years developing a law school course on Presidential Impeachment and related topics. I recommend that those law school faculty members who may have only a modest constitutional law background, but who feel as I do that more sustained discussion of the questions that would be presented by an attempt to remove President Trump from office through impeachment are called for, consider also developing and offering such a course.

I found that through reading a few accessible books and supervising a handful of ...


Article Ii And Antidiscrimination Norms, Aziz Z. Huq Oct 2019

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings ...


When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen Pita Loor Oct 2019

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen Pita Loor

Faculty Scholarship

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives — and their emergency management law enforcement actors — when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I choose ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University 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 Sep 2019

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

Neal E. Devins

No abstract provided.


Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins Sep 2019

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Neal E. Devins

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation ...


The Steel Seizure Case: One Of A Kind?, Neal Devins, Louis Fisher Sep 2019

The Steel Seizure Case: One Of A Kind?, Neal Devins, Louis Fisher

Neal E. Devins

No abstract provided.


The Line Item Veto: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, United States Senate, One Hundred First Congress, First Session, Paul Simon, Arnold Cantor, Neal Devins, Louis Fisher Sep 2019

The Line Item Veto: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, United States Senate, One Hundred First Congress, First Session, Paul Simon, Arnold Cantor, Neal Devins, Louis Fisher

Neal E. Devins

No abstract provided.


The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash Sep 2019

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

Neal E. Devins

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 ...


Signing Statements And Divided Government, Neal Devins Sep 2019

Signing Statements And Divided Government, Neal Devins

Neal E. Devins

No abstract provided.


Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis Sep 2019

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Neal E. Devins

No abstract provided.


How Successfully Can The States' Item Veto Be Transferred To The President?, Louis Fisher, Neal Devins Sep 2019

How Successfully Can The States' Item Veto Be Transferred To The President?, Louis Fisher, Neal Devins

Neal E. Devins

No abstract provided.


The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove Sep 2019

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Tara L. Grove

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 ...


Standing Outside Article Iii, Tara Leigh Grove Sep 2019

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 ...


Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins Sep 2019

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

Tara L. Grove

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 Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone Sep 2019

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Linda A. Malone

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back ...


The Erosion Of Congressional Checks On Presidential Power, Neal Devins Sep 2019

The Erosion Of Congressional Checks On Presidential Power, Neal Devins

Neal E. Devins

No abstract provided.


Congressional-Executive Information Access Disputes: A Modest Proposal - Do Nothing, Neal Devins Sep 2019

Congressional-Executive Information Access Disputes: A Modest Proposal - Do Nothing, Neal Devins

Neal E. Devins

No abstract provided.


Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins Sep 2019

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

Neal E. Devins

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 ...


Congress, Civil Liberties, And The War On Terrorism, Neal Devins Sep 2019

Congress, Civil Liberties, And The War On Terrorism, Neal Devins

Neal E. Devins

In exercising his war-making powers, the President has historically pursued war-related initiatives that implicate civil liberties. Meanwhile, the Congress, with little incentive to resist these initiatives, has played a steadily declining role in warmaking. In this Essay, Professor Devins examines this dynamic, and argues that with Congress largely standing on the sidelines as the President leads the nation in war, it is the American public that has become the principal check on the powers of the President in wartime.


Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins Sep 2019

Averting Government By Consent Decree: Constitutional Limits On The Enforcement Of Settlements With The Federal Government, Jeremy A. Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


Abdication By Another Name: An Ode To Lou Fisher, Neal Devins Sep 2019

Abdication By Another Name: An Ode To Lou Fisher, Neal Devins

Neal E. Devins

No abstract provided.


Bring Back The Draft?, Neal Devins Sep 2019

Bring Back The Draft?, Neal Devins

Neal E. Devins

No abstract provided.


Congressional Administration Of Foreign Affairs, Rebecca Ingber Sep 2019

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does ...


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers Sep 2019

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Jeffrey Lubbers

No abstract provided.


On Environmental, Climate Change & National Security Law, Mark P. Nevitt Sep 2019

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

Faculty Scholarship at Penn Law

This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement ...


Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies Sep 2019

Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Presidential War Powers And Humanitarian Intervention, Michael J. Sherman Sep 2019

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The ...