President/Executive Department Commons^™

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.

A Separation Of Powers Analysis Of Forum Non Conveniens’ Adequate Available Forum, Jason S. Palmer

St. John's Law Review

(Excerpt)

“Boehner snubs [White House], invites Netanyahu to address Congress.” These words, or words remarkably similar, headlined newspapers all around the United States on January 21, 2015. Without consulting President Obama, House Speaker John Boehner invited Israeli Prime Minister Benyamin Netanyahu to address a joint session of Congress in opposition to the White House’s overtures to Iran with respect to its nuclear program. Speaker Boehner extended the invitation in apparent response to President Obama’s State of the Union Address, in which he informed Congress that any further economic sanctions bill against Iran at that time would be detrimental to ongoing …

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …

The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco

St. John's Law Review

(Excerpt)

Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, …

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.

Legalism And Decisionism In Crisis, Noa Ben-Asher

Faculty Publications

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is …

Legal Holes, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt[] the executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial …