Open Access. Powered by Scholars. Published by Universities.®
President/Executive Department Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (59)
- Law and Politics (16)
- Legislation (15)
- Courts (12)
- Supreme Court of the United States (11)
-
- Legal History (10)
- Military, War, and Peace (10)
- Judges (7)
- National Security Law (7)
- Administrative Law (5)
- Jurisprudence (5)
- Law and Society (5)
- Civil Rights and Discrimination (4)
- Criminal Procedure (4)
- First Amendment (4)
- International Law (4)
- Legal Remedies (4)
- Agency (3)
- Comparative and Foreign Law (3)
- Human Rights Law (3)
- State and Local Government Law (3)
- Common Law (2)
- Conflict of Laws (2)
- Criminal Law (2)
- Election Law (2)
- Health Law and Policy (2)
- International Humanitarian Law (2)
- Jurisdiction (2)
- Institution
-
- University of Michigan Law School (19)
- Pepperdine University (7)
- Chicago-Kent College of Law (6)
- University of Richmond (6)
- University of Georgia School of Law (4)
-
- Maurer School of Law: Indiana University (3)
- Touro University Jacob D. Fuchsberg Law Center (3)
- Northwestern Pritzker School of Law (2)
- Penn State Dickinson Law (2)
- University of Arkansas at Little Rock William H. Bowen School of Law (2)
- University of Maine School of Law (2)
- Cleveland State University (1)
- Fordham Law School (1)
- Loyola Marymount University and Loyola Law School (1)
- Marquette University Law School (1)
- Minnesota State University, Mankato (1)
- New York Law School (1)
- Pace University (1)
- Seattle University School of Law (1)
- University of Kentucky (1)
- University of New Hampshire (1)
- University of the District of Columbia School of Law (1)
- Publication Year
- Publication
-
- Michigan Law Review (11)
- Chicago-Kent Law Review (6)
- Pepperdine Law Review (6)
- University of Richmond Law Review (6)
- Georgia Journal of International & Comparative Law (3)
-
- Touro Law Review (3)
- University of Michigan Journal of Law Reform (3)
- Dickinson Law Review (2017-Present) (2)
- Maine Law Review (2)
- Michigan Journal of International Law (2)
- Northwestern University Law Review (2)
- University of Arkansas at Little Rock Law Review (2)
- Antioch Law Journal (1)
- Cleveland State Law Review (1)
- Fordham Law Review (1)
- Georgia Law Review (1)
- Indiana Journal of Constitutional Design (1)
- Indiana Journal of Global Legal Studies (1)
- Indiana Law Journal (1)
- Journal of the National Association of Administrative Law Judiciary (1)
- Kentucky Law Journal (1)
- Loyola of Los Angeles Law Review (1)
- Marquette Law Review (1)
- Michigan Journal of Gender & Law (1)
- Michigan Law Review First Impressions (1)
- Michigan Telecommunications & Technology Law Review (1)
- NYLS Law Review (1)
- Pace Law Review (1)
- Seattle University Law Review (1)
- Speaker & Gavel (1)
Articles 1 - 30 of 67
Full-Text Articles in President/Executive Department
“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder
“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder
Touro Law Review
In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …
Impeachment As A ‘Madisonian Device’ Reconsidered, Amanda Hollis-Brusky
Impeachment As A ‘Madisonian Device’ Reconsidered, Amanda Hollis-Brusky
Chicago-Kent Law Review
No abstract provided.
Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent
Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent
Chicago-Kent Law Review
No abstract provided.
The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn
The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn
Chicago-Kent Law Review
No abstract provided.
The Senate, The Trump Impeachment Trial And Constitutional Morality, Joel K. Goldstein
The Senate, The Trump Impeachment Trial And Constitutional Morality, Joel K. Goldstein
Chicago-Kent Law Review
No abstract provided.
Like “Nobody Has Ever Seen Before”: Precedent And Privilege In The Trump Era, Heidi Kitrosser
Like “Nobody Has Ever Seen Before”: Precedent And Privilege In The Trump Era, Heidi Kitrosser
Chicago-Kent Law Review
No abstract provided.
The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum
The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum
Dickinson Law Review (2017-Present)
This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.
This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …
Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn
Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn
Touro Law Review
No abstract provided.
Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff
Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff
Seattle University Law Review
Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.
Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …
Rethinking The Federal Courts: Why Now Is Time For Congress To Revisit The Number Of Judges That Sit On Federal Appellate Panels, Mitchell W. Bild
Rethinking The Federal Courts: Why Now Is Time For Congress To Revisit The Number Of Judges That Sit On Federal Appellate Panels, Mitchell W. Bild
Chicago-Kent Law Review
No abstract provided.
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
University of Michigan Journal of Law Reform
When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
Dickinson Law Review (2017-Present)
It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …
The Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley
The Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley
NYLS Law Review
No abstract provided.
Presidential War Powers And Humanitarian Intervention, Michael J. Sherman
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 same? …
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
Indiana Journal of Global Legal Studies
President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …
The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman
The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman
Cleveland State Law Review
History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to …
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
Pepperdine Law Review
The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the …
Disgorging Emoluments, Caprice L. Roberts
Disgorging Emoluments, Caprice L. Roberts
Marquette Law Review
This Article is about unjust enrichment. It includes a theory of an unjust
enrichment cause of action against executive actors who receive unlawful
emoluments. Interpretations of the boundaries of unlawful emoluments range
from receipt of a gift or benefit because of the position of power held to quid
pro quo exchanges of a thing of value in exchange for government information
or advantage. Wherever the proper line, the purpose of the law of unjust
enrichment is to prevent and undo benefits one has no right to retain. It
achieves those goals with the use of restitution remedies including
disgorgement of …
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
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 in Trump …
Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober
Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Indian Nations And The Constitution, Joseph William Singer
Indian Nations And The Constitution, Joseph William Singer
Maine Law Review
This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between …
Acknowledgments, Andrew E. Hemby
Acknowledgments, Andrew E. Hemby
University of Richmond Law Review
No abstract provided.
“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan
“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan
Maine Law Review
On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate …
Preventing Presidential Disability Within The Existing Framework Of The Twenty-Fifth Amendment, Ryan T. Harding
Preventing Presidential Disability Within The Existing Framework Of The Twenty-Fifth Amendment, Ryan T. Harding
University of Arkansas at Little Rock Law Review
No abstract provided.
Realizing An Opportunity: Limiting The Power Of The Executive In The Iraqi Constitution, Cory Kopitzke
Realizing An Opportunity: Limiting The Power Of The Executive In The Iraqi Constitution, Cory Kopitzke
Indiana Journal of Constitutional Design
In the summer of 2015, Iraqi citizens took to the streets in protest. After going without essential services, such as electricity, in the sweltering heat and after enduring corruption that undermined Iraqi forces battling the Islamic State, these citizens called for meaningful changes in the management of the Iraqi government and for the fulfillment of “democratic aspirations” enshrined in the Iraqi Constitution. In response to these protests, Iraqi Prime Minister, Haider al-Abadi, proposed sweeping reform measures to combat the decisive divides in the current administration. These reforms called for drastic change—including the elimination of the vice-president and deputy prime minister …
The Original Meaning Of "Emoluments" In The Constitution, Robert G. Natelson
The Original Meaning Of "Emoluments" In The Constitution, Robert G. Natelson
Georgia Law Review
THE ORIGINAL MEANING OF
"EMOLUMENTS" IN THE CONSTITUTION
Robert G. Natelson*
This Article explores the original meaning of the
word "Emolument(s)" in the Constitution. It identifies
four common definitions in founding-era political
discourse. It places the constitutional use within its
context as part of a larger reform movement in Britain
and America and as driven by other historical events.
The Article examines how the word was employed in
contemporaneous reform measures, in official
congressional and state documents, in the
constitutional debates, and in the constitutional text.
The author concludes that the three appearances of
"emoluments" in the Constitution had a …
War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford
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.
Maintaining Institutional Power And Constitutional Principles: A Rhetorical Analysis Of United States V. Nixon, R. Scott Medsker, Todd F. Mcdorman
Maintaining Institutional Power And Constitutional Principles: A Rhetorical Analysis Of United States V. Nixon, R. Scott Medsker, Todd F. Mcdorman
Speaker & Gavel
In examining these implications we argue that the Court’s Nixon decision was a uniquely strategic response to a complex rhetorical situation. In fact, the elements of the situation were so fundamental to the tenor of the Court’s response that this essay’s framework is drawn from Lloyd F. Bitzer’s construction of the rhetorical situation. The use of this system will allow for deeper consideration of the context of United States v. Nixon as well as assessment of the legal text as responsive to that context.
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
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 …